Argued and Submitted May 20, 2014.
Lincoln County Circuit Court 104651. Thomas O. Branford, Judge.
Jesse Wm. Barton argued the cause and filed the briefs for appellant.
Joanna L. Jenkins, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[270 Or.App. 51] EGAN, J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and interfering with a peace officer, ORS 162.247. He assigns error to the trial court's denial of his motion to suppress evidence, arguing that police violated his right against unreasonable search and seizure under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, when police forcibly entered his home to
seize him in the course of a DUII investigation. He also assigns error to the trial court's denial of his motion for judgment of acquittal (MJOA), arguing that his actions were passive resistance, and, therefore, do not constitute the crime of interfering with a peace officer. The state responds that police did not violate defendant's right under Article I, section 9, because the risk of losing evidence of defendant's blood-alcohol level created exigent circumstances that excused the warrant requirement of Article I, section 9. The state also contends that a rational factfinder could find that defendant's actions were not passive resistance. We hold that the trial court erred in denying defendant's motion to suppress because the officers violated defendant's rights under Article I, section 9, and that the evidence was sufficient to support a finding that defendant was not engaged in passive resistance. Accordingly, we reverse and remand defendant's conviction for DUII, and otherwise affirm.
The following facts are undisputed. Two off-duty deputy sheriffs observed a station wagon driving 25 miles per hour on a road with a posted speed of 35 miles per hour. They saw the station wagon cross the center line multiple times and noticed that it increased its speed to 55 miles per hour on a bridge and then slow back down to 25 miles per hour after crossing. One deputy noted that the driver was an older tired-looking man with droopy eyes and mouth. The deputies called the authorities to report the driver as a possible drunk driver, gave a description of the station wagon and the driver, and relayed the station wagon's license plate number. The station wagon then ran a red light, and the [270 Or.App. 52] deputy sheriffs lost track of it. Later, when he was traveling alone, one of the off-duty sheriffs spotted the same driver and station wagon, only now traveling with a woman in the passenger seat. He noticed the station wagon weave " a little bit" and again called to report the driver. That call took place around 11:01 a.m.
Between 11:15 a.m. and 11:20 a.m., Deputy Sheriff Sites, responding to the off-duty deputies' calls, arrived at the home of the registered owner of the station wagon. Sites knocked on the door, peered into the window, and saw defendant and a woman in the house. Defendant, who matched the description of the driver, opened the interior door, but left a storm door locked and closed. Sites noticed that defendant's eyes were watery and glassy, he smelled of alcohol, his facial muscles were slack, he appeared lethargic, and, when he spoke, his speech was slurred. Defendant admitted that he had been driving the station wagon. Sites asked defendant to step outside to perform field sobriety tests, and defendant replied, " I don't see why I would do that." Sites then told defendant that he was being detained on suspicion of DUII and instructed him to open the storm door. Defendant replied, " Go fuck yourself," and closed the interior door.
Sites began to knock on the door again and yelled for defendant to open the door. Defendant opened the interior door, again leaving the storm door locked and closed, and said, " Now you're getting annoying." Sites told defendant that he was under arrest and ordered him to open the storm door. Defendant told Sites to " fuck off." Sites put his hand through an open window in the locked and closed storm door--placing his hand against the interior door--and told defendant not to close the door. Defendant replied, " You'd better get more cops here," before closing the door.
Sites then immediately attempted to forcibly open the locked storm door, damaging the handle. Failing to open the door, Sites called for assistance, and continued to peer into defendant's home where he saw defendant sit down at his dining room table. Sites continued to order defendant to open the door, telling him that, if he didn't open the door, " I'd be forcing entry into his residence." Defendant closed his blinds. Concerned that defendant would attempt to leave, ...