State v. Gilkey

                                      752

Argued and submitted May 3, 2021, reversed and remanded February 24, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  JONATHAN DAVIS GILKEY,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      18CR84967; A172264
                                  

     Defendant appeals a judgment of conviction for felon in possession of a firearm and the unlawful possession of heroin. He asserts that the trial court erred
in admitting evidence that was obtained by an unlawful extension of a stop,
which included questions about his incarceration history based on the appearance of his tattoos. The state responds that this was a permissible inquiry under
the officer-safety exception to the warrant requirement. Held: Under the requirements of State v. Jimenez, 

, 

 (2015), the state failed to
show that the questions about incarceration based on defendant’s appearance
were objectively reasonable to address a circumstance-specific threat to the officer’s safety. Furthermore, the state failed to prove that the evidence discovered
was attenuated from the illegality. Accordingly, the trial court erred by denying
the motion to suppress.
    Reversed and remanded.



    Angel Lopez, Judge.
   Eric Johansen, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public Defense
Services.
   David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
    JAMES, P. J.
    Reversed and remanded.
Cite as 

 (2022)                                  753

         JAMES, P. J.
         Defendant appeals from a judgment of conviction for
one count of felon in possession of a firearm, ORS 166.270(1),
and unlawful possession of heroin, ORS 475.854(2)(b). A
deputy sheriff stopped defendant for a traffic violation and
developed reasonable suspicion that defendant had stolen
the vehicle he was driving. During the encounter, the deputy observed tattoos on defendant that he thought might be
indicative of defendant having been in prison. Based on those
tattoos, the deputy delayed his investigation and instead
asked defendant questions about his incarceration history,
as an indirect means to assess the risk that he might be
armed. The deputy never asked defendant directly whether
he had any weapons. Based on the totality of circumstances,
which included defendant’s acknowledgment that he had
been incarcerated, the deputy ordered defendant to submit
to a patdown. He found a weapon and controlled substances
as a result.
         Defendant moved to suppress the evidence. He argues
that the deputy unlawfully extended the encounter by questioning him about his incarceration history, which was
unrelated to the stolen vehicle investigation. In response,
the state argues, in accord with the trial court’s reasoning,
that the question about incarceration was justified under
the officer-safety exception to the warrant requirement. The
state does not dispute that the question extended the stop, in
a constitutional sense. And because, as previously noted, the
deputy never directly asked defendant whether he had any
weapons, we are not called upon to determine whether the
deputy could have made a direct weapons inquiry. Instead,
as framed by the parties, the only issue before us is whether
asking defendant about his incarceration history was justified under the officer-safety exception.
        So framed, this case presents a nuance on the weapons inquiry issue in State v. Miller, 

, 

, adh’d to as modified on recons, 

, 

 (2018) (internal citations omitted). There, the Oregon
Supreme Court held that
   “[t]he issue we resolve is whether the officer’s single question about a firearm unlawfully extended the stop. Unlike
754                                             State v. Gilkey

   conducting a search for weapons during a lawful stop, which
   must be justified by reasonable suspicion that the citizen
   ‘might pose an immediate threat of serious physical injury’
   and must be based on factors particular to the detained
   person, asking a question that is reasonably related to and
   reasonably necessary to effectuate a lawful investigative
   stop requires no independent constitutional basis and no
   circumstances particular to the detained person. … On
   this record, we accept the trial court’s implicit finding
   that the officer subjectively perceived a danger from the
   circumstances attendant to a roadside DUII investigation
   and decided that an inquiry about weapons was necessary
   to address that danger. We also conclude that the officer’s
   question was reasonably related to and reasonably necessary to effectuate his DUII investigation because we conclude that he ‘perceived a circumstance-specific danger’
   that necessitated the question about weapons and that his
   ‘perception and decision [to ask about weapons] were objectively reasonable.’ ”
(Emphases in original.)
         In this case, as we will discuss, there is no dispute
that the officer had a reasonable perceived safety concern.
The issue is whether his question—which was not the weapons inquiry of Miller, but something more tangential—was
“reasonably related” to that perceived safety concern. On
this record, we conclude that it was not. Under the totality
of the circumstances, the officer did not have an objectively
reasonable basis as required by Article I, section 9, of the
Oregon Constitution to ask defendant questions about his
incarceration history. Because that is the only issue before
us—the state does not dispute that the stop was extended if
that is the case—we reverse and remand.
         We review a trial court’s denial of a motion to suppress for legal error, and we are bound by the trial court’s
findings of historical fact as long as there is constitutionally
sufficient evidence in the record to support those findings.
State v. Ehly, 

, 

 (1993). To the
extent that the trial court failed to make express findings
on pertinent historical facts, we will presume that the court
found those facts in a manner consistent with its ultimate
conclusion. State v. Maciel-Figueroa, 

,

 (2017).
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 (2022)                              755

         The following facts are taken from the Deputy
Farmer’s testimony that the trial court found credible at the
hearing on defendant’s motion to suppress. On December 22,
2018, Farmer was on routine patrol in a residential area
during the daytime hours and noticed an older model vehicle driven by defendant. He described the vehicle as having
“very prominent damage” to the passenger side and damage
to the front windshield. Farmer had previously come across
stolen vehicles in the area, and it was his practice to check
the license plates of older sedans against a DMV database
to determine if they matched the vehicle. The results indicated that the plates on defendant’s vehicle were for a different make of car. Farmer followed defendant’s vehicle to an
area where multiple stolen vehicles had been recovered, and
he observed defendant attempt to make a “rapid U-turn” in
a cul-de-sac. At that point, Farmer initiated a traffic stop
for the incorrect plates, which is a violation under ORS
803.550(3)(a).
         Farmer testified that the incorrect plates and the
circumstances of the stop led him to develop reasonable suspicion that the vehicle was stolen; defendant does not contend on appeal that Farmer lacked reasonable suspicion. To
determine whether or not the vehicle was stolen, the deputy needed to ascertain the vehicle’s identification number
or “VIN.” When Farmer spoke to defendant, he responded
that he had no proof of insurance or registration because
the car belonged to his friend. Defendant identified himself
with an out-of-state identification card. Farmer recognized
this as a common response from suspects in previous stolen
vehicle investigations. Furthermore, Farmer observed that
defendant had “prominent tattooing” on his body. Based
on Farmer’s experience, he interpreted this as “potentially
prison tattooing” and inquired about defendant’s incarceration history. Defendant responded that he had been
incarcerated.
      “[DEPUTY FARMER:] So I’m speaking to Mr. Gilkey
   about this. I also noticed he had prominent tattooing,
   which, you know, is nothing prejudicial, but based on the
   appearance of the tattoos, my prior experience as a correctional officer, it looked as though it was potentially
   prison tattooing. And I know that incarcerated males with
756                                                         State v. Gilkey

    extensive tattooing who have been in the prison system are
    commonly associated with criminal gangs, which can be
    very violent, and a lot of those members outside of prison
    tend to carry weapons. So I had asked him about that, just
    because I noticed it and observed it.
       “[PROSECUTOR:] What did you specifically say or
    ask him if you remember?
       “[DEPUTY FARMER:] I asked him if he’d ever been
    incarcerated, and Mr. Gilkey told me that he had, but said
    he hadn’t done prison time, which we later found was false.
        “[PROSECUTOR:]           Okay. So what do you do next?
       “[DEPUTY FARMER:] So based on the totality of
    everything, I had requested a cover deputy, which ended up
    being Deputy Delatorre who arrived shortly thereafter.”
         Farmer did not testify that he ever asked defendant
if he possessed any weapons. While the deputy waited for
cover, defendant was seated in the vehicle’s driver seat with
his hands visible, the ignition had been turned off, and the
keys handed over at Farmer’s request.
        When the cover deputy arrived, Farmer instructed
defendant that he needed to check the car’s VIN.1 However,
Farmer did not simply order defendant to exit the vehicle
and stand with the cover officer while he checked the VIN;
instead, as Farmer explained, based in part on the tattoos
and incarceration history, he asked defendant to assume
a position against the vehicle and submit to a patdown
search:
    “So I told Mr. Gilkey what I wanted to do to be able to
    facilitate [checking the VIN] was have him step out of the
    vehicle. I also told him, and this I didn’t tell him necessarily why, but in my own mind all these justifications I just
    mentioned, I told him I’d like to be able to pat him down for
    weapons, make sure that he wasn’t holding any of those.”
    1
      At the motion to suppress hearing, the deputy was questioned about when
and how he read the VIN numbers that were integral to his stolen vehicle investigation. When asked if the damage to the windshield affected his ability to read
the VIN, the deputy could not recall. The deputy testified that the VIN can be
read in multiple locations on the vehicle, and the deputy’s practice was to read
both the dashboard VIN and the door VIN to ensure that they both matched the
vehicle. The deputy did not attempt to read any VIN until defendant was out of
the vehicle and under the control of the cover deputy.
Cite as 

 (2022)                                  757

         Throughout this encounter, defendant was cooperative and acted normally. The deputies were standing on
opposite sides of defendant. Defendant was asked to turn and
place his hands on the car with his legs separated. Before he
commenced the patdown, Farmer noticed a syringe in defendant’s open pocket. The deputy asked defendant what was
in his pocket, and he replied that it was “a rig.” After some
back and forth, defendant confirmed that it was a syringe
that contained heroin. The deputy placed him under arrest
for possession of a controlled substance, handcuffed him,
and removed the syringe. At that point, defendant told the
deputy that he would find a gun in his pocket. Defendant
was Mirandized shortly thereafter and charged with possession of heroin and felon in possession of a firearm.
         Article I, section 9, protects the rights of citizens “to
be secure in their persons … against unreasonable search,
or seizure[.]” Warrantless seizures are per se unreasonable
unless they fall within one of the well delineated exceptions
to the warrant requirement. One of those exceptions, the
investigatory-stop exception, permits the “brief detention of
citizens under circumstances not justifying an arrest, for
purposes of limited inquiry in the course of routine police
investigations” as long as police have reasonable suspicion
of a crime. State v. Cloman, 

, 

 (1969)
(quoting Wilson v. Porter, 361 F2d 412, 414-15 (9th Cir 1966)).
Investigatory stops are limited in duration and scope:
   “Whether an officer is investigating criminal or unlawful noncriminal activity, the officer’s authority to stop an
   individual—based on reasonable suspicion of criminal
   activity or on probable cause of unlawful noncriminal
   activity—is founded on the assumption that temporary,
   investigative stops to investigate particular conduct are
   permitted for that particular purpose only. It therefore follows that limits apply to an officer’s ability, during such a
   stop, to use that stop for other purposes.”
State v. Arreola-Botello, 

, 

 (2019)
(footnote omitted). In other words, “it is ‘the justification for
the stop’ that ‘delineates the lawful bounds of the traffic
stop.’ ” 

 (quoting State v. Watson, 

, 

 (2013)). “Thus, when determining whether a stop that
was reasonable at the outset has become unreasonable,” we
758                                               State v. Gilkey

“consider the totality of its circumstances,” and the stop is
“subject to both subject-matter and durational limitations.”
Id. at 711-12.
         In this case, the state does not dispute that the deputy’s questions about tattoos and incarceration extended the
stop. Rather, the state argues that any temporal extension
was lawful, as the inquiries were permissible under the
officer-safety doctrine. In State v. Bates, 

,

 (1987), the Supreme Court held:
   “Article I, section 9, of the Oregon Constitution does not
   forbid an officer to take reasonable steps to protect himself
   or others if, during the course of a lawful encounter with a
   citizen, the officer develops a reasonable suspicion, based
   upon specific and articulable facts, that the citizen might
   pose an immediate threat of serious physical injury to the
   officer or to others then present.”
         Under the officer-safety doctrine, the state bears
a two-part burden of proof and persuasion. First, the state
must prove the subjective component of officer safety, establishing that: (1) based on specific and articulable facts
known to the officer, the officer (2) had subjective reasonable
suspicion, that (3) the defendant posed an immediate threat,
and (4) the threat was of serious physical injury. State v.
Hendricks, 

, 

, rev den, 

 (2007). If the state can meet its burden to establish
the subjective component, it then bears the burden to prove
that, under the totality of the circumstances, “(1) the officer’s subjective safety concerns of an immediate threat of
serious physical injury were objectively reasonable, and that
(2) the officer’s response to the safety concerns was, itself,
objectively reasonable.” State v. Ramirez, 

, 

 (2020).
         This case requires us to focus on that final element:
the objective reasonableness of an officer’s response to a
perceived safety concern, specifically, questioning a defendant. In Jimenez, the Supreme Court explained that “when
an officer has seized an individual and has a constitutional
basis to continue to temporarily detain and question him
or her,” the officer may ask questions that are “reasonably
related to and reasonably necessary to effectuate” the officer’s investigation. State v. Jimenez, 

, 353
Cite as 

 (2022)                                    

 (2015). However, when the officer asks a question
that is not reasonably related to the reason for the stop, the
question extends the stop, and Article I, section 9, requires
that there be an independent basis to justify the extension.
State v. Pichardo, 

, 

 (2017).
        The most straightforward inquiry is, of course,
a weapons inquiry. An officer cannot justify his questions
about weapons as a routine inquiry that ignores the circumstances of stop:
   “For a weapons inquiry conducted in the course of a traffic investigation to be reasonably related to that investigation and reasonably necessary to effectuate it, an officer
   must have reasonable, circumstance-specific concerns for
   the officer’s safety or the safety of other persons who are
   present. To justify an officer’s weapons inquiry, the officer’s safety concerns need not arise from facts particular
   to the detained individual; they can arise from the totality
   of the circumstances that the officer faces. However, if the
   officer does not have at least a circumstance-specific safety
   concern, then the officer’s weapons inquiry has no logical
   relationship to the traffic investigation. And, if the officer’s
   circumstance-specific safety concerns are not reasonable,
   then an officer who acts on those concerns violates Article I,
   section 9, which protects the people from an ‘unreasonable
   search, or seizure.’ ”
Jimenez, 

. In other words, for the state to establish that a question survives the Jimenez test, it must present evidence that (1) the officer perceived a circumstance-specific danger, and that perception was objectively
reasonable, and (2) the officer decided that the questions
asked were necessary to address that danger, and it is objectively reasonable that those questions would ameliorate or
clarify the safety concern. 

. In Jimenez, the officer
failed to demonstrate a circumstance-specific safety concern
because he was in the practice of making a routine weapons
inquiry for virtually every stop, and he did not testify that
he had reasonable, circumstance-specific safety concerns for
the stop in question. 

         Applying those principles here, we begin by noting
that at the time of the stop for the traffic violation, Farmer
had observed damage to the vehicle, and it was in a vicinity
760                                                         State v. Gilkey

where other vehicles had been stolen. He also noticed defendant make rapid movements while he was driving. Farmer
knew that he would need to verify the VIN to confirm that
the vehicle was not reported stolen. Accordingly, in his training and experience, he knew he would have to ask defendant
to step out of the car to safely check the VIN. He testified
that in his experience “[i]f somebody has weapons or something concealed in [the car], it’s very, very dangerous for us.”
         The state argues that the deputy’s questions about
tattoos and incarceration serve a purpose tantamount to
asking about weapons: “Farmer asked about defendant’s
tattoos and incarceration history based on his knowledge
that the kinds of tattoos he saw on defendant were associated with violent prison gangs, and that members of those
gangs who were outside of prison tend to carry weapons.”
We disagree with that characterization of the deputy’s testimony, and with the conclusions that the state draws from
this record. The deputy did not testify that he saw tattoos
that signified defendant’s affiliation with a particular gang.
Instead, the deputy recognized tattoos that might be associated with that “type” of group or what Farmer testified to
as “potentially prison tattooing.” Further, and critically, the
deputy was focused, not on the specific tattoos, but on how
many tattoos defendant had, testifying that he associated
“extensive tattooing” with “criminal gangs.” In short, the
deputy associated extensive, “potential” tattooing with people who might be dangerous, and who might carry weapons
outside of prison. In effect, the state asks us to speculate.
We cannot. Article I, section 9, does not permit fishing expeditions under the guise of officer safety.
         Ultimately, an officer’s actions must connect the
inquiry—here, the questions about incarceration and
tattoos—to the officer’s articulated perception of the
circumstance-specific danger.2 Miller, 363 Or at 385-86.
In Miller, an officer had adequately explained the circumstances that caused him to be concerned for his safety. Id. at
385. The officer articulated the safety hazards of conducting
    2
      On cross-examination, Farmer testified that, “I spoke to him about his tattoos and potential previous incarceration history.” When specifically asked if he
spoke with defendant about his tattoos, he responded, “I asked him if he’d ever
been incarcerated.”
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 (2022)                               761

a field sobriety test in the early hours of the morning. 

 In
response, he asked a direct and simple weapons inquiry. He
further described the reason why a weapons inquiry was
necessary because of the hazard a weapon would pose during
the DUII investigation. Furthermore, the Miller court found
that the officer’s question about a firearm addressed the
circumstance-specific danger because it was asked before
conducting the field sobriety tests.
          In contrast to Miller, we fail to see how the deputy’s
inquiry here about incarceration was relevant to, ameliorated, or clarified, the perceived safety threat. The question about incarceration—built as it was upon assumptions
about appearances, associations, and vague predilections of
groups—did little, if anything, to establish whether defendant was armed. Jimenez explains that “[t]o demonstrate
that an officer’s weapons inquiry is reasonably related to a
traffic investigation and reasonably necessary to effectuate
it, the state must present evidence that … the officer’s perception and decision were objectively reasonable.” Jimenez,

. We cannot conclude that standard was met
on this record.
         We recognize that police officers must have latitude in deciding how to protect themselves when confronted
with the dangerous situations they frequently face. State v.
Payne, 

, 

 (2021). But those
safety measures must be reasonable, and our determination of what is a reasonable officer-safety measure must
be mindful of the realities that attend both to policing and
being policed—in equal measure. Ramirez, 

. Here, the circuitous, propensity-based inquiry about
defendant’s incarceration history was predicated on speculation about the appearance of defendant’s tattoos. These
questions did not address a circumstance-specific threat
to officer safety, and they were not objectively reasonable.
A question about weapons might have satisfied the test
Jimenez requires, but the inquiry here did not.
        Nor can we conclude that the evidence discovered
was attenuated from the illegality. In its briefing, the state,
in a single sentence, asserts that any evidence discovered
is not “tainted” by any illegality. But beyond that single
762                                             State v. Gilkey

utterance, the state develops no attenuation argument.
When the state has obtained evidence following the violation of a defendant’s rights under Article I, section 9, we
presume “that the evidence was tainted by the violation and
must be suppressed.” State v. Jackson, 

,

 (2014) (citing State v. Unger, 

, 

 (2014)). The state may rebut that presumption by
proving that the police did not exploit the unlawful police
conduct to obtain the challenged evidence—that is, that the
unlawful police conduct was “independent of, or only tenuously related to” the disputed evidence—attenuation. State
v. Benning, 

, 

 (2015) (quoting State v. Hall, 

, 

 (2005)); see, e.g.,
Unger, 

 (adhering to that requirement, as stated
in Hall). It is suppression, not attenuation, that is the default
operative position. The state bears the burden of proof and
persuasion that “the violation of defendant’s rights had such
a tenuous factual link to the disputed evidence that the
unlawful police conduct cannot be properly viewed as the
source of that evidence.” 

        Here, the state has developed no argument that, if
an illegality occurred, the subsequently derived evidence
was attenuated. And, as we noted earlier, Farmer testified
that he ordered defendant into the position against the car,
which is where he then saw into defendant’s pocket, based
in part on defendant’s tattoos and incarceration history.
Having concluded that justification for the officer’s questions
was flawed, we necessarily conclude that the encounter was
unlawfully extended under Article I, section 9, and that the
evidence derived from that encounter is tainted and should
be suppressed.
         Reversed and remanded.