State v. Elbinger

                                      498

  Argued and submitted August 23, reversed and remanded October 26, 2022


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
               LUKE JOSIAH EMERY ELBINGER,
                     Defendant-Appellant.
                  Linn County Circuit Court
                     20CR03569; A175045
                                   

     Defendant appeals a conviction of unlawful possession of methamphetamine
following a conditional no contest plea. Defendant assigns error to the denial
of his motion to suppress, arguing that he was unconstitutionally stopped prior
to the time a police officer had reasonable suspicion of defendant’s involvement
with an associated shoplifting arrest. Held: The trial court erred in denying the
motion because defendant was unlawfully stopped under Article I, section 9,
of the Oregon Constitution. When the officer approached defendant, the officer
already had the shoplifter in custody in the back of his patrol vehicle, and the
officer was investigating defendant’s connection to the shoplifter. By the time the
officer radioed a description of defendant to another officer, it would have been
reasonable for defendant to believe that he was no longer free to leave, and the
encounter had evolved into a stop. When the officer did so, he had not yet formed
a reasonable suspicion that defendant was involved in the shoplifting. As a result,
the stop was unlawful, and the trial court erred in denying defendant’s motion
to suppress.
    Reversed and remanded.



   Brendan J. Kane, Judge.
   Mark J. Kimbrell, 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.
   Erica L. Herb, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
   PAGÁN, J.
   Reversed and remanded.
Cite as 

 (2022)                                            499

           PAGÁN, J.
         Defendant entered a conditional plea of no contest
to the charge of unlawful possession of methamphetamine,
ORS 475.894 (2019).1 On appeal, defendant assigns error to
the trial court’s denial of his motion to suppress, arguing
that the methamphetamine was discovered after an unlawful stop. For the reasons discussed below, we agree that
defendant was unlawfully stopped under Article I, section 9,
of the Oregon Constitution. Therefore, the trial court erred
in denying his motion to suppress. We reverse and remand.
         We review the denial of defendant’s motion to suppress for legal error, and we are bound by the trial court’s
findings of historical fact if the evidence in the record supports them. State v. Prouty, 

, 

 (2021). We state the facts, which are undisputed, in
accordance with that standard of review.
          In December 2019, Albany Police Officer Ard
arrested a shoplifter about two blocks from a Fred Meyer
store. The arrestee said his name was “Luke” or “Lukese
Tucker.” Later, when the arrestee was being transported to
jail, Ard learned from another police officer that the shoplifter’s real name was Morgeson. Ard found a list of items in
Morgeson’s pocket. Morgeson admitted that he was stealing
items for his girlfriend.
         While Ard was driving Morgeson back to the Fred
Meyer store, Morgeson pointed to a green Subaru in the
Fred Meyer parking lot. Morgeson asked Ard to tell its occupants that he had been taken into custody. Ard observed one
male and one female sitting in the car, which was backed
into a parking space close to an exit from the parking lot.
        Ard pulled forward into the parking space next to
the Subaru, but he did not block it. Ard greeted the driver—
defendant—and he told defendant that the conversation was
being recorded. Ard asked, “Does one of you guys belong to
Lucas, Lukese?” Defendant, who was sitting in the Subaru,
appeared confused. Defendant said that he was Luke, and,
while stepping out of the Subaru, asked, “Why? What’s up?”
    1
      ORS 475.894 was amended in 2021 in ways that do not bear on our analysis.
See Or Laws 2021, ch 591, § 39.
500                                         State v. Elbinger

Ard responded, “Who’s that guy then that I got in my car?
He says his name’s Luke.”
         Defendant could not see who was in the back of
the patrol vehicle, so he asked, “What’s he look like?” Ard
responded, “He’s white.” Defendant showed Ard his identification. Ard laughed and said, “So you’re also Luke. He said
to stop by here and let you know he’s in custody.” Defendant
responded, “Oh, ok.”
         Ard continued, “Were you here shopping with somebody? We’re being recorded just so you know.” Defendant
responded that he was “just the driver.” Ard stated, “Well,
he was stealing a whole bunch of stuff. That’s why he’s in the
back of our car.” Ard repeated that the shoplifter asked him
to “stop at that green Subaru,” and Ard joked that “you’re
both Luke, theoretically.” Ard asked if the passenger was
the shoplifter’s girlfriend and, when defendant nodded, Ard
indicated that he needed “to talk to her real quick.”
         Ard walked to the passenger side of the Subaru and
asked the passenger if he could talk to her. Her car door was
slightly open. Ard asked her to step out, but she remained
in the car. Ard communicated via his radio that he was “out
with the other half of this to the southeast of the gas pumps.”
         The passenger opened the car door more widely
and asked, “What’s up?” Ard said, “Do you belong to other
Luke?” The passenger said no. Ard asked for identification,
but she said that she did not have any. After taking out his
notepad and a pen, Ard asked the passenger for her name
and date of birth. Ard wrote down the information and conveyed it to dispatch. By that time, defendant was back inside
the Subaru on the driver’s side.
        Ard asked, “What’s it like having a birthday next
door to Christmas?” The passenger responded, “It sucks.”
Ard explained that “the guy I have in custody in the back of
my car for stealing says that you’re his girlfriend and that
he was stealing for you and he has a list of things.” The
passenger asked, “Why would he say that?” Ard responded,
“[Because] he doesn’t have money to buy you stuff for
Christmas?” After a pause, the passenger asked why Ard
Cite as 

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was running her name. Before Ard could answer, the passenger began to say something but stopped herself.
        Next, Ard asked, “So, what brought you guys here
today?” After a pause, the passenger replied that they
wanted to go shopping. Ard communicated with another
person via his earpiece and stated, “Affirm. I’m out with it.”2
Ard asked both defendant and the passenger whether their
contact information was current. They both said yes. Ard
asked the passenger for a good contact phone number, which
she could not provide. Defendant provided a number and he
indicated that it was the passenger’s number.
          After a pause, Ard stated, “Copy.” Ard asked, “So
where was Luke, other Luke, supposed to meet you guys?”
The passenger responded, “Uh, the car?” Then Ard stated,
“Affirm. Occupied twice. One black male. One white female.”
After another pause, Ard stated, “Yep.” At the motion to suppress hearing, Ard explained that he provided the description of the occupants of the Subaru in response to a question
from Officer Beckwith, who he was communicating with via
radio. Then Beckwith “asked if there was a tall black male
with dreadlocks present inside the car. I told him there was.”
        After another pause, Ard asked, “Were either of
you guys in the store today?” The passenger said no, but
defendant said, “I went in very briefly and went to the bathroom and came back out.” The passenger said that she went
to the yogurt shop. Around the same time, Beckwith told
Ard that a person matching defendant’s description met up
with the shoplifter inside the store and was also a suspect.
After learning that information, Ard stated, “Copy,” and
he advised defendant and the passenger of their Miranda
rights. Subsequently, the passenger admitted that there
were items in the Subaru that had been stolen from the
Fred Meyer store. During a search of defendant, police discovered methamphetamine.
    2
      The information conveyed to Ard via his earpiece is not audible in his
body camera footage, and defendant could not hear it. At the motion to suppress
hearing, Ard stated that he was responding to a question from Officer Beckwith
asking whether Ard was out with the car. While defendant could not hear what
Beckwith was saying, at oral argument, the state acknowledged that it is reasonable to infer that defendant could hear Ard’s responses to Beckwith.
502                                         State v. Elbinger

         In moving to suppress that evidence, defendant
argued that he was seized when Ard told defendant that
“the person in the back of his patrol vehicle had admitted
to shoplifting and identified … defendant as someone
he knew.” At the hearing, the trial court heard testimony
from Ard and defendant, viewed some of Ard’s body camera
footage, and heard argument from counsel, before denying
the motion. The trial court pointed out that Ard talked to
both defendant and the passenger for only 10 minutes, and
that Ard spent most of that time with the passenger. The
trial court noted Ard’s “jovial, self-deprecating” demeanor.
The trial court stated that it would send a letter to counsel via email that contained a detailed explanation of its
findings. In that letter, the court focused on “the brevity of
Officer Ard’s encounter with Defendant, Officer Ard’s jovial
manner, [and] his relative lack of interest in talking with
… Defendant.” The trial court issued an order denying
the motion. In entering a conditional plea of no contest to
the charge of possession of methamphetamine, defendant
reserved his right to seek review of the order denying his
motion to suppress.
         On appeal, focusing on the totality of the circumstances, defendant reiterates that he was unlawfully stopped
before Ard formed a reasonable suspicion of his involvement
in the shoplifting: “The totality of Ard’s conduct—his questions and statements connecting defendant and his passenger to the shoplifter, his positioning outside defendant’s
passenger door, and his reporting defendant’s description to
another officer—would have communicated to a reasonable
person in defendant’s position that he was not free to terminate the encounter.” The state contends that defendant
was not seized before the officer provided him with Miranda
warnings.
        Article I, section 9, protects against unreasonable
searches and seizures. Although law enforcement officers
are not required to justify every encounter with citizens,
they must justify a seizure. State v. Backstrand, 

, 

 (2013). A seizure can be either a stop,
which generally requires reasonable suspicion, or an arrest,
which requires probable cause. 

 A seizure occurs when
Cite as 

 (2022)                              503

there is “ ‘the imposition, either by physical force or through
some “show of authority,” of some restraint on the individual’s liberty.’ ” 

 (quoting State v. Ashbaugh, 

, 

 (2010)). “For the purposes of Article I, section 9, a seizure occurs when (1) a police officer intentionally and significantly interferes with an individual’s liberty
or freedom of movement; or (2) a reasonable person, under
the totality of the circumstances, would believe that his or
her liberty or freedom of movement has been significantly
restricted.” State v. Arreola-Botello, 

, 

 (2019).
         The line separating encounters from seizures is neither bright nor clear and, because of that, our inquiry is
“fact-specific and requires an examination of the totality of
the circumstances involved.” Backstrand, 

. The
show of authority must be “something more than just asking
a question, requesting information, or seeking an individual’s cooperation.” 

. Indeed, “ ‘law enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or
impart information, or question them without being called
upon to articulate a certain level of suspicion in justification
if a particular encounter proves fruitful.’ ” 

 (quoting State v. Holmes, 

, 

 (1991)). A
seizure occurs, however, when an officer conveys to the person “either by word, action, or both, that the person is not
free to terminate the encounter or otherwise go about his or
her ordinary affairs.” Backstrand, 

. If an officer does not have reasonable suspicion when a stop occurs,
then the stop is unlawful, and all evidence discovered as a
result of the unlawful police action is presumed tainted by
the violation and must be suppressed. State v. Newton, 

, 

 (2017).
         With those legal principles in mind, we turn to
the facts. We recognize that police officers may “approach
and question persons sitting in parked vehicles without
triggering constitutional protections against unreasonable seizures.” State v. Reyes-Herrera, 

, 

 (2021) (internal quotation marks omitted). But “no
one fact is determinative, and context is critical.” 

.
504                                        State v. Elbinger

“The question for the court is whether the circumstances
as a whole transformed the encounter into a seizure, even
if the circumstances, individually would not create a seizure.” Newton, 

 (internal quotation marks
omitted).
         Here, we conclude that defendant was unlawfully
stopped at the point that Ard radioed a description of defendant to Beckwith. When Ard approached the Subaru, Ard
already had a shoplifter in custody sitting in the back of
his patrol vehicle, and he informed defendant of that fact.
Ard asked defendant and the passenger whether they
“belong[ed]” to the person in the back of the patrol car who
“said to stop by here and let you know he’s in custody.” Ard
asked defendant if he was “shopping with somebody.” And,
while we have already acknowledged that police officers can
question persons sitting in parked vehicles without triggering constitutional protections, the circumstance of being
approached by a police officer who already had someone
in custody, and who was probing defendant’s connection to
that person, created “a more coercive atmosphere.” Reyes-Herrera, 

.
         By itself, Ard’s initial exchange with defendant
was insufficient to constitute a stop, and Ard soon moved
to the passenger side of the Subaru. However, when investigating the passenger’s connection to the shoplifter, Ard
continued to address some of his questions to both of them.
As explained more fully below, by the time Ard radioed a
description of the Subaru’s occupants to Beckwith, it would
have been reasonable for defendant to believe that he was
no longer free to leave, and the encounter had evolved into
a stop. See Newton, 

 (courts must consider the circumstances as a whole in evaluating whether an
encounter transformed into a seizure).
         In arguing otherwise, the state points out that
Ard, without any backup or show of force with other officers, approached defendant in the late afternoon in a shopping center parking lot and did not order defendant to do
anything or direct his movements. For example, Ard did
not order defendant to step out of his vehicle or to provide
identification; instead, defendant did so voluntarily. But,
Cite as 

 (2022)                                505

in Reyes-Herrera, 

, the Supreme Court determined that a stop occurred even though “only one officer
was present in the public place” and before the officer began
directing the defendant’s movements. A key factor in Reyes-Herrera was the nature of the police officer’s questions,
which indicated that the defendant was the subject of a
criminal investigation and therefore not free to leave. 

.
         The instant case is similar to Reyes-Herrera. Ard’s
conduct, questions, and statements became less conversational and more investigatory once he walked to the passenger side of the Subaru. For example, Ard took out a notepad
and pen, wrote down the passenger’s name and date of birth
and conveyed the information to dispatch. Ard asked the
passenger for a good contact number, which defendant provided on her behalf. During those exchanges, Ard was communicating with dispatch or Beckwith. For example, before
Ard asked whether their contact information was current,
Ard stated, “Affirm. I’m out with it.” After defendant provided a phone number for the passenger, Ard stated, “Copy.”
When Ard provided a description of defendant to Beckwith,
it became clear that defendant was part of the investigation, and it would not have been reasonable for defendant to
believe he was free to leave. 

 (“[T]he critical question
… depends on the totality of the circumstances and the
extent to which those circumstances would lead reasonable
people to believe that their liberty or freedom of movement
has been significantly restricted.”).
          The state claims that Ard was investigating the
passenger, not defendant. But many of Ard’s questions were
directed to both of them. For example, he asked, “What
brought you guys here today?” Ard asked them both if the
information on their licenses was current. And, most importantly, Ard radioed a description of both to Beckwith. See
State v. Stevens, 

, 

 (2018)
(officer’s stop of driver did not seize a passenger, but the officer’s questions and actions “became increasingly coercive,”
and the passenger was seized when the officer told her that
she could get in trouble with her parole officer if she failed
to provide another passenger’s real name).
506                                          State v. Elbinger

         We acknowledge that the line between noncoercive
conversation and “something more” restrictive is not easy to
draw and that “a slight difference in circumstances could
make what was considered a nonrestrictive encounter in one
case a stop in another.” Reyes-Herrera, 

. In the
instant case, Ard’s demeanor was professional, and sometimes jovial, including when he joked with defendant about
the shoplifter’s name. But “the overall context of an encounter may convey to a citizen that [he] is not free to leave, even
if the content or manner of the officer’s questions alone does
not.” State v. Almahmood, 

, 

(2021) (internal quotation marks omitted).
         Finally, by his own admission, when Ard provided
a description of defendant to Beckwith, Ard had not yet
formed a reasonable suspicion that defendant was involved
in the shoplifting. Ard did not do so until a few moments
later, after he asked whether “either of you guys” had been
in the store, and while defendant and the passenger were
responding to his question. Ard testified that he formed a
reasonable suspicion of defendant’s involvement in the crime
when Beckwith told him that someone matching defendant’s description had been with the shoplifter inside the
store. Because the stop occurred before Ard had reasonable
suspicion, it was unlawful. Reyes-Herrera, 

.
          The state does not argue that the challenged evidence was attenuated from the unlawful stop or was admissible for any other reason. See Newton, 

(“Our conclusion that defendant was stopped for purposes
of Article I, section 9, without reasonable suspicion, fully
resolves the appeal, because the state has not made any
argument that the challenged evidence was, nevertheless,
admissible.”). For all of those reasons, we conclude that the
trial court erred in denying the motion to suppress. Because
defendant entered a conditional plea, we reverse and remand
without engaging in a harmless error analysis. See State v.
Lowell, 

, 

 (2015) (no harmless
error analysis on appeal from conditional plea).
        Reversed and remanded.