State v. Brown

713

Argued and submitted September 9, 2021, reversed and remanded April 6, 2022

STATE OF OREGON,

Plaintiff-Respondent,

v.

AMANDA LYN BROWN,

Defendant-Appellant.

Washington County Circuit Court

18CR54684; A170300

508 P3d 45

Defendant appeals a judgment of conviction for felony possession of metham-

phetamine, ORS 475.894(2)(b) (2017), assigning error to the trial court’s denial

of her motion to suppress evidence obtained during an investigatory stop. She

contends that the stop violated Article I, section 9, of the Oregon Constitution

because the officer lacked reasonable suspicion that she had committed the crime

of unauthorized use of a motor vehicle (UUV) and, therefore, the court erred in

denying her motion to suppress evidence discovered during the stop. Held: The

totality of the circumstances—being a passenger in a suspected stolen car that

eluded police, and then walking away from the car without voluntarily making

contact with the police—was insufficient to provide objectively reasonable suspi-

cion of the crime of UUV. Consequently, the trial court erred in denying defen-

dant’s motion to suppress.

Reversed and remanded.

Beth L. Roberts, Judge.

John Paul Evans, Deputy Public Defender, argued the

cause for appellant. On the brief were Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, and Erin J.

Snyder Severe, Deputy Public Defender, Office of Public

Defense Services.

Patricia G. Rincon, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman, Solicitor

General.

Before Mooney, Presiding Judge, and Shorr, Judge, and

DeVore, Senior Judge.*

______________

* Shorr, J., vice DeHoog, J. pro tempore.

714 State v. Brown

MOONEY, P. J.

Reversed and remanded.

Cite as 318 Or App 713 (2022) 715

MOONEY, P. J.

Defendant appeals a judgment of conviction for

felony possession of methamphetamine, ORS 475.894(2)(b)

(2017), amended by Ballot Measure 110 (2020), Or Laws

2021, ch 591, § 39,1 asserting two assignments of error. We

reject the first without discussion. As to defendant’s sec-

ond assignment—that the trial court erred in denying her

motion to suppress evidence—we agree and, accordingly,

reverse and remand.

We review the denial of a motion to suppress for legal

error, deferring to the trial court’s findings of historical fact

to the extent there is constitutionally sufficient evidence in

the record to support them. State v. Maciel-Figueroa, 361

Or 163, 165-66, 389 P3d 1121 (2017). And, we “assume that

the trial court decided historical facts necessary to its legal

conclusions in a manner consistent with those conclusions.”

State v. Reyes-Herrera, 369 Or 54, 61, 500 P3d 1 (2021). In

this case, the pertinent facts are largely undisputed.

Officer Pfaff, an 18-year veteran of the Tualatin

Police Department, was on patrol near Bridgeport Village

one afternoon when she saw an older black Acura make a

sudden lane change, crossing over a solid white line in vio-

lation of the traffic laws. Pfaff testified that older Acuras,

Hondas, and Toyotas are “easy targets” for theft and she

“pretty much make[s] it [her] practice to run every plate on

every older vehicle like that—that [she] see[s].” Pfaff ran the

license plate of the Acura and learned that it was registered

to two females in the Salem area and that the name asso-

ciated with the registration “seemed like it was a Hispanic

name,” which did not match the male driver and female pas-

senger in the Acura. She also learned that the car was not

reported as stolen.

Pfaff decided to initiate a traffic stop, but the car

turned right into Bridgeport Village and quickly parked. As

it parked, the passenger—defendant—“looked directly at”

Pfaff. Pfaff acted disinterested, circled around, and then

came back into the parking lot where she could view the

1

We cite the 2017 version of the statute throughout this opinion, which was

the version in effect when defendant allegedly committed the offense.

716 State v. Brown

car. The driver had gotten out of the car at that point and

was standing at its rear with the trunk open; he did not see

Pfaff. Defendant was still seated in the car. After a short

time, the driver got back in the car and drove back onto

Bridgeport Road. Pfaff followed and, as she passed the car,

noticed that the front license plate was obscured by a license

plate cover. Pfaff briefly lost track of the car but spotted it

again near the rear entrance to a nearby business complex.

She testified that her suspicion

“was that it was a stolen vehicle at the—for one thing. I defi-

nitely felt by the totality of the circumstances that there is

criminal activity going on, you know, and it—it may have

just been that he was a suspended driver, but something

was going on with that vehicle, and I had reason to stop it,

and was attempting to do so.”

When asked the basis for her suspicion that the car was sto-

len, she replied:

“[T]he fact that it was from Salem, this it—everything

about it was not—just seemed suspect. The registered

owners, two females from Salem. I’ve got a male driving.

The strange erratic driving behavior. The you know, quick

park, which in my experience * * * has led me to investiga-

tions where people were up to criminal activity. His clear

desire to avoid.”

Pfaff activated her overhead lights. The driver looked at her

and she pointed for him to park. He looked down at his lap,

then backed up and took off. Pfaff pursued. During the pur-

suit, the car sped down the center turn lane, almost crashed

a couple of times, went through a lighted intersection, and

eventually turned into the parking lot of a store. Pfaff lost

sight of the car for a short time, but found it again, parked

haphazardly in the middle of the lot, with the driver side

door open.

Nobody was in the car, and Pfaff saw defendant

walking away. Defendant was not making eye contact and,

according to Pfaff, she was “obviously trying to avoid me.”

Pfaff immediately detained defendant in handcuffs “until

[she] could figure everything out for safety.” Pfaff described

being “on high alert” and that her safety concerns arose

from the fact that she did not know where the driver was,

Cite as 318 Or App 713 (2022) 717

whether he was armed, and his frame of mind. The scene

was “very fluid, fast moving” and “chaotic.” She explained

that she detained defendant because she

“believed that more likely than not at the least that—that

was going to come back as a stolen vehicle. So the belief

that she had been a passenger in a stolen vehicle. She’s

leaving the scene, you know, that doesn’t really speak to

a—a person of innocence if she had been in a vehicle and

had not committed any kind of crimes, or had any infor-

mation regarding those crimes, I would have expected she

would stay in the vehicle and—and get police contact. So I

didn’t know what was going on. I didn’t know if she’d been

a (indiscernible) person in that vehicle. I had reason to

detain her and speak with her about what she was doing

and what was going on.”2

Pfaff checked defendant for weapons, told her that

she was not free to leave, separated her from her purse, and

detained her in the back of her patrol car for a short time,

at one point driving out of the parking lot and then quickly

returning. Defendant was cooperative, telling Pfaff the

driver’s name and potential alias, and that he had left with

a McDonald’s bag that she believed had a gun in it. Pfaff

let defendant out of the patrol car, took off the handcuffs,

and returned her purse to her. Defendant pulled up a photo-

graph of the driver from Facebook and gave it Pfaff to dis-

tribute to the other units in the area.

Officer Powell then arrived on the scene; at that

point, defendant was seated on a short brick wall near Pfaff,

and her purse was close to her. Pfaff asked Powell to take a

statement from defendant. Powell knew only that a vehicle

had attempted to elude during a traffic stop, the driver had

fled, and the passenger was detained at the scene. Powell

immediately asked defendant if there were any weapons

inside her purse or “anything [he] would need to know

about.” Defendant responded that there were drugs in the

purse and, in response to further questioning, that the drugs

were methamphetamine. Powell handcuffed defendant and

put her in the back of his patrol car while he conducted a

records check, which revealed that she was on supervision.

2

Pfaff later clarified that she did not know if defendant was a kidnap victim

or if she might need medical care.

718 State v. Brown

After contacting defendant’s supervision officer, Powell for-

mally arrested defendant, read her her Miranda rights, and

searched her purse. The search revealed a capped syringe

with a dark substance and a few plastic baggies, which

defendant admitted contained methamphetamine.

Defendant was charged with unlawful possession

of methamphetamine, ORS 475.894. She moved to suppress

the evidence obtained during the stop, contending that the

warrantless seizure and search violated Article I, section 9,

of the Oregon Constitution.3 The trial court denied the

motion, concluding that, “based on the totality of the cir-

cumstances, Officer Pfaff had reasonable suspicion to inves-

tigate this defendant for the crime of Unauthorized Use of

a Motor Vehicle [UUV], and she was properly detained.”

The court also found that Officer Powell “clearly articu-

lated his officer safety concerns, and those are reasonable

given the totality of the circumstances, and his lack of per-

sonal knowledge regarding the defendant’s interaction with

Officer Pfaff.” And, the court found that defendant “admit-

ted to the drugs[, a] detainer was issued[,] and the search

was made incident to arrest.”

A bench trial was held, and the court found defen-

dant guilty. She appeals the ensuing judgment of conviction.

Defendant maintains on appeal that the trial court

erred in denying her motion to suppress, contending, among

other arguments, that Pfaff lacked reasonable suspicion

to detain her and, even if the stop was lawful, there was

no objectively reasonable officer-safety justification for the

degree or duration of her detention. She further contends

that Powell’s question about the contents of her purse was

not based on a reasonable, circumstance-specific concern

for officer safety. As explained below, we agree with defen-

dant’s first argument—that the trial court erred in conclud-

ing that the stop was supported by reasonable suspicion of

UUV, thus it violated Article I, section 9—and we reverse

and remand on that basis. We therefore need not address

defendant’s alternative arguments.

3

Article I, section 9, provides, in part, 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[.]”

Cite as 318 Or App 713 (2022) 719

As noted, Article I, section 9, protects against war-

rantless searches and seizures. There is no dispute that this

case involves a “stop” of defendant—that is, the type of sei-

zure “that is a temporary detention for investigatory pur-

poses.” 4 Maciel-Figueroa, 361 Or at 169-70. The question is

whether the stop was lawful under Article I, section 9, which

we assess under the principles outlined in Maciel-Figueroa:

“For police officers to make a stop, they must reasonably

suspect—based on specific and articulable facts—that the

person committed a specific crime or type of crime or was

about to commit a specific crime or type of crime. For a

court to determine that an investigative stop was lawful

under Article I, section 9, the court (1) must find that the

officers actually suspected that the stopped person had

committed a specific crime or type of crime, or was about

to commit a specific crime or type of crime, and (2) must

conclude, based on the record, that the officers’ subjective

belief—their suspicion—was objectively reasonable under

the totality of the circumstances existing at the time of the

stop.”

Id. at 182. The officer’s suspicion “must be particularized to

the individual based on the individual’s own conduct.” State

v. Kreis, 365 Or 659, 665, 451 P3d 954 (2019). It “requires

less than probable cause but more than mere speculation.”

Id.

Here, the trial court concluded that Pfaff had rea-

sonable suspicion to stop defendant for the crime of UUV,

ORS 164.135 (2017), amended by Or Laws 2019, ch 530, § 1.5

Implicit in the court’s conclusion is a finding that Pfaff sub-

jectively believed that defendant had committed or was about

to commit UUV. See Reyes-Herrera, 369 Or at 61 (explain-

ing that we “assume that the trial court decided historical

facts necessary to its legal conclusions in a manner consis-

tent with those conclusions”). Defendant contends, first, that

4

There is not, for example, any contention that Pfaff detained defendant as

a potential material witness to a crime. See State v. Fair, 353 Or 588, 609, 302

P3d 417 (2013) (articulating the constitutional requirements for a “stop and tem-

porary on-the-scene detention of a likely material witness”).

5

ORS 164.135 (2017) provided, as relevant:

“(1) A person commits the crime of unauthorized use of a vehicle when:

“(a) The person takes, operates, exercises control over, rides in or other-

wise uses another’s vehicle, boat or aircraft without consent of the owner[.]”

720 State v. Brown

the record does not support the court’s implicit finding as to

Pfaff’s subjective belief and, second, that even if it does, that

belief was not objectively reasonable.

Defendant’s first contention presents a close ques-

tion on this record.6 However, it is a question we need not

resolve because, even assuming that Pfaff subjectively

believed that defendant had committed the crime of UUV,

we conclude, as a matter of law, that such a belief was not

objectively reasonable under the circumstances. See State

v. Bradford, 290 Or App 889, 894, 417 P3d 530 (2018) (“Our

review of a stop is ‘based on the record made concerning the

officer’s actual belief that the defendant may have commit-

ted a crime,’ as well as ‘the specific facts, articulated by the

officer, that led him or her to believe that the defendant may

have committed a crime, which we then review as a mat-

ter of law for objective reasonableness.’ ” (Quoting Maciel-

Figueroa, 361 Or at 183.)).

To satisfy the standard for reasonable suspicion

supporting an investigatory stop, the officer must “point to

specific and articulable facts that give rise to a reasonable

inference that the defendant committed or was about to

commit a specific crime or type of crime.” Maciel-Figueroa,

361 Or at 165. In other words, the state is not required to

prove “that the articulated facts give rise to a conclusion

with certainty that a crime has occurred or is about to

occur; instead, based on the specific facts known and articu-

lated by the officer, a reviewing court must conclude that the

officer’s subjective belief could be true, as a matter of logic.”

Id. at 184 (emphasis in original). Notably, “[a]lthough offi-

cers reasonably may draw inferences about human behavior

from their training and experience, an officer’s hunch based

6

Although Pfaff testified that she believed that defendant “had been a pas-

senger in a stolen vehicle” and a “person of innocence” would not have been leav-

ing the scene—which might support the court’s implicit finding as to her sub-

jective belief—Pfaff also testified that she “didn’t know what was going on” and

indicated that she did not know whether defendant was a suspect, a victim, or a

witness—which cuts against that finding. See State v. Bradford, 290 Or App 889,

893-94, 417 P3d 530 (2018) (“Mere suspicion that the person is engaged in some

kind of general criminal activity at the time of the stop is insufficient because,

‘[w]hen an officer’s suspicion reduces to that level of generality, such a rule would

permit an officer to stop an individual whenever the officer believes that the per-

son appears to be a criminal or that something about a situation seems “crimi-

nal.” ’ ” (Quoting Maciel-Figueroa, 361 Or at 181 (brackets in Bradford).)).

Cite as 318 Or App 713 (2022) 721

on training and experience is, by itself, insufficient to form

a basis for reasonable suspicion.” Kreis, 365 Or at 667 (inter-

nal quotation marks and citations omitted).

The state’s argument that it was objectively reason-

able for Pfaff to believe that defendant had committed UUV

is layered: The state argues that it was objectively reason-

able for Pfaff to believe that the Acura was stolen, based on

the make and age of the car, the driver’s elusive behavior,

and the fact that the driver did not match the gender or loca-

tion of the car’s registered owners.7 It follows from there, the

state contends, that it was objectively reasonable for Pfaff

to believe that defendant knew she was riding in a stolen

vehicle—see State v. Rayburn, 246 Or App 486, 489-90, 266

P3d 156 (2011), rev den, 351 Or 675 (2012) (“To convict a per-

son under ORS 164.135(1) for riding in a stolen vehicle, the

state must prove that the person knew that the vehicle was

stolen at the time he or she was a passenger.”)—based on

the facts that defendant “had been a passenger in the sus-

pected stolen vehicle, including at the time that the driver

eluded Pfaff and almost crashed into other cars,” and she

later walked away from the scene, not making eye contact

with Pfaff, and clearly trying to avoid her, when Pfaff would

have expected her to stay and contact police.

Even the state’s first premise is shaky. Pfaff’s obser-

vation that certain models of vehicles are easy targets for

theft is of little weight, especially given the fact that Pfaff

knew that the car had not been reported stolen. Similarly,

the fact that the car was registered to females in the Salem

area also provides little to support a suspicion that the car

was stolen. There was a female in the car, and it would not be

unexpected for a person from Salem to be in the Bridgeport

Village area, a distance of less than 40 miles. Those circum-

stances, at best, amount to no more than a “hunch” that

the car was stolen. That leaves only the driver’s behavior in

eluding the officer, which, to be sure, provides some support

for Pfaff’s suspicion that the Acura was a stolen vehicle. But,

7

The state points to the fact that the registered “names” did not match the

driver. To the extent the state is suggesting that reasonable suspicion might be

based on a mismatch between what seemed to the officer to be a Hispanic name

and the appearance of the vehicle’s driver and defendant, we reject that sugges-

tion categorically.

722 State v. Brown

as Pfaff herself articulated, that behavior could also indi-

cate that the driver had a suspended license or, indeed, a

myriad of other reasons for fleeing the police.

However, even assuming that Pfaff had objectively

reasonable suspicion that the Acura was stolen, that suspi-

cion is premised entirely on the driver’s conduct—yet indi-

vidualized suspicion as to defendant is required to satisfy

Article I, section 9. See State v. Kingsmith, 256 Or App 762,

772, 302 P3d 471 (2013) (“[M]ere proximity to suspected

criminal activity, or association with a suspected (or known)

criminal, is insufficient to support reasonable suspicion.”). In

other words, Pfaff’s suspicion that the car was stolen, even if

objectively reasonable, does not alone give rise to a reason-

able inference that defendant knew that it was stolen—that

is, that defendant knew that she was riding in a car without

the owner’s permission. See State v. McCall, 315 Or App 538,

542, 501 P3d 1086 (2021) (“For UUV, the officers must have

had an objective basis to believe that defendant exercised

control over or otherwise used the vehicle knowing that the

vehicle was stolen.”); State v. Gibson, 268 Or App 428, 430,

342 P3d 168 (2015) (under ORS 164.135, the person using

the vehicle “must know that he or she does not have the

owner’s consent” to do so).

And, the only other circumstance Pfaff articulated

to support her suspicion that defendant had committed

UUV was that defendant started to walk away from the

scene after the driver fled, avoiding contact with Pfaff, when

Pfaff would have expected a “person of innocence” to stay

and contact police. We have frequently observed, however,

that a person’s nervous or potentially furtive acts add lit-

tle to the reasonable suspicion calculus. See, e.g., State v.

Dawson, 282 Or App 335, 342, 386 P3d 165 (2016) (so stat-

ing and listing examples). In Dawson, we concluded that the

facts of (1) the defendant’s nervous behavior, (2) his vague

and “potentially evasive” response that he had borrowed the

vehicle from a friend, and (3) the lack of connection between

the defendant and the registered owner, were insufficient to

support reasonable suspicion of UUV to justify extension of

a traffic stop. Id. at 342-43. As to the evasive nature of the

defendant’s response, we explained:

Cite as 318 Or App 713 (2022) 723

“As we have held, a ‘defendant’s evasive reaction to ques-

tioning that he [was] constitutionally entitled to refuse to

answer,’ even in combination with past criminal activity,

does not provide reasonable suspicion of current criminal

activity. See State v. Frias, 229 Or App 60, 65-66, 210 P3d

914 (2009) (concluding that the defendant’s evasive response

about why he had been visiting a friend, combined with offi-

cer’s knowledge that the defendant had history of drug use,

did not create reasonable suspicion of current drug use).”

Dawson, 282 Or App at 343 (brackets in Dawson). Here,

there are even fewer specific, articulable facts to support

reasonable suspicion than there were in Dawson.

The state contends that our decision in Rayburn

leads to the conclusion that Pfaff’s belief that defendant

committed UUV was objectively reasonable. However, in

that case, the totality of the circumstances included reli-

able information that the car in which the defendant was

a passenger was stolen—the car’s license plate number

matched the number of a stolen car—a fact that is conspic-

uously absent in this case. 246 Or App at 491. Moreover,

the officers knew that the vehicle was being driven reck-

lessly shortly before the encounter and its occupants were

throwing objects out of it, the defendant was riding in the

car when they encountered him, and the driver was unable

to remove the key from the ignition. Id. at 490-91. Together,

those circumstances led us to conclude that probable cause

existed that the “defendant and his friends had been joy-

riding in a car that they all knew was stolen.” Id. at 493.

Although reasonable suspicion presents a lower bar

than the probable cause standard at issue in Rayburn, it

nonetheless requires more than speculation, which is all that

ties defendant to the crime of UUV in this case. See Kreis,

365 Or at 665 (reasonable suspicion “requires less than prob-

able cause but more than mere speculation”). We are unpre-

pared to say that merely being a passenger in a car that an

officer suspects to be stolen and walking away from the car

without volunteering to talk with the police is sufficient to

establish reasonable suspicion of UUV. It follows that the

trial court erred in denying defendant’s motion to suppress.

Reversed and remanded.