OR: Furtive gesture alone in OR not enough, but here there was more

Defendant was smoking in a car in a subdivision being developed, so it couldn’t be called a high crime area. A citizen informant called in that the case was suspicious, so an officer was dispatched to see. When defendant saw the police car, he was startled, and he then made a furtive gesture. While furtive gestures alone are not enough in Oregon, here there was more, and the stop was based on reasonable suspicion that there might be a gun. State v. Clink, 270 Or. App. 646 (April 29, 2015):

Defendant’s movements, after he spotted Wolf, contribute to our conclusion that, under the totality of the circumstances, Wolf reasonably suspected that defendant had been engaged in criminal activity. Although “furtive gestures” alone may not give rise to reasonable suspicion, they can contribute to the reasonableness of an officer’s belief that a person has committed a crime or presents a safety threat. See State v. Rudnitskyy, 266 Or App 560, 565, 338 P3d 742 (2014), rev den, 357 Or 112 (2015) (a police officer had reasonable suspicion justifying his stop of the defendant because of the “defendant’s furtive gesture with [a] straw,” combined with other factors including the officer’s “knowledge that plastic straws are commonly used to smoke heroin”). Here, Wolf explained that defendant’s “elaborate,” “deliberate,” and “furtive” movements suggested that “he was concealing a large hard object.” What Wolf perceived as an attempt to conceal or retrieve a weapon could contribute either to a reasonable suspicion that defendant presented a safety threat or—given Wolf’s belief that “people who use drugs are often associated with firearms”—to a heightened suspicion that defendant was engaged in illegal drug activity. See State v. Mitchele, 240 Or App 86, 94, 251 P3d 760 (2010) (defendant’s furtive attempt to hide from approaching police officers “add[ed] support to the conclusion that the officers’ suspicion that defendant was engaging in or about to engage in criminal activity”). Finally, Wolf’s testimony that citizen reports of criminal activity “that come from this particular neighborhood *** have more merit than [those from] other areas of [the] city” may not be weighty evidence, but it contributes at least slightly to the totality of the circumstances that demonstrate the reasonableness of his suspicion that defendant had been committing a crime. See generally State v. Killion, 229 Or App 347, 356, 211 P3d 367, rev den, 347 Or 349 (2009) (ultimately, “whether the [informant’s] report is reliable rests on the particular circumstances in each case, because informant tips vary greatly in their value and reliability” (internal quotation marks omitted)).