174
Submitted June 15, 2021, affirmed June 8, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
CARLTON MARTIN MORRIS,
Defendant-Appellant.
Washington County Circuit Court
19CR10104, 19CR24856;
A171696 (Control), A171697
513 P3d 17
In a consolidated criminal appeal, defendant appeals the trial court’s supplemental restitution judgment after his conviction for assault (ORS 163.160) in
one case and the judgment of conviction for providing false information to a peace
officer (ORS 162.385) and interfering with a peace officer (ORS 162.247) in the
other case. Defendant challenges the trial court’s denial of his motion to suppress, arguing that the trial court erred in concluding that the officer had reasonable suspicion to stop him. Held: The trial court did not err. The Court of Appeals
rejected defendant’s challenge to the supplemental restitution judgment without
discussion. In addressing the suppression issue, the Court of Appeals concluded
that, in addition to defendant’s presence in a high crime area—which would not
have been sufficient alone—there was enough additional evidence to support the
officer’s determination that he had reasonable suspicion to believe that defendant
had just committed the crime of theft of mislaid property and, thus, to stop him.
Affirmed.
Janelle F. Wipper, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, Assistant Attorney
General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.
MOONEY, P. J.
Affirmed.
Cite as 320 Or App 174 (2022) 175
MOONEY, P. J.
In this consolidated criminal appeal, defendant
appeals the trial court’s supplemental restitution judgment
following his conviction for assault (ORS 163.160), Case
No. 19CR10104, and the judgment of conviction for providing false information to a peace officer (ORS 162.385) and
interfering with a peace officer (ORS 162.247), Case No.
19CR24856. A discussion regarding the supplemental restitution judgment in Case No. 19CR10104 would not benefit
the bench, bar, parties, or the public; we reject defendant’s
first assignment of error and affirm the supplemental judgment in that case without discussion. We write to address
defendant’s second assignment of error, which concerns
Case No. 19CR24856 and which challenges the trial court’s
denial of his motion to suppress. We reject that assignment
for the reasons that follow, and we affirm.
We are bound by the trial court’s findings of fact
that are supported by the record. State v. Williams, 297 Or
App 384, 385,
441 P3d 242 (2019). In the absence of express
findings, we presume that the trial court made findings
consistent with the ultimate conclusion.
Id. Otherwise, we
review a trial court’s denial of a motion to suppress for legal
error. State v. Maciel-Figueroa,
361 Or 163, 165-66,
389 P3d
1121 (2017).
On February 10, 2019, Officer Maurer was patrolling
what he described as a “high crime area” near a bridge
with known problems such as “graffiti[i]ng, transients, and
littering, and people leaving behind stuff that shouldn’t
be left there.” Maurer testified that he had patrolled this
area before and while he does not always see people camping, there is “always new stuff” when he patrols there. He
saw defendant step out from behind some bushes under the
bridge at 4:15 a.m. and walk toward him. Maurer asked
defendant what he was doing as he approached, and defendant responded that he found a backpack from “down where
he was coming up from” and two books that were with it. At
this point, Maurer believed that he had reasonable suspicion
to stop defendant. He informed defendant that he had committed the crime of theft of mislaid property and ordered
defendant to sit down.
176 State v. Morris
Maurer called other officers to assist with the stop.
Defendant provided a false name to the other officers. They
ran defendant’s information through facial recognition software, learned that he had an active warrant, and placed
defendant under arrest. Defendant then attempted to run
away, did not stop when verbally commanded to do so, and
continued to run until he was tackled by an officer. At trial,
defendant filed a motion to suppress the backpack and books
based on the theory that Maurer did not have reasonable
suspicion to stop him for theft of mislaid property based on
their limited interaction to that point. The trial court denied
the motion.
On appeal, defendant argues that the motion to suppress was improperly denied because the trial court incorrectly concluded that Maurer had reasonable suspicion to
stop defendant. The state argues that Maurer did have reasonable suspicion and that, even if he did not, the evidence
is still admissible under an exception to the exclusionary
rule. We agree with the state that the officer had reasonable
suspicion to stop defendant.
Article I, section 9, of the Oregon Constitution provides 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; and no warrant shall issue but
upon probable cause, supported by oath, or affirmation,
and particularly describing the place to be searched, and
the person or thing to be seized.”
That constitutional protection applies to encounters between
law enforcement officers and citizens, when there has been
“a temporary restraint of a person’s liberty for the purpose
of criminal investigation—i.e., a ‘stop.’ ” State v. Rodgers/
Kirkeby, 347 Or 610, 621,
227 P3d 695 (2010). Such stops are
“seizures,” and they “must be justified by a reasonable suspicion of criminal activity.”
Id. An officer must reasonably
suspect, “based on specific and articulable facts,” that the
person stopped committed a crime or was about to commit
a crime. Maciel-Figueroa,
361 Or at 182. A stop is lawful if
the officer had an actual subjective belief that the person
stopped committed a specific crime or was about to commit
Cite as
320 Or App 174 (2022) 177
a specific crime, and the officer’s subjective belief was objectively reasonable based on the totality of the circumstances
at the time of the stop.
Id.
Here, the parties are in agreement that the defendant was stopped at the point that Maurer told him that he
had committed the crime of theft of mislaid property and
ordered him to sit down. The only issue is whether or not,
at that point in the encounter, Maurer’s subjective belief
that defendant had committed that particular crime was
objectively reasonable. ORS 164.065 defines theft of mislaid
property:
“A person who comes into control of property of another
that the person knows or has good reason to know to have
been lost, mislaid or delivered under a mistake as to the
nature or amount of the property or the identity of the
recipient, commits theft if, with intent to deprive the owner
thereof, the person fails to take reasonable measures to
restore the property to the owner.”
Maurer testified that his subjective belief that defendant
had just committed the crime of theft of mislaid property
was based on the area, the time of night, the state of the
property, and his conversation with defendant.
Defendant’s mere presence in a “high crime area”
is insufficient by itself to justify an officer’s reasonable suspicion. State v. Acuna, 264 Or App 158, 168,
331 P3d 1040
(2014). However, when a defendant is more than “merely
present” in a high crime area and engages in further suspicious activity, the circumstances can rise to reasonable suspicion. State v. Dampier,
244 Or App 547, 552-53,
260 P3d
730 (2011). This was an area with which Maurer was familiar. He knew that people often left personal items behind at
that location. When Maurer asked defendant what he was
doing, defendant showed him a “clean and new” backpack
and two books that were in “a similar condition,” which indicated to Maurer that the property was likely not purposely
left behind or dumped. Defendant told Maurer that he had
found the backpack and that he liked to read. Maurer surmised from this that the property did not belong to defendant, and that he had no intention of returning the property to its owner. That evidence was sufficient to support a
178 State v. Morris
determination that Maurer had reasonable suspicion that
defendant was more than merely present in a high crime
area and had just committed the crime of theft of mislaid
property.
The stop by Maurer was constitutional and the trial
court correctly denied the motion to suppress.
Affirmed.
