State v. Onstad

ARMSTRONG, J.,

concurring.

The majority reverses the trial court because it concludes that, based on the totality of the circumstances, the officer did not stop defendant before defendant moved the small white bindle from his pocket to his waistband. I believe that the officer stopped defendant before defendant moved the bindle, but because the stop was based on reasonable suspicion, I concur with the majority’s result.

Under ORS 131.605(5), “[a] ‘stop’ is a temporary restraint of a person’s liberty by a peace officer lawfully present in any place.” A person is stopped when, considering the totality of the circumstances, “a reasonable person would have believed that his liberty had been temporarily restrained.” State v. Ehly, 317 Or 66, 76, 854 P2d 421 (1993). That restraint can be made “through physical force or a show of authority.” State v. Spenst, 62 Or App 755, 758, 662 P2d 5, rev den 295 Or 447 (1983). The state would have us conclude that the encounter between defendant and the officer was “mere conversation,” not rising to the level of a stop, as defined in ORS 131.605(5).1 It points out that the officer did *154not order defendant to stop, block his path of travel, or physically touch or detain him, and it claims that State v. Miller, 120 Or App 349, 852 P2d 895 (1993), controls the outcome of this case. In Miller, we declined to hold that a stop occurred when an officer pulled up in his patrol car behind a vehicle already stopped on the side of the road, turned on the car’s flashing yellow lights, and called out to the defendant. 120 Or App at 352.

When the totality of the circumstances surrounding the encounter in this case is considered, however, it is evident that this case is materially different from Miller. Here, the officer was traveling in a patrol car in the opposite direction from defendant. The officer turned the car into the intersection of N.W. 20th Avenue and West Burnside Street in Portland, and, rather than parking in a parking spot, stopped the car in the intersection and turned on its emergency flashers, thereby blocking traffic. The officer then got out of the car and called out defendant’s name. Defendant knew the officer from numerous encounters on the street and knew that the officer was aware of his drug use. In nearly every past encounter between him and the officer, defendant had been searched. That the previous searches had been consensual does not negate the fact that defendant was aware that the officer was suspicious of him and his drug use. When the officer called out his name, defendant stopped.

Considering those factors together, the officer’s behavior constituted a show of authority that a reasonable person in defendant’s position would have felt he was not free to ignore. Therefore, his freedom was temporarily restrained and the encounter amounted to a stop.2

*155That conclusion, however, does not end the inquiry. A police officer may stop a person if, under the totality of the circumstances, the officer “reasonably suspects” that the person has committed a crime.3 ORS 131.615(1); ORS 131.605(4); State v. Walsh, 103 Or App 517, 519, 798 P2d 262 (1990), rev den 311 Or 60 (1991). The issue here is whether, when he stopped defendant, the officer had a reasonable suspicion that defendant was violating PCC § 14.24.030, the “open container” ordinance.4

I would hold that the officer reasonably suspected that defendant was violating that ordinance when the officer made the stop. The officer testified that when he first saw defendant, defendant turned away from him, but he could see that defendant was carrying a brown paper bag with a glass bottle protruding out of it. He stated that the bottle stuck out of the bag in a way that would allow defendant to drink it on the sidewalk. He testified that, based on his experience, open containers of alcohol are typically carried in brown paper bags, and that he had never seen a person carry a bottle of soda pop that way. Further, the area of Portland where the *156stop took place is known to have drug problems, and the officer testified that every arrest he had made on that corner was for drug-related offenses. When the officer saw defendant, he suspected that defendant was violating the “open container” ordinance. Considering all of the circumstances, that suspicion was reasonable.

In summary, at the point when the officer called out defendant’s name, based on the totality of the circumstances, a stop occurred. However, the stop was justified under ORS 131.615 because at that moment the officer had a reasonable suspicion that defendant had violated a criminal ordinance. For those reasons, I concur in the majority’s result but not in its reasoning.

In State v. Warner, 284 Or 147,161,585 P2d 681 (1978), the Oregon Supreme Court identified three types of encounters between officers and people on the street:

*154“(1) arrest, justified only by probable cause; (2) temporary restraint of the citizen’s liberty (a ‘stop’), justified by reasonable suspicion (or reliable indicia) of the citizen’s criminal activity; and (3) questioning without any restraint of liberty (mere conversation) requiring no justification.”

The state argues that the trial court erred when it placed this encounter in category two rather than category three.

Those facts also lead to the conclusion that the officer had “seized” defendant under part (b) of the Holmes test cited by the majority. 144 Or App at 152. Under that test, defendant must subjectively have believed that he was “seized” and that belief must have been objectively reasonable. State v. Holmes, 311 Or 400,409-10, 813 P2d 28 (1991). Here, when the officer stopped his vehicle in the street and called out defendant’s name, defendant moved the bindle of cocaine from inside his *155right jacket pocket to down the front of his waistband. If defendant felt he was free to walk away from an encounter with the officer, or that he and the officer were “acquaintances” who were going to have a chat, there would be no reason for him to move the cocaine to a location less likely to be discovered if he were searched. The logical conclusion to draw from defendant’s behavior is that defendant subjectively thought he was “seized” by the officer and was not free to walk away. As outlined in the body of the opinion above, that belief was objectively reasonable under the circumstances.

The trial court erroneously concluded that the officer needed probable cause to justify the stop of defendant because defendant’s suspected conduct was an infraction rather than a crime. See State v. Matthews, 320 Or 398, 884 P2d 1224 (1994) (probable cause required to stop and investigate suspected violation of an infraction). The court concluded that the Portland City Code (PCC) provision against possessing a container of alcohol with a broken seal in public, PCC § 14.24.030, was a lesser-included offense of the Oregon Vehicle Code’s provision against possessing a container of alcohol with a broken seal in a vehicle. ORS 811.170.1 disagree with that conclusion. The provisions do not apply to the same conduct; they have different elements; and they are directed at different objectives. The Portland City Code provision is a separate criminal provision, with criminal penalties. PCC § 14.24.030; PCC § 14.08.020. Therefore, the officer needed only reasonable suspicion to justify the stop. ORS 131.615(1).

Section 14.24.030 of the Portland City Code provides in relevant part:

“(b) It is unlawful for any person to have in his possession while upon any street, sidewalk, or other public right-of-way any bottle, can, or other receptacle containing any alcoholic liquor which has been opened or a seal broken or the contents of which have been partially removed.”