State v. Musser

Under ORS 164.245, criminal trespass in the second degree is measured under an objectively reasonable person standard, and under ORS 131.605(6) an officer must have a reasonable suspicion of criminal activity to make a stop. Evidence discovered during an illegal stop is inadmissible.

Defendant appealed the trial court’s conviction for possession of methamphetamine. The officer stopped the Defendant around 10:00 p.m. in an alley between two buildings in the Springfield Value Village shopping center. The officer, knowing the alley has frequent criminal activity, asked and received consent to search Musser’s purse. He found methamphetamine and arrested her. The trial court denied the Defendant’s motion to suppress stating the officer had reasonable suspicion to stop the Defendant. On appeal, the Defendant assigned error to the trial court’s denial of her motion to suppress evidence arguing the stop was illegal because the officer did not have a reasonable suspicion of criminal activity, and that the illegal stop tainted the evidence discovered. The Court of Appeals concluded the officer did not have reasonable suspicion to stop the Defendant for trespassing. Under ORS 131.605(6), a stop amounts to a seizure, and the officer’s suspicion must be reasonable and based on specific facts. The Court directed its analysis to the definitions of trespassing in the second degree, ORS 164.245, and the characteristics of the walkway. An objectively reasonable person could have thought he or she was free to remain on the walkway along the west building. Two restaurants were open near the walkway, and a posted sign read: “No trespassing or loitering from 11 PM - 7AM.” Accordingly, the evidence should have been suppressed. Reversed and remanded.