State v. Canfield
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FILED: October 08, 2014 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. CODY GEAN CANFIELD, Defendant-Appellant. Washington County Circuit Court C090743CR A143570 On remand from the Oregon Supreme Court, State v. Canfield, 354 Or 837, 325 P3d 738 (2014). Marco Hernandez, Judge. Submitted on remand April 17, 2014. Peter Gartlan, Chief Defender, and David O. Ferry, Senior Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant. John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the answering brief for respondent. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the supplemental brief. Before Wollheim, Presiding Judge, and Nakamoto, Judge, and Schuman, Senior Judge. WOLLHEIM, P. J. Affirmed. DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS Prevailing party: [ ] [ ] [ ] Respondent No costs allowed. Costs allowed, payable by Costs allowed, to abide the outcome on remand, payable by J:\266ORAPP\WEB FILES\Slip Ops for Web\AS23\Week Two\A143570OPIN141008.docx - 10/6/2014 1 WOLLHEIM, P. J. 2 This case is before us for the third time. In State v. Canfield, 251 Or App 3 442, 283 P3d 438 (2012) (Canfield I), we concluded that the trial court had correctly 4 denied defendant's motion to suppress evidence. On reconsideration, we agreed with 5 defendant that we had based a portion of our analysis on a misunderstanding of the facts, 6 and under the correct understanding of the facts, defendant had consented to a search in 7 the course of an unlawful stop. We therefore reversed the trial court's denial of 8 defendant's motion to suppress. State v. Canfield, 253 Or App 574, 291 P3d 775 (2012) 9 (Canfield II). 1 The state petitioned the Oregon Supreme Court for review, challenging 10 our conclusion that there had been an unlawful stop. That court allowed review, vacated 11 our decision, and remanded the case to us for reconsideration in light of State v. 12 Backstrand, 354 Or 392, 313 P3d 1084 (2013), State v. Highley, 354 Or 459, 313 P3d 13 1068 (2013), and State v. Anderson, 354 Or 440, 313 P3d 1113 (2013). State v. Canfield, 14 354 Or 837, 325 P3d 738 (2014) (Canfield III). For the reasons set forth below, we now 15 affirm the trial court's denial of defendant's motion to suppress. 16 We take the facts as set forth in Canfield I: 17 18 19 20 21 "An officer in a patrol car in Beaverton saw defendant walking down the street. After the officer drove by, defendant crossed the street and walked quickly toward a mall. The officer made a U-turn and followed defendant. Defendant walked into a parking lot and got into a parked car on the passenger side. The car traveled a short distance in the parking lot and then 1 The facts recited below from Canfield I are consistent with our analysis in Canfield II. 1 J:\266ORAPP\WEB FILES\Slip Ops for Web\AS23\Week Two\A143570OPIN141008.docx - 10/6/2014 1 2 parked in the parking lot again. The driver of the car and defendant got out of the car and began walking toward a fast-food restaurant. 3 4 5 6 7 8 9 10 11 12 13 "The officer approached defendant and the driver and asked to speak with them. The officer told defendant that he saw defendant run across the street and that the officer thought it was strange that the car defendant was in had moved a short distance in the parking lot and then parked again. The officer asked defendant and the driver for identification, which they provided for him. The officer kept the identification long enough to write the numbers on his hand--approximately 30 seconds--and then returned the identification to defendant and the driver. The officer noticed that defendant had a folding knife in the pocket of his pants. The officer asked defendant if he had any weapons or drugs. Defendant told the officer that he had a pipe, which the officer suspected was a marijuana pipe. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 "The officer asked defendant and the driver if he could search them, and they both consented. The officer put defendant in a patdown or search position with his fingers interlaced behind his back. The officer told defendant that he was not under arrest, that the search position was how the officer conducted searches, and that defendant was free to leave. The officer testified that defendant indicated that he understood when the officer told defendant that he was free to go. During the search, the officer found defendant's pipe and noticed the pipe contained a burnt residue that smelled like marijuana. The officer moved on to the car's driver and repeated the same process. In addition, the officer asked the driver if there was any marijuana in the car and asked for consent to search the car. The driver told the officer that there was marijuana worth $20 in the car and consented to the search. The officer found the marijuana in the car. The driver told the officer that he had met with defendant to buy the marijuana from him. Defendant also made incriminating statements to the officer. The officer arrested defendant, who was charged with unlawful delivery of marijuana." 30 31 251 Or App at 443-44. The question before us on remand is whether defendant was unlawfully 32 stopped. The parties acknowledge that, in these circumstances, the officer who 33 approached defendant had neither reasonable suspicion nor probable cause to justify a 34 stop. Thus, the sole question is whether defendant was, in fact, "stopped" for purposes of 35 Article I, section 9, of the Oregon Constitution at the time he consented to the search of 2 J:\266ORAPP\WEB FILES\Slip Ops for Web\AS23\Week Two\A143570OPIN141008.docx - 10/6/2014 1 his person. 2 As the court indicated in State v. Holmes, 311 Or 400, 410, 813 P2d 28 2 (1991), police are "free to approach persons on the street or in public places, seek their 3 cooperation or assistance, request or impart information, or question them without being 4 called upon to articulate a certain level of suspicion in justification if a particular 5 encounter proves fruitful." See also State v. Unger, 356 Or 59, 71, ___ P3d ___ (2014) 6 (Police may engage in conversation with a person and request the person's consent to 7 search without stopping the person under Article I, section 9.). 8 9 The state asserts that, particularly in light of the application of that principle to the circumstances in Backstrand, Highley, and Anderson, the trial court correctly 10 denied defendant's motion to suppress because defendant had not been "stopped." 11 Defendant contends that our previous opinion was correct, because, under the 12 circumstances described above, "a reasonable person [would] believe that a law 13 enforcement officer intentionally and significantly restricted, interfered with, or 14 otherwise deprived the individual of his or her liberty or freedom of movement." 15 Backstrand, 354 Or at 399 (citing State v. Ashbaugh, 349 Or 297, 309, 244 P3d 360 16 (2010)). In particular, defendant asserts that the following circumstances, considered 17 together, demonstrate that he was stopped at the time he consented to a search: The 18 officer told defendant that he had seen defendant run across the street; the officer told 19 defendant that he thought it was strange that defendant got into a car that had moved only 2 Defendant does not argue that an unlawful stop occurred after he consented to the search. 3 J:\266ORAPP\WEB FILES\Slip Ops for Web\AS23\Week Two\A143570OPIN141008.docx - 10/6/2014 1 a short distance and then parked again; the officer asked for identification from both 2 defendant and the driver of the car, took the identification, wrote down identification 3 information then returned the identification; the officer asked about weapons and drugs 4 and requested consent to search. As explained below, we agree with the state that, on 5 these facts, defendant was not stopped. 6 A review of the principles enunciated in Backstrand, Highley, and 7 Anderson demonstrates why this was not a "stop" for constitutional purposes, but as the 8 court in Backstrand acknowledged, "the line between a 'mere encounter' and something 9 that rises to the level of a 'seizure' does not lend itself to easy demarcation." 354 Or at 10 11 399 (quoting State v. Fair, 353 Or 588, 595, 302 P3d 417 (2013)). The court in Backstrand summarized its earlier case law in which it had 12 concluded that no stop had occurred, including: Holmes, 311 Or at 409 (an officer is free 13 to approach persons on the street or in public places and question them); State v. Gerrish, 14 311 Or 506, 815 P2d 1244 (1991) (flagging down a driver and directing him to stop in 15 order to request information was not a stop); State v. Ehly, 317 Or 66, 854 P2d 421 16 (1993) (police asking a defendant to find a key and to dump the contents of a bag were 17 not a seizure); Ashbaugh, 349 Or at 317 (officers reapproaching a person who had 18 previously been unlawfully stopped but allowed to leave, telling the person that her 19 husband wanted her to take his belongings, and asking for consent to search her purse 20 was not a seizure). Backstrand, 354 Or at 400-06. The court then contrasted those cases 21 with two in which it had concluded that the defendants were stopped: State v. 4 J:\266ORAPP\WEB FILES\Slip Ops for Web\AS23\Week Two\A143570OPIN141008.docx - 10/6/2014 1 Rodgers/Kirkeby, 347 Or 610, 622-23, 227 P3d 695 (2010) (concerning lawful traffic 2 stops where officers, rather than proceeding to issue traffic citations, instead initiated 3 unrelated inquiries, noting that, "in contrast to a person on the street," a person "detained 4 for a traffic offense has a legal obligation to stop at the officer's direction and remain; the 5 person may not unilaterally end the encounter"); State v. Jacobus, 318 Or 234, 864 P2d 6 861 (1993) (repeatedly ordering a passenger out of a car in circumstances indicating that 7 the passenger was neither free to remain in the car nor walk away was a stop). 8 Backstrand, 354 Or at 406-07. 9 With those cases in mind, the court turned to the issue presented in 10 Backstrand, "whether an officer effectively seizes an individual simply by asking for an 11 individual's identification." Id. at 409. The court indicated that "the request alone and 12 nothing more" did not constitute a stop for purposes of Article I, section 9. Id. The court 13 went on to note that, in some circumstances, requests for identification, when 14 accompanied by other police conduct, could constitute a stop. For example, in State v. 15 Warner, 284 Or 147, 150, 585 P2d 681 (1978), a defendant was stopped when an officer 16 required him to place his identification on a table and told him that he could be on his 17 way after the officer "clear[ed] this matter up." In State v. Painter, 296 Or 422, 425, 676 18 P2d 309 (1984), the court concluded that a defendant was stopped when an officer took 19 and retained his identification and credit cards. In State v. Hall, 339 Or 7, 19, 115 P3d 20 908 (2005), the court concluded that a defendant had been stopped when an officer took 21 the defendant's identification and returned it, but the defendant was aware that he was the 5 J:\266ORAPP\WEB FILES\Slip Ops for Web\AS23\Week Two\A143570OPIN141008.docx - 10/6/2014 1 subject of a pending warrant check. In that circumstance, the court concluded, it was 2 objectively reasonable for the defendant to believe that he was not free to leave until the 3 officer had received the results of the warrant check. Id. 4 The court contrasted those cases to the circumstances presented in 5 Backstrand, where an officer had approached the defendant in a store that sold adult 6 materials and checked his identification to ensure that he was old enough to be in the 7 establishment. In doing so, the officer learned that the defendant's driver's license was 8 suspended. The defendant left the store, and the officer later observed him driving and 9 stopped him. Backstrand, 354 Or at 394-95. The court concluded that, under those 10 circumstances, there was no stop in the store: "Within a matter of seconds, the 11 verification was sufficiently complete for [the officer] to return the licenses, wish 12 defendant and his girlfriend a nice day, and leave them to go about their shopping." Id. at 13 417. 14 In Anderson, the court considered a different set of circumstances that also 15 involved asking for identification. There, officers were carrying out a search of an 16 apartment when the defendant and one of his friends drove up, parked, approached the 17 apartment, then quickly returned to their car after seeing the police there. 354 Or at 442- 18 43. Three officers approached the car wearing police "raid vests," explained that they 19 were executing a search warrant, asked why defendant and the driver had come to the 20 apartment, and asked for their identification. Both denied having identification, and the 21 defendant gave the officers a name that an officer knew to be false. Id. The question was 6 J:\266ORAPP\WEB FILES\Slip Ops for Web\AS23\Week Two\A143570OPIN141008.docx - 10/6/2014 1 whether the defendant had been unlawfully stopped before he provided the false name. 2 Citing Backstrand for the proposition that simply requesting identification did not 3 constitute a stop, the court went on to conclude that the additional circumstances did not 4 transform the encounter into a stop, either. The court stated: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 "[T]he question is whether the content of the officers' requests, the manner in which they were made, or the overall context of the contact elevated the encounter to the level of a seizure by conveying to defendant and the driver that the officers would not allow them to leave. The record does not suggest, however, that the officers' tone or manner were overbearing or controlling, such that what otherwise were mere verbal exchanges were, in fact, something more. Nor was the content of the brief exchange coercive. [The officer's] explanation of the officers' reasons for the contact and the officers' requests for identification informed defendant and the driver that the officers were interested in why they had come to the apartment and what they knew about [the suspect's] activities. That information objectively conveyed possible suspicion that the driver and defendant could be involved in criminal activity related to the apartment, but they equally conveyed that the officers were interested in whatever information the two might be able to provide. In all events, by those brief verbal exchanges and inquiries alone, the officers did not communicate an exercise of authority of the kind required for a seizure." Id. at 453 (emphasis added). The court reached a similar conclusion in Highley. In that case, an officer 24 approached a parked car, knowing that the driver had a suspended license, and spoke with 25 the driver while the defendant and another passenger walked away. Highley, 354 Or at 26 461-62. While the officer continued to investigate the driver, the defendant and his 27 companion returned to the area of the car. At that point, the officer asked to see their 28 identifications (apparently because the officer had recognized the defendant and believed 29 he might be on probation, although the defendant denied that he was). The officer wrote 7 J:\266ORAPP\WEB FILES\Slip Ops for Web\AS23\Week Two\A143570OPIN141008.docx - 10/6/2014 1 down their information, returned the identifications within a minute, and then contacted 2 dispatch, which informed him that the defendant was no longer on probation. The officer 3 then returned to the defendant and told him that the defendant had been correct about his 4 probationary status, then sought consent to search, which eventually led to the discovery 5 of evidence. Id. at 464. In concluding that the defendant had not been stopped, the court 6 noted that the defendant had moved around freely throughout the encounter, that his 7 identification had been retained only briefly, and that the defendant had been told that the 8 officer had confirmed that he was not on probation. In those circumstances, the court 9 concluded, the defendant was not stopped. Id. at 470-71. The court contrasted those 10 facts to Hall, in particular noting that the defendant in Highley was essentially "a 11 bystander who was free to come, go, and move about at will, all of which he did," and 12 further noted that, unlike in Hall, no warrant check was pending by the time the evidence 13 was discovered. Id. at 473. 14 With the circumstances of those cases in mind, we return to the facts here 15 that defendant contends demonstrate that he was unlawfully stopped. An officer saw 16 defendant cross the street, then saw defendant enter the passenger side of a car, then saw 17 the car move to a different parking space in the parking lot. As defendant and the car's 18 driver walked toward a nearby restaurant, the officer approached and told defendant that 19 he had seen defendant cross the street, said that he thought it was strange that they had 20 moved the car, and asked them for identification. The officer retained their identification 21 for only about 30 seconds. The officer asked defendant about drugs or weapons, and, 8 J:\266ORAPP\WEB FILES\Slip Ops for Web\AS23\Week Two\A143570OPIN141008.docx - 10/6/2014 1 after defendant acknowledged that he had a pipe, the officer asked for consent to search. 2 Defendant contends that, in those circumstances, the officer's statements 3 would convey to a reasonable person that he was not free to leave, as the officer was 4 investigating a possible drug offense, or possibly an "unlawful street crossing." The 5 record does not indicate, however, that the officer was investigating any potential traffic- 6 related offense. Rather, the record indicates--as did the officer's words to defendant--that 7 the officer approached defendant and his companion because he thought their behavior 8 was "strange." Additionally, we note, by the time the officer asked for consent to search, 9 defendant had admitted he had a pipe on him. The officer, however, believed that 10 defendant had a marijuana pipe, and did not suggest in any way to defendant that 11 possession of such an item was a crime or that the officer was investigating. 3 12 These circumstances are, frankly, somewhat less compelling than those at 13 issue in Anderson and Highley, which are factually the most comparable of the three 14 cases that provided the basis for this remand. In Anderson, three officers who were quite 15 clearly conducting a criminal investigation approached the defendant, indicating that their 16 investigation of the criminal activity was potentially related to their investigation of the 17 defendant; here, by contrast, one officer approached defendant to ask him about 18 something "strange"--but noncriminal--that he had observed. In Highley, the officer who 19 initially spoke with the defendant was investigating a driver for a traffic crime, but also 3 As noted, after defendant had acknowledged that he had a pipe, the officer had told defendant that he was free to leave. Canfield II, 253 Or App at 576. 9 J:\266ORAPP\WEB FILES\Slip Ops for Web\AS23\Week Two\A143570OPIN141008.docx - 10/6/2014 1 made it clear to the defendant that he wanted to run an identification check to verify the 2 defendant's statement that the defendant was not on probation. 354 Or at 462. The 3 officer subsequently asked the defendant for consent to a search. In Highley, as in 4 Anderson, there were multiple officers at the scene. Id. at 463. 5 In the present case, unlike in Anderson, there was no indication at the time 6 the officer spoke to defendant that the officer was investigating any crime. And unlike in 7 Highley, there was no indication that the officer was investigating a potential probation 8 violation. Additionally, there was no retention of identification as in Painter, 296 Or at 9 425, there were no statements by the officer that defendant would only be free to leave 10 after the officer had cleared things up, as in Warner, 284 Or at 150, and there was no 11 pending warrant check underway, as in Hall, 339 Or at 19. Finally, there is nothing in 12 the record here that would indicate that the officer's demeanor or manner or tone in 13 questioning defendant was coercive. See Backstrand, 354 Or at 404-05. In short, there is 14 nothing in the record that would indicate that the officer "intentionally and significantly 15 restricted, interfered with, or otherwise deprived the individual of his or her liberty or 16 freedom of movement." Id. at 399. 17 Affirmed. 10
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