Submitted: June 18, 2013.
Jackson County Circuit Court 101545MI. Timothy Barnack, Judge.
Peter Gartlan, Chief Defender, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge. Hadlock, J., dissenting.
[263 Or.App. 580] SERCOMBE, J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII). ORS 813.010. He assigns error to the trial court's denial of his motion to suppress evidence discovered as a result of what he contends was an unlawful seizure under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. In particular, defendant argues that he was unlawfully stopped when an officer knocked on the door of his residence, asked him to come outside and talk, accompanied him to a place outside to conduct field sobriety tests, read him his Miranda rights, and then asked for his consent to a patdown search. The state responds that, under the totality of the circumstances, a reasonable person would have understood that he or she was free to leave and, therefore, defendant was not stopped under either the state or federal constitution. We agree with defendant that the circumstances in this case amounted to a stop under Article I, section 9. Accordingly, we reverse and remand.
We review a trial court's ruling on a motion to suppress for legal error and are bound by the court's findings of historical fact if there is evidence to support them. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005). To the extent that the court did not make express findings on disputed factual issues, we state the facts consistently with the court's ultimate conclusion. Id. We state the facts of this case in light of those standards.
Just before 8:00 p.m. on April 10, 2010, Groom, a deputy with the Jackson County Sheriff's Department, received a call about a vehicle stuck in a ditch in front of a residence on Butte Falls Highway. Approximately 15 minutes later, Groom pulled into defendant's driveway in a marked patrol car and saw a pickup truck with its front end stuck in a large ditch on the side of the road, near the driveway. The truck was registered to defendant.
It appeared to Groom that the driver of the truck had taken too wide a turn when attempting to enter the driveway. Groom believed that the circumstances indicated that the person who had been driving the truck may have been impaired and, with that in mind, he " went to look for [263 Or.App. 581] an impaired driver at the residence." Groom, who was in uniform, knocked on the door of the residence, and it was answered by defendant's wife. She told Groom that she had been driving the truck and had gotten stuck in the
ditch when she swerved to avoid hitting a dog, but Groom did not believe that she was being truthful. A second deputy, Avery, who had arrived at the residence near the same time as Groom, was also present while Groom spoke with defendant's wife. Groom then asked Avery to go across the street and speak to the witness who had called in the report about the truck, and Avery did so.
While he was talking with defendant's wife, Groom saw defendant, who appeared to be very intoxicated, " staggering around in the house." Defendant then sat down on the couch in the view of Groom. Groom asked defendant, who is hard of hearing, to come out and speak with him and, in response, defendant went out on the porch or front landing of the residence. Immediately after defendant went outside, he walked with Groom " into a flat area where [Groom intended] to have [defendant] perform field sobriety tests." Groom then read defendant his Miranda rights because he was conducting an investigation of a possible DUII or " some kind of crime." Defendant acknowledged that he understood those rights. Groom then asked defendant for permission to pat him down for weapons--Groom's " common practice" after giving Miranda warnings--and defendant agreed. While conducting the patdown, Groom located the keys to the truck in defendant's pocket. Thereafter, defendant made incriminating statements and was subsequently arrested for DUII.
Before trial, defendant filed a motion to suppress, asserting that he had been unlawfully seized before the patdown search and that evidence obtained as a result must be suppressed under Article I, section 9, and the Fourth Amendment. After holding a hearing, the court denied the motion to suppress.
On appeal, defendant contends that the trial court erred in denying his motion to suppress, arguing that, under the state and federal constitutions, Groom's actions in coming to his residence, asking him to come out and talk, [263 Or.App. 582] reading him Miranda warnings, and asking for consent to pat him down amounted to a stop. Further, he asserts that the stop was not justified by reasonable suspicion. See State v. Ehly, 317 Or. 66, 80, 854 P.2d 421 (1993) (" [I]f a police officer is able to point to specific and articulable facts that give rise to a reasonable inference that a person has committed a crime, the officer has 'reasonable suspicion' and hence may stop the person for investigation." ). The state, for its part, does not contend that there was reasonable suspicion to support a stop or that, if the encounter amounted to a stop, suppression of the evidence is not required. Rather, the state argues only that, " [b]ecause asking defendant to come outside, reading him his Miranda rights, and asking for consent to pat him down did not effect a stop, the trial court correctly denied defendant's motion to suppress."
Thus, the question we must resolve in this case is whether the encounter amounted to a stop. Under Article I, section 9, individuals are guaranteed the right to be " secure in their persons * * * against unreasonable search, or seizure."  Because " [n]ot all governmental intrusions trigger the protections guaranteed" by Article I, section 9, " we must first decide whether the action is either a 'search' or a 'seizure' within the meaning of that section." State v. Juarez-Godinez, 326 Or. 1, 5, 942 P.2d 772 (1997).
" 'Analytically, police-citizen encounters typically fall into one of three categories that correlate the degree of intrusiveness on a citizen's liberty with the degree of justification required for the intrusion. At one end of the continuum are mere encounters for which no justification is required. At the other end are arrests, which involve protracted custodial restraint and require probable cause. In between are temporary detentions for investigatory purposes, often termed " stops," which generally require reasonable suspicion. Both stops and arrests are seizures for constitutional purposes, while less restrictive encounters are not.'"
State v. Backstrand,
354 Or. 392, 399, 313 P.3d 1084 (2013) (quoting State v. Fair, ...