A100009, Opinion — State v. Puffenbarger

426
Argued and submitted March 31, 1999, reversed and remanded April 12, 2000
STATE OF OREGON,
Respondent,
u.
JOHNNY RANDOLPH PUFFENBARGER,
Appellant.
(C9704-32861; CAA100009)
998 P2d 788

Cite as 166 Or App 426 (2000) 	427
CJS, Arrest§ 45.
Appeal from Circuit Court, Multnomah County.
Janice R. Wilson, Judge.
Andy Simrin argued the cause for appellant. On the brief
were David E. Groom, Public Defender, and Diane L. Alessi,
Deputy 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 	Edmonds, 	Presiding 	Judge, 	and 	Deits, 	Chief
Judge, and Armstrong, Judge.
DEITS, C. J.
Reversed and remanded.

428 	State v. Puffenbarger
DEITS,C.J.
Defendant appeals his conviction of felon in posses-
sion of a firearm. ORS 166.270. He was convicted on stipu-
lated facts after the trial court denied his motion to suppress
evidence seized and statements that he made at the time of
his arrest. We reverse.
The trial court made extensive findings of fact that
we conclude are supported by constitutionally sufficient evi-
dence in the record. Accordingly, we are bound by the court's
factual findings. State u. Ehly, 317 Or 66, 75, 854 P2d 421
(1993). The trial court found:
"Officer Watts saw [defendant] walking on the sidewalk
in Northeast Portland about 3:30 a.m. on April 11, 1997 but
made no contact with him.
"Officer Watts and his partner, Officer Ossenkop, Offi-
cer Ossenkop being the driver of their marked patrol vehi-
cle, saw the defendant about 20 minutes later still walking
about nine blocks from the place of the initial sighting ifyou
will by Officer Watts. The officers at that time were out of
their patrol vehicle completing a conversation with other
people, clearing that contact as they say.
"They engaged in conversation with [defendant], asked
him his name, his date of birth and his address. They did
not ask him to alter his direction or interfere with his free-
dom of movement. They did not obtain or ask or get their
hands on any form of identification from him.
"In that conversation, one of the officers asked [defen-
dant] if he had been arrested before. [Defendant] said he
had been arrested only for traffic matters. Officer Watts
asked the defendant if he would consent to a search of his
person and [defendant) said no. [Defendant] asked if he was
free to go. Officer Watts told him he was. [Defendant]
walked away.
"Officer Watts then ran [defendant's] name on the MDT,
the mobile computer in the patrol car. The response on the
computer was slow, apparently often is. And eventually
information came back on [defendant's] name including
information that he had been arrested in September of 1996
for a weapon's offense.

Cite as 166 Or App 426 (2000) 	429
"While they were waiting for the information to come
back on the computer, the officers followed [defendant] roll-
ing slowly in the patrol vehicle at about 50 to a hundred feet
behind [defendant] where [defendant] was on the sidewalk.
They rolled along at about the same speed [defendant] was
walking. They didn't have overhead lights on, no siren,
didn't use their PA system or their side bar light while they
were awaiting this information from the computer.
"When the computer information came back, this was
after many blocks of following including a period during
which Officer Watts got out of the patrol vehicle and kept
visual contact with [defendant] while Officer Ossenkop took
the patrol vehicle around where 14th Place didn't go
through and then Watts got back in the car.
"Anyway, after these many blocks of following [defen-
dant] after the return of this information, the officers pulled
their patrol vehicle up along [defendant].111
"Now, during this time period, I'm not sure whether this
is a finding or a conclusion but [defendant] did not want to
interact with the police any further and he manifested that
clearly by his conduct.
"When the patrol vehicle pulled up along of[ defendant],
again Officer Ossenkop called out to the defendant, asked
him in some sense or some words what was the situation
with the weapon's arrest, what was the deal with that or
why had he not mentioned it before, and Officer Ossenkop
also asked [defendant] what he would find if he searched
him.
"As this conversation is occurring Officer Ossenkop
stopped the patrol vehicle. Officer Watts got out. And as
Officer Watts got out of the patrol vehicle, [defendant]
started running. Officer Watts chased after him.
"As Officer Watts followed [defendant], he observed
[defendant] cross 9th Street or 9th Avenue outside of the
crosswalk area, crosswalk in this situation being defined as
an imaginary extension of the sidewalk because there were
no painted markings, and also saw [defendant] make that
1 At this point, when the officers pulled up alongside defendant they were driv-
ing next to the curb in the oncoming lane, so that Ossenkop was talking to defen-
dant out the driver's side window.

430 	State v. Puffenbarger
street crossing at approximately a 35 to 40 degree angle to
the street, not perpendicular.
"After this street crossing by [defendant], Officer Watts
yelled at the defendant to stop and told him that he was
under arrest. [Defendant] continued running and at the
apartment complex where he resided reached a boat lean-
ing against, a small boat leaning against a wall and reached
behind that boat. Officer Watts heard a sound when he saw
[defendant] with his hand between the wall and the boat,
heard a sound that in Officer Watts' experience was consis-
tent with a thud, metallic thud, consistent with the sound of
a metal gun hitting the ground.
"[Defendant] reached his back porch, laid down on his
back, out of breath, pounded on the door yelling for his part-
ner, Ms. Nagy, to come out.
"When Officer Watts reached [defendant] on his porch
in that position, he was continuing to yell at [defendant]
that he was under arrest and attempting to gain compli-
ance so he could be handcuffed.
"Officer Watts used physical force several times on
[defendant] to gain his compliance with his commands and
to get [defendant] into handcuffs including blows to the
back or back of the neck and knee, to [defendant's] side.
"Officer Watts finally succeeded in handcuffing [defen-
dant], left him briefly under the supervision of other officers
who had arrived at the scene, went back to the boat and
found state's exhibit 1, the gun.
"* * * When [defendant] dropped the gun between the
boat and the wall, he intended to abandon it there so it
would not be found on him.
"When Officer Watts, after he found the gun, returned
to the defendant, he took him to his patrol car. While he was
still standing outside of the patrol car, advised [defendant]
of his rights per Miranda.
"* * * * *
"Officer Watts then conducted a search of [defendant]
incident to his arrest and pursuant to Portland City Ordi-
nance Inventory of Persons and in that search found state's
exhibits 2 and 3 in [defendant'sl inside jacket pocket.

Cite as 166 Or App 426 (2000) 	431
"[Defendant] then made statements in response toques-
tions by Officer Watts about the gun and the ammunition.
He made those statements out of a desire to explain himself
and not out offear offurther beating by Officer Watts.
"* * * * *
"But actually, I didn't make this as a finding but I could
find it if necessary. I don't believe Officer Ossenkop actually
said we are going to search you anyway. I think that is what
[defendant] believed. And I think that is why he took off
because he knew this was coming, these cops were not going
to give up. They were just going to keep after him until they
found some reason to stop him despite the fact that he said
he wanted to get away."
Before trial, defendant moved to suppress "the stop
of defendant and all statements attributed to defendant on
the grounds that said stop was without a reasonable suspi-
cion to believe that defendant had engaged in criminal activ-
ity and that the statements were elicited in violation of defen-
dant's rights under statute and under federal and state
constitutions." The trial court denied defendant's motion.
The court agreed with the state's contention that the analysis
of whether defendant was stopped or "seized" is the same
under Article I, section 9, of the Oregon Constitution, 2 and
the Fourth Amendment to the United States Constitution.:i
Based on that premise, the court then concluded that defen-
dant was not stopped until Watts made physical contact with
him on the porch because, until that time, defendant had not
submitted to the authority of the police. The trial court
explained:
"* * * I think under either state or federal law the result is
the same. I find nothing in the Oregon case law that sug-
gests that our Oregon Appellate Courts have interpreted
the Oregon constitutional provisions any differently than
"Article I, section 9, of the Oregon Constitution, provides, in pertinent part:
"No law shall violate the right of the people to be secure in their persons,
houses, papers, and effects against unreasonable search, or seizurer. l"
' The Fourth Amendment to the United States Constitution, applicable to the
states through the Fourteenth Amendment, provides, in pertinent part:
"The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be violated!. I"

432 	State v. Puffenbarger
the U. S. Supreme Court has interpreted the federal consti-
tution with respect to what constitutes a seizure of the per-
son and arrest in the constitutional sense and that in fact
the standard is the same. There has to be either a physical
laying on of hand, even ifthe defendant subsequently, you
know, slips away from that, or it is by-or the defendant
has to submit to a show of authority without the actual lay-
ing on of hand. I think that is the same standard under
Oregon.
"* * * * *
"There was not-even though there was that display of
authority by the chase, there wasn't an arrest or constitu-
tional seizure because [defendant] didn't submit to that dis-
play of authority."
On appeal, defendant assigns error to the trial
court's denial of his motion to suppress. Defendant argues
that he was stopped when Watts began to chase him. At that
time, defendant asserts, the officers lacked a reasonable sus-
picion that he had committed a crime and, therefore, the stop
was an unlawful seizure under Article I, section 9, of the
Oregon Constitution, and the evidence obtained as a result of
that seizure must be suppressed.
As noted above, the trial court made extensive find-
ings of fact that are supported by the record. Consequently,
our function on review is to evaluate the totality of the cir-
cumstances to determine ifthe trial court applied legal prin-
ciples correctly to those facts. Ehly, 317 Or App at 74-75. We
begin by concluding that the trial court erred in holding that
the legal analysis would be the same under either state or
federal law. The protection against unlawful seizure under
Article I, section 9, of the Oregon Constitution, as defined by
the Oregon courts, is not identical to that offered by the
Fourth Amendment as it has been defined by the United
States Supreme Court. Compare State v. Holmes, 311 Or400,
409-10, 813 P2d 28 (1991) (stop occurs when suspect believes,
and such belief is objectively reasonable, that an officer has
intentionally and significantly interfered with suspect's free-
dom of movement), with California v. Hodari, 499 US 621,
626, 111SCt1547, 113 L Ed 2d 690 (1991) (actual physical
restraint or compliance with show of authority required).

Cite as 166 Or App 426 (2000) 	433
In Hodari, the United States Supreme Court case on
which the trial court based its decision, the defendant ran
from the police and kept running and did not comply with the
"show of authority" of the police officers who were chasing
him and calling for him to stop. The Supreme Court held that
the defendant was not seized because "[a]n arrest requires
either physical force (as defined above)' 41 or, where that is
absent, submission to the assertion of authority." Hodari,
499 US at 626. However, under Article I, section 9, of the
Oregon Constitution, a "seizure" occurs
"(a) if a law enforcement officer intentionally and signifi-
cantly restricts, interferes with, or otherwise deprives an
individual of that individual's liberty or freedom of move-
ment; or (b) whenever an individual believes that (a), above,
has occurred and such belief is objectively reasonable in the
circumstances." Holmes, 311 Or at 409-10.
As can be seen, unlike the analysis under the Fourth Amend-
ment, the Oregon Constitution does not require a submission
to authority or the use of physical force for police action to
constitute a seizure.
We first consider whether the officer's conduct here
was a seizure under Article I, section 9. State v. Gerrish, 311
Or 506, 510, 815 P2d 1244 (1991). The Oregon Supreme
Court has identified three types of street encounters between
police officers and citizens: (1) an "arrest," which must be jus-
tified by probable cause; (2) a "stop," which is a temporary
restraint justified by reasonable suspicion that the citizen is
involved in criminal activity; and (3) "mere conversation,"
which requires no justification and involves no restraint of
the citizen. See, e.g., State v. Dahl, 323 Or 199, 206, 915
P2d 979 (1996); Holmes, 311 Or at 407; State v. Warner, 284
Or 147, 	161, 585 P2d 681 	(1978). 	Of these categories,
only arrests and stops constitute seizures under Article I,
section 9.
The 	determination 	of whether 	a 	police-citizen
encounter is a seizure within the meaning of Article I, section
' The Court stated that"[ t Jhe word 'seizure' readily bears the meaning of a lay-
ing on of hands or application of physical force to restrain movement, even when it
is ultimately unsuccessful." Hodari, 499 US at 626.

434 	State v. Puffenbarger
9, requires "a fact-specific inquiry into the totality of the cir-
cumstances." Holmes, 311 Or at 408. In discussing how to dis-
tinguish between a police-citizen encounter that represents
mere conversation and one that constitutes a stop requiring
reasonable suspicion, the Supreme Court explained:
"Under these 'seizure' standards, law enforcement offi-
cers remain free to approach persons on the street or in pub-
lic 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 incon-
venience 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 per-
son's attention (e.g., policeman tapping citizen on the shoul-
der at the outset to get a citizen's attention). See LaFave,
3 Search and Seizure, A Treatise on the Fourth Amend-
ment 413, § 9.2(h) (2d ed 1987). Rather, the encounter is a
'seizure' of a person only if the officer engages in conduct
significantly beyond that accepted in ordinary social inter-
course. The pivotal factor is whether the officer, even if
making inquiries a private citizen would not, has otherwise
conducted himself in a manner that would be perceived as a
nonoffensive contact it if had occurred between two ordi-
nary citizens." Holmes, 311 Or at 410 (emphasis added).
As the trial court found, 	defendant subjectively
believed that the officers wanted to interfere with his free-
dom of movement. The determination of defendant's subjec-
tive belief is a question of fact for the trial court. The deter-
mination 	of whether 	defendant's 	belief was 	objectively
reasonable requires 	an independent assessment by this
court. State v. Toevs, 327 Or 525, 535, 964 P2d 1007 (1998).
Here, the officers had followed defendant for approx-
imately twelve blocks, even as he changed directions, and,
when his route did not permit the police car to follow, Watts
followed defendant on foot until the car was once again able
to proceed behind defendant. The officers called out questions
to defendant from their car as Ossenkop drove it on the
wrong side of the street and, eventually, they stopped the car,

Cite as 166 Or App 426 (2000) 	435
got out, 	and walked toward defendant. As the officers
approached him, defendant tried to leave their presence by
running away, but they ran after him. The officers' conduct
here was significantly beyond what would be acceptable from
an ordinary citizen and amounted to more than an inconven-
ience or annoyance to defendant. We conclude that defen-
dant's belief was objectively reasonable under the totality of
the circumstances here. A reasonable person could have
believed that, by their conduct, the officers here were mani-
festing an intent to restrict or interfere with his freedom of
movement.
The state argues that the officers' pursuit of defen-
dant was merely an attempt to stop defendant, that Watts did
not explicitly tell defendant to stop and that, until he was
actually physically stopped by Watts, it was not reasonable
for defendant to believe that his freedom of movement was
being interfered with and that he was not "seized" for consti-
tutional purposes. We disagree. A person's freedom of move-
ment may be interfered with, so as to constitute a seizure
under Article I, section 9, not only by means of physical
restraint but also by a show of authority such as occurred
here. State v. Juarez-Godinez, 326 Or 1, 6, 942 P2d 772
(1997); State v. Powelson, 154 Or App 266, 274, 961P2d869
(1998); State v. Johnson, 105 Or App 587, 591, 805 P2d 747
(1991); State v. Canape, 46 Or App 453, 457, 611 P2d 1190
(1980). As discussed above, at the time that the police started
chasing him, their show of authority was sufficient for defen-
dant to believe that his freedom of movement was being
interfered with. At that time, as the state acknowledges, the
officers did not have a reasonable suspicion that defendant
had committed a crime. Consequently, the evidence obtained
as a result of the stop must be suppressed. 5 Accordingly, the
trial court erred in denying defendant's motion to suppress.
Reversed and remanded.
" In view of our conclusion, it is unnecessary to address defendant's arguments
that the trial court erred in concluding that the officers' conduct violated the
Fourth Amendment and that any reasonable suspicion based upon the officers'
observation of defendant's violation of Portland's jaywalking ordinance did not
assist the state because the city's ordinance was preempted by state law.