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State v. Nichols

Court of Appeals of Oregon

March 4, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
BURTON LEE ASKER NICHOLS, Defendant-Appellant

Argued and Submitted January 30, 2014

Washington County Circuit Court D113550T.

Affirmed.

Elizabeth G. Daily, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Michael Seung Moak Shin, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jake J. Hogue, Assistant Attorney General.

Before Armstrong, Presiding Judge, and Egan, Judge, and De Muniz, Senior Judge.

OPINION

Page 469

[269 Or.App. 430] ARMSTRONG, P. J.

Defendant appeals his judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. He argues that the trial court erred in denying his motion to suppress evidence because the police officer who stopped him lacked reasonable suspicion that he was committing DUII and, hence, the officer violated Article I, section 9, of the Oregon Constitution[1] and the Fourth Amendment to the United States Constitution[2] by stopping him. We conclude that, under the totality of the circumstances observed and articulated by the officer, the officer's stop of defendant was justified by reasonable suspicion. Accordingly, we affirm.

We review a trial court's denial of a suppression motion for legal error, and defer to the trial court's findings of fact when there is sufficient evidence in the record to support them. State v. Bertha, 256 Or.App. 375, 378, 300 P.3d 265 (2013). In the absence of express findings, we assume that the trial court resolved any factual disputes consistently with its ultimate conclusion. Id. In accordance with that standard, the pertinent facts are as follows.

Around 2:00 p.m., Washington County Sherriff's Deputy Braun was near a pub responding to an unrelated call. Braun is a field-training officer and a field sobriety test (FST) instructor, with significant training and experience identifying signs of intoxication and handling DUII stops. While on the original call, he went into the pub to speak to a patron and noticed two loud, boisterous women sitting in a patio area who appeared to be intoxicated. After Braun left [269 Or.App. 431] the pub, he was standing with other officers in the parking lot area away from the pub. Braun saw the two intoxicated women from the pub leave and head toward a vehicle, when defendant came out to join them. The two women were " very intoxicated" and " appeared to be almost falling down" when

Page 470

they got into the vehicle. Defendant followed them over to the vehicle with " slow and deliberate" steps that " did not appear to be fluid and natural" and, upon reaching the vehicle, he kept touching it with his hand. Braun testified in response to the prosecutor's questions about defendant's movement:

" I just remember it was very unusual. It wasn't like he was dragging his hand down the length of the vehicle as if to orient himself with in the world. But it was just more like a motion as if to verify, 'Hey, this is ...

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