State v. Brown

                                      713

Argued and submitted September 9, 2021, reversed and remanded April 6, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    AMANDA LYN BROWN,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      18CR54684; A170300
                                  

    Defendant appeals a judgment of conviction for felony possession of methamphetamine, ORS 475.894(2)(b) (2017), assigning error to the trial court’s denial
of her motion to suppress evidence obtained during an investigatory stop. She
contends that the stop violated Article I, section 9, of the Oregon Constitution
because the officer lacked reasonable suspicion that she had committed the crime
of unauthorized use of a motor vehicle (UUV) and, therefore, the court erred in
denying her motion to suppress evidence discovered during the stop. Held: The
totality of the circumstances—being a passenger in a suspected stolen car that
eluded police, and then walking away from the car without voluntarily making
contact with the police—was insufficient to provide objectively reasonable suspicion of the crime of UUV. Consequently, the trial court erred in denying defendant’s motion to suppress.
    Reversed and remanded.



    Beth L. Roberts, Judge.
   John Paul Evans, Deputy Public Defender, argued the
cause for appellant. On the brief were Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, and Erin J.
Snyder Severe, Deputy Public Defender, Office of Public
Defense Services.
   Patricia G. Rincon, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
General.
  Before Mooney, Presiding Judge, and Shorr, Judge, and
DeVore, Senior Judge.*
______________
   * Shorr, J., vice DeHoog, J. pro tempore.
714                        State v. Brown

  MOONEY, P. J.
  Reversed and remanded.
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           MOONEY, P. J.
         Defendant appeals a judgment of conviction for
felony possession of methamphetamine, ORS 475.894(2)(b)
(2017), amended by Ballot Measure 110 (2020), Or Laws
2021, ch 591, § 39,1 asserting two assignments of error. We
reject the first without discussion. As to defendant’s second assignment—that the trial court erred in denying her
motion to suppress evidence—we agree and, accordingly,
reverse and remand.
         We review the denial of a motion to suppress for legal
error, deferring to the trial court’s findings of historical fact
to the extent there is constitutionally sufficient evidence in
the record to support them. State v. Maciel-Figueroa, 

, 

 (2017). And, we “assume that
the trial court decided historical facts necessary to its legal
conclusions in a manner consistent with those conclusions.”
State v. Reyes-Herrera, 

, 

 (2021). In
this case, the pertinent facts are largely undisputed.
         Officer Pfaff, an 18-year veteran of the Tualatin
Police Department, was on patrol near Bridgeport Village
one afternoon when she saw an older black Acura make a
sudden lane change, crossing over a solid white line in violation of the traffic laws. Pfaff testified that older Acuras,
Hondas, and Toyotas are “easy targets” for theft and she
“pretty much make[s] it [her] practice to run every plate on
every older vehicle like that—that [she] see[s].” Pfaff ran the
license plate of the Acura and learned that it was registered
to two females in the Salem area and that the name associated with the registration “seemed like it was a Hispanic
name,” which did not match the male driver and female passenger in the Acura. She also learned that the car was not
reported as stolen.
        Pfaff decided to initiate a traffic stop, but the car
turned right into Bridgeport Village and quickly parked. As
it parked, the passenger—defendant—“looked directly at”
Pfaff. Pfaff acted disinterested, circled around, and then
came back into the parking lot where she could view the
    1
      We cite the 2017 version of the statute throughout this opinion, which was
the version in effect when defendant allegedly committed the offense.
716                                                State v. Brown

car. The driver had gotten out of the car at that point and
was standing at its rear with the trunk open; he did not see
Pfaff. Defendant was still seated in the car. After a short
time, the driver got back in the car and drove back onto
Bridgeport Road. Pfaff followed and, as she passed the car,
noticed that the front license plate was obscured by a license
plate cover. Pfaff briefly lost track of the car but spotted it
again near the rear entrance to a nearby business complex.
She testified that her suspicion
   “was that it was a stolen vehicle at the—for one thing. I definitely felt by the totality of the circumstances that there is
   criminal activity going on, you know, and it—it may have
   just been that he was a suspended driver, but something
   was going on with that vehicle, and I had reason to stop it,
   and was attempting to do so.”
When asked the basis for her suspicion that the car was stolen, she replied:
   “[T]he fact that it was from Salem, this it—everything
   about it was not—just seemed suspect. The registered
   owners, two females from Salem. I’ve got a male driving.
   The strange erratic driving behavior. The you know, quick
   park, which in my experience … has led me to investigations where people were up to criminal activity. His clear
   desire to avoid.”
Pfaff activated her overhead lights. The driver looked at her
and she pointed for him to park. He looked down at his lap,
then backed up and took off. Pfaff pursued. During the pursuit, the car sped down the center turn lane, almost crashed
a couple of times, went through a lighted intersection, and
eventually turned into the parking lot of a store. Pfaff lost
sight of the car for a short time, but found it again, parked
haphazardly in the middle of the lot, with the driver side
door open.
         Nobody was in the car, and Pfaff saw defendant
walking away. Defendant was not making eye contact and,
according to Pfaff, she was “obviously trying to avoid me.”
Pfaff immediately detained defendant in handcuffs “until
[she] could figure everything out for safety.” Pfaff described
being “on high alert” and that her safety concerns arose
from the fact that she did not know where the driver was,
Cite as 

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whether he was armed, and his frame of mind. The scene
was “very fluid, fast moving” and “chaotic.” She explained
that she detained defendant because she
    “believed that more likely than not at the least that—that
    was going to come back as a stolen vehicle. So the belief
    that she had been a passenger in a stolen vehicle. She’s
    leaving the scene, you know, that doesn’t really speak to
    a—a person of innocence if she had been in a vehicle and
    had not committed any kind of crimes, or had any information regarding those crimes, I would have expected she
    would stay in the vehicle and—and get police contact. So I
    didn’t know what was going on. I didn’t know if she’d been
    a (indiscernible) person in that vehicle. I had reason to
    detain her and speak with her about what she was doing
    and what was going on.”2
         Pfaff checked defendant for weapons, told her that
she was not free to leave, separated her from her purse, and
detained her in the back of her patrol car for a short time,
at one point driving out of the parking lot and then quickly
returning. Defendant was cooperative, telling Pfaff the
driver’s name and potential alias, and that he had left with
a McDonald’s bag that she believed had a gun in it. Pfaff
let defendant out of the patrol car, took off the handcuffs,
and returned her purse to her. Defendant pulled up a photograph of the driver from Facebook and gave it Pfaff to distribute to the other units in the area.
         Officer Powell then arrived on the scene; at that
point, defendant was seated on a short brick wall near Pfaff,
and her purse was close to her. Pfaff asked Powell to take a
statement from defendant. Powell knew only that a vehicle
had attempted to elude during a traffic stop, the driver had
fled, and the passenger was detained at the scene. Powell
immediately asked defendant if there were any weapons
inside her purse or “anything [he] would need to know
about.” Defendant responded that there were drugs in the
purse and, in response to further questioning, that the drugs
were methamphetamine. Powell handcuffed defendant and
put her in the back of his patrol car while he conducted a
records check, which revealed that she was on supervision.
     2
       Pfaff later clarified that she did not know if defendant was a kidnap victim
or if she might need medical care.
718                                                            State v. Brown

After contacting defendant’s supervision officer, Powell formally arrested defendant, read her her Miranda rights, and
searched her purse. The search revealed a capped syringe
with a dark substance and a few plastic baggies, which
defendant admitted contained methamphetamine.
         Defendant was charged with unlawful possession
of methamphetamine, ORS 475.894. She moved to suppress
the evidence obtained during the stop, contending that the
warrantless seizure and search violated Article I, section 9,
of the Oregon Constitution.3 The trial court denied the
motion, concluding that, “based on the totality of the circumstances, Officer Pfaff had reasonable suspicion to investigate this defendant for the crime of Unauthorized Use of
a Motor Vehicle [UUV], and she was properly detained.”
The court also found that Officer Powell “clearly articulated his officer safety concerns, and those are reasonable
given the totality of the circumstances, and his lack of personal knowledge regarding the defendant’s interaction with
Officer Pfaff.” And, the court found that defendant “admitted to the drugs[, a] detainer was issued[,] and the search
was made incident to arrest.”
        A bench trial was held, and the court found defendant guilty. She appeals the ensuing judgment of conviction.
          Defendant maintains on appeal that the trial court
erred in denying her motion to suppress, contending, among
other arguments, that Pfaff lacked reasonable suspicion
to detain her and, even if the stop was lawful, there was
no objectively reasonable officer-safety justification for the
degree or duration of her detention. She further contends
that Powell’s question about the contents of her purse was
not based on a reasonable, circumstance-specific concern
for officer safety. As explained below, we agree with defendant’s first argument—that the trial court erred in concluding that the stop was supported by reasonable suspicion of
UUV, thus it violated Article I, section 9—and we reverse
and remand on that basis. We therefore need not address
defendant’s alternative arguments.
    3
      Article I, section 9, provides, in part, that “[n]o law shall violate the right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable search, or seizure[.]”
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          As noted, Article I, section 9, protects against warrantless searches and seizures. There is no dispute that this
case involves a “stop” of defendant—that is, the type of seizure “that is a temporary detention for investigatory purposes.” 4 Maciel-Figueroa, 

. The question is
whether the stop was lawful under Article I, section 9, which
we assess under the principles outlined in Maciel-Figueroa:
    “For police officers to make a stop, they must reasonably
    suspect—based on specific and articulable facts—that the
    person committed a specific crime or type of crime or was
    about to commit a specific crime or type of crime. For a
    court to determine that an investigative stop was lawful
    under Article I, section 9, the court (1) must find that the
    officers actually suspected that the stopped person had
    committed a specific crime or type of crime, or was about
    to commit a specific crime or type of crime, and (2) must
    conclude, based on the record, that the officers’ subjective
    belief—their suspicion—was objectively reasonable under
    the totality of the circumstances existing at the time of the
    stop.”

. The officer’s suspicion “must be particularized to
the individual based on the individual’s own conduct.” State
v. Kreis, 

, 

 (2019). It “requires
less than probable cause but more than mere speculation.”

         Here, the trial court concluded that Pfaff had reasonable suspicion to stop defendant for the crime of UUV,
ORS 164.135 (2017), amended by Or Laws 2019, ch 530, § 1.5
Implicit in the court’s conclusion is a finding that Pfaff subjectively believed that defendant had committed or was about
to commit UUV. See Reyes-Herrera, 

 (explaining that we “assume that the trial court decided historical
facts necessary to its legal conclusions in a manner consistent with those conclusions”). Defendant contends, first, that
    4
      There is not, for example, any contention that Pfaff detained defendant as
a potential material witness to a crime. See State v. Fair, 

, 

 (2013) (articulating the constitutional requirements for a “stop and temporary on-the-scene detention of a likely material witness”).
    5
      ORS 164.135 (2017) provided, as relevant:
        “(1) A person commits the crime of unauthorized use of a vehicle when:
        “(a) The person takes, operates, exercises control over, rides in or otherwise uses another’s vehicle, boat or aircraft without consent of the owner[.]”
720                                                            State v. Brown

the record does not support the court’s implicit finding as to
Pfaff’s subjective belief and, second, that even if it does, that
belief was not objectively reasonable.
          Defendant’s first contention presents a close question on this record.6 However, it is a question we need not
resolve because, even assuming that Pfaff subjectively
believed that defendant had committed the crime of UUV,
we conclude, as a matter of law, that such a belief was not
objectively reasonable under the circumstances. See State
v. Bradford, 

, 

 (2018) (“Our
review of a stop is ‘based on the record made concerning the
officer’s actual belief that the defendant may have committed a crime,’ as well as ‘the specific facts, articulated by the
officer, that led him or her to believe that the defendant may
have committed a crime, which we then review as a matter of law for objective reasonableness.’ ” (Quoting Maciel-Figueroa, 

.)).
          To satisfy the standard for reasonable suspicion
supporting an investigatory stop, the officer must “point to
specific and articulable facts that give rise to a reasonable
inference that the defendant committed or was about to
commit a specific crime or type of crime.” Maciel-Figueroa,

. In other words, the state is not required to
prove “that the articulated facts give rise to a conclusion
with certainty that a crime has occurred or is about to
occur; instead, based on the specific facts known and articulated by the officer, a reviewing court must conclude that the
officer’s subjective belief could be true, as a matter of logic.”

 (emphasis in original). Notably, “[a]lthough officers reasonably may draw inferences about human behavior
from their training and experience, an officer’s hunch based
     6
        Although Pfaff testified that she believed that defendant “had been a passenger in a stolen vehicle” and a “person of innocence” would not have been leaving the scene—which might support the court’s implicit finding as to her subjective belief—Pfaff also testified that she “didn’t know what was going on” and
indicated that she did not know whether defendant was a suspect, a victim, or a
witness—which cuts against that finding. See State v. Bradford, 

, 

 (2018) (“Mere suspicion that the person is engaged in some
kind of general criminal activity at the time of the stop is insufficient because,
‘[w]hen an officer’s suspicion reduces to that level of generality, such a rule would
permit an officer to stop an individual whenever the officer believes that the person appears to be a criminal or that something about a situation seems “criminal.” ’ ” (Quoting Maciel-Figueroa, 

 (brackets in Bradford).)).
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on training and experience is, by itself, insufficient to form
a basis for reasonable suspicion.” Kreis, 

 (internal quotation marks and citations omitted).
          The state’s argument that it was objectively reasonable for Pfaff to believe that defendant had committed UUV
is layered: The state argues that it was objectively reasonable for Pfaff to believe that the Acura was stolen, based on
the make and age of the car, the driver’s elusive behavior,
and the fact that the driver did not match the gender or location of the car’s registered owners.7 It follows from there, the
state contends, that it was objectively reasonable for Pfaff
to believe that defendant knew she was riding in a stolen
vehicle—see State v. Rayburn, 

, 

 (2011), rev den, 

 (2012) (“To convict a person under ORS 164.135(1) for riding in a stolen vehicle, the
state must prove that the person knew that the vehicle was
stolen at the time he or she was a passenger.”)—based on
the facts that defendant “had been a passenger in the suspected stolen vehicle, including at the time that the driver
eluded Pfaff and almost crashed into other cars,” and she
later walked away from the scene, not making eye contact
with Pfaff, and clearly trying to avoid her, when Pfaff would
have expected her to stay and contact police.
         Even the state’s first premise is shaky. Pfaff’s observation that certain models of vehicles are easy targets for
theft is of little weight, especially given the fact that Pfaff
knew that the car had not been reported stolen. Similarly,
the fact that the car was registered to females in the Salem
area also provides little to support a suspicion that the car
was stolen. There was a female in the car, and it would not be
unexpected for a person from Salem to be in the Bridgeport
Village area, a distance of less than 40 miles. Those circumstances, at best, amount to no more than a “hunch” that
the car was stolen. That leaves only the driver’s behavior in
eluding the officer, which, to be sure, provides some support
for Pfaff’s suspicion that the Acura was a stolen vehicle. But,
    7
      The state points to the fact that the registered “names” did not match the
driver. To the extent the state is suggesting that reasonable suspicion might be
based on a mismatch between what seemed to the officer to be a Hispanic name
and the appearance of the vehicle’s driver and defendant, we reject that suggestion categorically.
722                                            State v. Brown

as Pfaff herself articulated, that behavior could also indicate that the driver had a suspended license or, indeed, a
myriad of other reasons for fleeing the police.

          However, even assuming that Pfaff had objectively
reasonable suspicion that the Acura was stolen, that suspicion is premised entirely on the driver’s conduct—yet individualized suspicion as to defendant is required to satisfy
Article I, section 9. See State v. Kingsmith, 

, 

 (2013) (“[M]ere proximity to suspected
criminal activity, or association with a suspected (or known)
criminal, is insufficient to support reasonable suspicion.”). In
other words, Pfaff’s suspicion that the car was stolen, even if
objectively reasonable, does not alone give rise to a reasonable inference that defendant knew that it was stolen—that
is, that defendant knew that she was riding in a car without
the owner’s permission. See State v. McCall, 

, 

 (2021) (“For UUV, the officers must have
had an objective basis to believe that defendant exercised
control over or otherwise used the vehicle knowing that the
vehicle was stolen.”); State v. Gibson, 

,

 (2015) (under ORS 164.135, the person using
the vehicle “must know that he or she does not have the
owner’s consent” to do so).

         And, the only other circumstance Pfaff articulated
to support her suspicion that defendant had committed
UUV was that defendant started to walk away from the
scene after the driver fled, avoiding contact with Pfaff, when
Pfaff would have expected a “person of innocence” to stay
and contact police. We have frequently observed, however,
that a person’s nervous or potentially furtive acts add little to the reasonable suspicion calculus. See, e.g., State v.
Dawson, 

, 

 (2016) (so stating and listing examples). In Dawson, we concluded that the
facts of (1) the defendant’s nervous behavior, (2) his vague
and “potentially evasive” response that he had borrowed the
vehicle from a friend, and (3) the lack of connection between
the defendant and the registered owner, were insufficient to
support reasonable suspicion of UUV to justify extension of
a traffic stop. 

. As to the evasive nature of the
defendant’s response, we explained:
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   “As we have held, a ‘defendant’s evasive reaction to questioning that he [was] constitutionally entitled to refuse to
   answer,’ even in combination with past criminal activity,
   does not provide reasonable suspicion of current criminal
   activity. See State v. Frias, 

, 

 (2009) (concluding that the defendant’s evasive response
   about why he had been visiting a friend, combined with officer’s knowledge that the defendant had history of drug use,
   did not create reasonable suspicion of current drug use).”
Dawson, 

 (brackets in Dawson). Here,
there are even fewer specific, articulable facts to support
reasonable suspicion than there were in Dawson.
         The state contends that our decision in Rayburn
leads to the conclusion that Pfaff’s belief that defendant
committed UUV was objectively reasonable. However, in
that case, the totality of the circumstances included reliable information that the car in which the defendant was
a passenger was stolen—the car’s license plate number
matched the number of a stolen car—a fact that is conspicuously absent in this case. 

. Moreover,
the officers knew that the vehicle was being driven recklessly shortly before the encounter and its occupants were
throwing objects out of it, the defendant was riding in the
car when they encountered him, and the driver was unable
to remove the key from the ignition. 

. Together,
those circumstances led us to conclude that probable cause
existed that the “defendant and his friends had been joyriding in a car that they all knew was stolen.” 

.
         Although reasonable suspicion presents a lower bar
than the probable cause standard at issue in Rayburn, it
nonetheless requires more than speculation, which is all that
ties defendant to the crime of UUV in this case. See Kreis,

 (reasonable suspicion “requires less than probable cause but more than mere speculation”). We are unprepared to say that merely being a passenger in a car that an
officer suspects to be stolen and walking away from the car
without volunteering to talk with the police is sufficient to
establish reasonable suspicion of UUV. It follows that the
trial court erred in denying defendant’s motion to suppress.
        Reversed and remanded.