FILED: July 31, 2002

STATE OF OREGON,

Respondent,

v.

DAVID CLYDE HALL,

Appellant.

En Banc

Appeal from Circuit Court, Klamath County.

Richard B. Rambo, Judge.

Argued and submitted December 21, 2001; resubmitted en banc June 11, 2002.

Louis R. Miles, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, Public Defender.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Deits, Chief Judge, and Edmonds, Landau, Haselton, Armstrong, Linder, Wollheim, Kistler and Brewer, Judges.

EDMONDS, J.

Reversed and remanded.

Brewer, J., concurring.

Deits, C. J., dissenting.

EDMONDS, J.

Defendant appeals from a conviction for possession of a controlled substance. ORS 475.992(4)(b). He assigns as error the trial court's denial of his motion to suppress evidence that was seized from his pocket during an allegedly unlawful stop. He also assigns as error the denial of his motion to dismiss for lack of a speedy trial. We are not persuaded by defendant's argument that the case should be dismissed for lack of a speedy trial under ORS 135.747. Suffice it to say that defendant himself contributed to much of the delay. See State v. Jenkins, 29 Or App 751, 756, 565 P2d 758 (1977) ("The defendant cannot take advantage of delays caused by his own conduct whether or not the delays were justified."). However, we reverse on the basis of defendant's first assignment of error.

In regard to the seizure of evidence from defendant's person, the trial court made, in substance, the following findings. Defendant was walking along Washington Street near 10th Street in Klamath Falls toward the location where he had stored his backpack. Officer Deese, in a marked patrol car, drove past defendant, going in the opposite direction. Deese did not recognize defendant, nor did he see anything about defendant's conduct that would justify a reasonable suspicion of criminal activity. Deese noticed that defendant looked at him and then looked away. He also saw in his rear-view mirror that defendant turned to look at the police car about four more times after the patrol car passed him. Deese turned his vehicle around and drove back to where defendant was walking. He stopped his car near defendant and signaled with two fingers of his hand for defendant to come toward him. (1) Defendant stopped walking and turned toward Deese. Deese got out of his car, said "Excuse me," and asked defendant if he had any identification. Defendant gave Deese an Oregon identification card. Deese radioed the information from the card to a dispatcher, using a shoulder radio, and then returned the card to defendant. (2) The record check on defendant's identification card provided no basis for a restraint of defendant's liberty. While waiting for the record check, Deese noticed that defendant was wearing a jacket that "looked like it had items inside of it." Deese asked defendant if he had any knives, weapons, or drugs, and defendant said, "No." Deese then asked, "Would you mind if I checked?" Defendant said, "Okay." Deese then did a quick patdown and found no weapons. He did, however, find a small glass vial, which later proved to contain traces of amphetamine. (3) The evidence obtained from the search of defendant's pocket led to defendant's conviction that is before us now on appeal.

Before trial, defendant moved to suppress the evidence of the vial and its contents. (4) In his motion, he argued that Deese's gesture when he "signaled with two fingers of his hand for the defendant to come in his direction" was "an unlawful stop because there was no reasonable suspicion to justify it" and that the seizure and subsequent search of the glass vial "constituted exploitation of the unlawful stop." The state responded:

"[T]his is not a stop. It was merely an encounter[.] [T]he officer pulled the vehicle in near the Defendant or next to him and did not stop the Defendant's travel. The vehicle didn't stop him, there were no orders given to the Defendant. * * * And in this case I think it is important the officer did not retain the Defendant's identification, he looked at it, he called in the name and then he immediately gave it back. So the Defendant was not held in place because the officer had something that belonged to the Defendant. So overall, again the State's position is that if this was a stop it certainly, any evidence should be suppressed, but I don't think it was a stop. It was a mere encounter."

The trial court concluded that Deese's contact with defendant did not restrain defendant's liberty and that there were therefore no grounds for suppression of the evidence. It denied the motion to suppress, and defendant was ultimately convicted.

We are bound by the trial court's findings of fact if there is evidence in the record to support them. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). Here, there is evidence to support each finding. Therefore, the question presented by this appeal is legal in nature. (5) Generally, "[a] compelled stop of a person on a public road, of course, requires justification." Nelson v. Lane County, 304 Or 97, 101, 743 P2d 692 (1987). "Ours is not a society where police can stop any citizen and require the production of an 'identification card' without reason." State v. Tourtillot, 289 Or 845, 868, 618 P2d 423 (1980), cert den 451 US 972 (1981). (6) We have also acknowledged, however, that

"[s]treet encounters between patrolling policemen and citizens call the most subtle aspects of the Fourth Amendment into play. * * *

"The police have no less right than any other person to approach another and make inquiry regarding circumstances of interest. * * * The encounter becomes subject to the restrictions of the Fourth Amendment, however, when the citizen's freedom of movement is restricted or his right to privacy is intruded upon by the process of inquiry or as a development of an encounter which was initiated for non-criminal purposes. A holding of the person, no matter how minor, is a seizure within the meaning of the Fourth Amendment even though no arrest has occurred." State v. Evans, 16 Or App 189, 193-94, 517 P2d 1225 (1974).

Thus, ultimately, this case presents a question of Deese's authority: whether he was lawfully authorized to act in the manner described above by some statute and whether his authority to do so, if any, is circumscribed by the state and federal constitutions.

We inquire initially whether Deese's actions were authorized by any statute. State v. Amaya, 176 Or App 35, 29 P3d 1177 (2001), rev allowed 334 Or 288 (2002) (if a statutory analysis is sufficient to resolve the legality of a restraint of liberty, a constitutional analysis is unnecessary). We are not aware of any statute that would authorize Deese's conduct, and the parties have not cited one to us. ORS 131.615 requires an officer to have reasonable suspicion before making a stop. ORS 810.410, which authorizes a stop of a pedestrian for pedestrian traffic violations, also requires reasonable suspicion that the pedestrian has committed a traffic infraction. Here, Deese had no reasonable suspicion of any criminal misconduct or traffic violations.

We turn to the state constitutional issue: whether Deese's actions violated Article I, section 9, of the Oregon Constitution. Stated another way, did Deese's conduct constitute a permissible citizen encounter or an unlawful seizure of defendant's person? In State v. Holmes, 311 Or 400, 410, 813 P2d 28 (1991), the Supreme Court explained the difference between a citizen encounter with a police officer and an unlawful seizure:

"[L]aw 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. A street or public place encounter does not amount to an Article I, section 9 'seizure' merely because the encounter may involve inconvenience or annoyance for the citizen and the other party to the encounter is known to be a law enforcement officer. Even physical contact does not transform the encounter into a 'seizure' if it is a normal means of attracting a person's attention (e.g., policeman tapping citizen on the shoulder at the outset to get a citizen's attention). See LaFave, 3 Search and Seizure, A Treatise on the Fourth Amendment 413,