State v. McKibben

                                          26

Argued and submitted January 26, 2021, reversed and remanded June 2, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                ALEXANDER PERRY McKIBBEN,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      18CR51781; A170095
                                      

     Defendant appeals from a judgment of conviction for unlawful possession of
methamphetamine, assigning error to the trial court’s denial of his motion to
suppress. He argues that the police officer seized him without reasonable suspicion when the officer asked defendant for his identification, and while retaining
it, asked defendant to reveal the contents of his bag. Held: The Court of Appeals
concluded that defendant was unlawfully seized before the police officer saw the
methamphetamine evidence. Accordingly, the trial court erred in denying defendant’s motion to suppress.
    Reversed and remanded.



    Ronald D. Grensky, Judge.
   Erik Blumenthal, 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.
   Shannon T. Reel, 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 Kamins, Judge, and
Joyce, Judge.*
    JOYCE, J.
    Reversed and remanded.



______________
   * Joyce, J., vice Lagesen, C. J.
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           JOYCE, J.
         Defendant appeals from a judgment of conviction
for unlawful possession of methamphetamine, assigning
error to the trial court’s denial of his motion to suppress.1
Defendant argues that the police officer unlawfully seized
him, leading to the discovery of methamphetamine. We
agree and, accordingly, reverse and remand.
                     FACTUAL BACKGROUND
         We state the facts consistently with our standard
of review. State v. Davis, 

, 

(2017). We are bound by the trial court’s findings so long
as they are supported by the record. 

 If the trial court
has not made an express factual finding, we presume that
the trial court found the facts in a manner consistent with
its ultimate conclusion. 

 Officer Gregston was on patrol
at 3:20 a.m. around a Walmart parking lot in Tigard. He
noticed a car with an out-of-state license plate parked near
the entrance to the parking lot.2 The Walmart has posted
a sign that prohibits overnight camping, and Tigard has a
municipal ordinance that prohibits camping within the city
limits. Walmart employees had previously asked police to
enforce Walmart’s overnight camping ban.
         Gregston spotted two people sitting in the parked
car, awake. Although there was no indication that the occupants were living out of the car, Gregston was concerned that
they were disobeying the no camping order and trespassing.
He thus circled around and parked behind the car in a way
that did not block the car’s exit. As he drove up, Gregston
thought the occupants appeared startled to see him, and he
saw defendant put a small bag near the center of the car.
Gregston approached the car on foot with his flashlight and
patrol car’s spotlight on, but no siren or overhead lights.
        In a “casual” tone, Gregston identified himself and
asked the driver and defendant, who was in the passenger

    1
       Defendant also assigns error to the trial court’s imposition of courtappointed attorney fees and a felony fine. Because we reverse the trial court’s
order denying defendant’s motion to suppress, we do not reach those claims of
error.
    2
       There were between 25 and 50 other vehicles in the parking lot.
28                                                      State v. McKibben

seat, what they were doing in the parking lot. The driver
stated that the car had overheated and that they were waiting “until they could drive away when it was cooled off,
or they were waiting for a friend or something like that.”
Gregston thought the answer did not make sense because it
was 65 degrees at the time, and he did not see smoke emanating from the car’s engine block.
         Gregston then asked the driver and defendant for
identification, which they gave to him.3 While holding defendant’s identification card, Gregston told defendant, “I noticed
you had a bag in your hand.” Gregston asked defendant “if
he’d be willing to just open that up and show me what was
inside.” Defendant did so, revealing what appeared to be
methamphetamine pipes. Gregston then returned to his car
to conduct a records check on the identification cards. After
defendant’s record came back clean, Gregston returned to
the parked car. Gregston proceeded to ask defendant about
the methamphetamine pipes and the amount of methamphetamine that he had in the car. Defendant made incriminating statements, and Gregston ultimately found a jar
with a large rock of methamphetamine inside defendant’s
backpack.
         The state charged defendant with unlawful possession of methamphetamine. Before trial, defendant moved to
suppress all evidence derived from the encounter, including
evidence of methamphetamine and defendant’s statements,
arguing that Gregston lacked reasonable suspicion to justify
a stop under Article I, section 9, of the Oregon Constitution.4
Specifically, defendant argued that Gregston stopped him
    3
      Gregston initially testified that he could not recall exactly when he
obtained defendant’s identification, but after defendant attempted to refresh his
recollection, he conceded that it was “more likely than not” that he asked for the
identification before he asked about defendant’s bag. Gregston also testified that
he “felt comfortable testifying to receiving” defendant’s identification before he
asked about the bag. Although the trial court did not make specific findings on
that fact, the state agrees for purposes of this appeal that Gregston requested the
identification before asking about defendant’s bag. Gregston testified that he had
retained the identification throughout the duration of the stop.
    4
      Article I, section 9, provides: “No 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.”
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when he asked defendant for his identification, retained it,
and then asked defendant to reveal the contents of his bag.
Defendant argued that at that point, Gregston lacked reasonable suspicion that defendant was in possession of illegal
drugs and the stop was therefore unlawful.
        The trial court denied the motion to suppress, concluding that Gregston did not seize defendant until after he
discovered the methamphetamine pipes in defendant’s bag.
         On appeal, defendant renews his argument that
Gregston stopped him without reasonable suspicion when
he questioned defendant and asked him to reveal the contents of the bag. The state responds that, under the totality of the circumstances, the interaction between Gregston
and defendant did not implicate Article I, section 9, until
after Gregston saw methamphetamine pipes in defendant’s
bag, at which point Gregston had reasonable suspicion of
unlawful possession. Conversely, the state does not argue
that Gregston had reasonable suspicion to stop defendant
before the discovery of the pipes or that the evidence sought
to be suppressed was the unattenuated product of that
alleged unlawful seizure. Thus, our review turns on whether
Gregston stopped defendant before or after Gregston discovered the methamphetamine pipes. For the reasons set forth
below, we agree with defendant that Gregston seized him
before Gregston saw the methamphetamine pipes and thus
conclude that the trial court erred in denying defendant’s
motion to suppress.
                         ANALYSIS
         Article I, section 9, of the Oregon Constitution protects against unreasonable searches and seizures. Given
the infinite variety of encounters between police officers
and individuals, “ ‘[n]ot every such encounter constitutes a
“seizure” of the [individual]’ for constitutional purposes.”
State v. Fair, 

, 

 (2013) (quoting
State v. Holmes, 

, 

 (1991)). The
police-civilian encounters typically fall into one of the three
categories. State v. Ashbaugh, 

, 

 (2010). At one end are “mere conversations,” which are
noncoercive encounters that do not implicate constitutional
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concerns, while at the other end are “ ‘arrests,’ which are
restraints on an individual’s liberty” that require probable
cause. 

 In the area between those two ends are “stops.”

 Stops are seizures for constitutional purposes that can
be justified by reasonable suspicion of criminal activity. 

          Analytically, what distinguishes seizures—either
stops or arrests—from encounters that are mere conversations “is the imposition, either by physical force or through
some show of authority, of some restraint on the individual’s
liberty.” State v. Backstrand, 

, 

(2013) (internal quotation marks omitted). The test is an
objective one: a person is “seized” for purposes of Article I,
section 9, in either one of two situations: “(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable
person under the totality of the circumstances would believe
that (a) above has occurred.” Ashbaugh, 

(emphasis in original; footnote omitted). Because the latter
part of the test depends on the totality of the circumstances,
the question for us “is whether the circumstances as a whole
transformed the encounter into a seizure,” even if the circumstances individually would not create a seizure. State v.
Anderson, 

, 

 (2013).
          In answering that question, we consider “the content of the questions [asked by a police officer], the manner of asking them, or other actions that police take (along
with the circumstances in which they take them).” State v.
Charles, 

, 

 (2014) (brackets in original; internal citation and quotation marks omitted); see also State v. Highley, 

, 

(2013) (given the context, even if none of an officer’s individual actions amount to a stop, the actions “[i]n combination” may transform “what began as a mere encounter into
a stop”).
        With those legal principles in mind, we turn to
the facts of this case. We first note that Gregston’s initial
conduct—approaching the car with a flashlight and asking what defendant and the driver were doing in the parking lot—did not effectuate a seizure. Even if Gregston
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inconvenienced defendant, his initial conduct did not constitute a show of authority that would cause a reasonable
person to believe that the police officer was exercising his
authority to coercively detain the person. See State v. Moats,

, 

 (2012) (concluding that
officer did not stop defendant by approaching his parked
car and stating his concern that defendant might be trespassing, then asking questions about suspicious behavior
of another occupant during the contact); see also Ashbaugh,

 (officer may ask questions that a person ordinarily would not ask another without effecting a seizure).
         However, Gregston’s conduct transformed what began
as a mere encounter into a stop almost immediately. Of
particular significance is that Gregston requested—and
retained—defendant’s identification and then began asking defendant questions about the contents of the bag. The
confluence of those facts, in context, would have communicated to a reasonable person in defendant’s position that he
was not free to “terminate the encounter or otherwise go
about his or her ordinary affairs” before he responded to
Gregston’s questioning. Backstrand, 

.
          To be sure, the Supreme Court has emphasized that
neither a mere request for identification, nor briefly holding a person’s identification to check its validity, necessarily transforms an encounter into a stop. 

 (no stop
where a police officer takes the person’s identification card
and retains it for a reasonable time to verify it); Highley,

 (same). As the Supreme Court explained in
Highley, a person who cooperates with an officer’s request
for identification reasonably “can expect that the officer will
do something with that identification, such as seek to verify
the person’s identity or status.” 

 It is thus generally not
an exercise of coercive police authority if “the officer either
retains the identification for a reasonable time” while verifying it, or “swiftly returns the identification and uses information from it” for purposes of verification. 

          Yet here, Gregston did not proceed with verifying
the identification or asking any questions about the identification, as a person would reasonably expect; rather, he
retained the identification and questioned defendant about
32                                         State v. McKibben

the contents of the bag. State v. Thompson, 

, 

 (2014) (stop was unlawful when
police officer told the defendant that he suspected that drug
activity was occurring on the premises and asked her if she
was a drug user, while retaining her identification); State
v. Painter, 

, 

 (1984) (concluding police officer had seized the defendant when the officer questioned defendant about the location of his vehicle,
while retaining his driver license and credit cards). Cf. State
v. Dierks, 

, 

 (2014) (concluding police officer did not stop the defendant by asking
for his identification and running a records check on the
defendant’s name, but emphasizing that “the officer did not
question defendant about her possible acquaintance with
the subjects of any [criminal] investigation”). In this case, a
reasonable person in defendant’s position would understand
that Gregston’s retention of defendant’s identification while
questioning him was a show of authority that restrained his
“liberty or freedom of movement.” Ashbaugh, 

.
        We thus conclude that defendant was stopped
before Gregston saw methamphetamine pipes in the bag.
Accordingly, the trial court erred in denying defendant’s
motion to suppress.
        Reversed and remanded.