and submitted December 16, 2015.
County Circuit Court 13CR0381; Thomas M. Hull, Judge.
B. Thompson, Assistant Attorney General, argued the cause for
appellant. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General.
E. Daniels, Deputy Public Defender, argued the cause for
respondent. With her on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge
Summary: Defendant was charged with driving a vehicle with a
suspended license, ORS 811.182, and driving under the
influence of intoxicants, ORS 813.010. Prior to trial, the
trial court granted defendant's motion to suppress
evidence. On appeal, the state challenges the trial
court's finding that defendant was stopped for the
purposes of Article I, section 9, of the Oregon Constitution,
without reasonable suspicion and argues that defendant was
not stopped at any point before the officer developed
reasonable suspicion that defendant had committed a crime.
Held: The trial court's findings describe
circumstances that, when considered in total, constitute a
stop under Article I, section 9. Notably, the officer
encountered defendant late at night, while defendant was
sitting with his girlfriend in a van parked in the driveway
of the girlfriend's home, knocked on the van window,
communicated through his questioning that he was
investigating defendant's possible involvement in a
domestic issue, asked defendant [286 Or.App. 275] to produce
identification, asked defendant's girlfriend if she would
talk with the officer outside of the van, and then stood with
the girlfriend behind the van, in position that conveyed that
defendant was not free to drive away until the officer
completed his investigation.
[286 Or.App. 276]
J. PRO TEMPORE
state appeals from a trial court order suppressing evidence
that the state obtained after an officer walked up a private
driveway late at night and questioned defendant and his
girlfriend, who were sitting in a parked van. The state
challenges the trial court's conclusion that defendant
was stopped for the purposes of Article I, section 9, of the
Oregon Constitution at any point before the officer developed
reasonable suspicion that defendant had committed a crime. We
conclude that the trial court's findings support its
conclusion that, under the totality of the circumstances,
defendant was stopped after the officer asked defendant to
produce identification, asked his girlfriend if she was all
right and if she would get out of the van, and then stood
behind the van while he questioned defendant's girlfriend
and ran a check on defendant's identification. We also
conclude that the state did not argue in the trial court that
the officer possessed reasonable suspicion of a crime at that
point and, thus, decline to reach the unpreserved argument.
Accordingly, we affirm.
review the trial court's ruling on a motion to suppress
for legal error. State v. Maciel-Figueroa, 361 Or.
163, 165-66, 289 P.3d 1121 (2017). In conducting that review,
"we are bound by the trial court's factual findings
if there is any constitutionally sufficient evidence to
support them." Id. To the extent that the trial
court did not make express findings regarding disputed facts,
we will presume that the court found the facts in a manner
consistent with its ultimate conclusion, provided the
evidence would support such findings. Id. at 166. We
describe the facts in a manner consistent with that standard
Grants Pass shortly after midnight, a call came in to
dispatch from a convenience store employee to report that a
woman who was crying and appeared to be intoxicated was seen
arguing with a man in a van. The employee described the woman
as "hysterical, " described the man and the van,
and reported that the woman had left in the van with the man
driving. Officer Lewelling, responding to [286 Or.App. 277]
the call, learned that a woman, R, was the van's
registered owner and went to her home address.
arrived at the house, which was located in a residential
neighborhood, "roughly ten minutes after the initial
call." He saw the van parked in the private driveway of
the house, with its "nose pointed towards the
garage." Lewelling, who was wearing his uniform with a
badge, parked his marked police cruiser on the street in a
way that did not block the driveway, and he did not turn on
his lights or sirens. As he approached the van on foot,
Lewelling saw that defendant was sitting in the driver's
seat of the van with the window rolled down slightly, and
that a woman, R, was sitting in the passenger seat, resting
her head on defendant's chest. There was no indication
that the two were arguing.
could smell the odor of alcohol emanating from the inside of
the van. He knocked on the drivers' side window and,
using a tone of "concern, " Lewelling asked R if
she was all right. She responded that she was, and Lewelling
noticed that she responded with slurred speech. Lewelling
then asked defendant for his name and date of birth.
Defendant handed Lewelling his Oregon ID card and, when
defendant spoke, Lewelling noticed that "[h]e also had
then asked R if she would be willing to "step out of the
vehicle and chat" with him, and she agreed. Lewelling
stood at the back of the van and "called in"
defendant's information. Defendant could hear Lewelling
speaking on "his walky talky behind the van."
Lewelling began a conversation with R behind the van and,
while the two were talking, Lewelling heard back from his
identification check and learned that defendant had a
"felony level suspension" of his driver's
license. After he concluded his interview with R, including
questions about whether defendant had been driving the van,
Lewelling went to the driver's side door to [286 Or.App.
278] contact defendant about the crime of driving a vehicle
with a suspended license (DWS), ORS 811.182. Through that
additional contact with defendant, Lewelling developed
probable cause to arrest defendant for driving under the
influence of intoxicants (DUII), ORS 813.010. The state
charged defendant with both crimes.
to trial, defendant filed a motion to suppress.
Defendant's initial motion contended that Lewelling
arrested him without probable cause. However, during the
motion hearing, defendant's attorney became aware of
facts that prompted her to ask the trial court for permission
to expand the scope of her motion to include an argument that
defendant had been stopped without reasonable suspicion at
the point that Lewelling called in defendant's name and
date of birth to dispatch. The court allowed defense counsel
to proceed on this expanded basis and also allowed the
parties to submit additional written arguments.
considering the parties' post-hearing arguments, in which
defendant urged the court to conclude that defendant was
stopped under the totality of the circumstances, including
Lewelling running "defendant's information through
dispatch, " the trial court granted defendant's
motion. The court emphasized that Lewelling was questioning
defendant's passenger, R, "behind the vehicle,
" and found, "at least during the time the
passenger was outside the vehicle that the defendant was not
free to start the vehicle and leave the driveway if for
nothing else the safety of the passenger." Ultimately,
the court concluded that, "under the totality of the
circumstances, " a reasonable person in defendant's
position would believe he was being restrained. The court
"suppress[ed] the evidence obtained against the
defendant as a result of the stop without reasonable
appeal, the state asserts that the trial court "appears
to have determined that Lewelling seized defendant for
Article I, section 9 purposes at the point he stood with [R]
behind the van." The state argues that defendant [286
Or.App. 279] was not stopped at that point and,
alternatively, that a stop at that point was supported by
reasonable suspicion that defendant had committed the crime
of DUII. Defendant disagrees with both arguments. He also
contends that the state did not preserve its alternative
argument that Lewelling possessed reasonable suspicion of
DUII at a point prior to when he recontacted defendant about
driving while suspended.
I, section 9, of the Oregon Constitution protects against
unreasonable searches and seizures. A person is
"seized" for purposes of that constitutional
provision: "(a) if a law enforcement officer
intentionally and significantly restricts, interferes with,
or otherwise deprives an individual of that individual's
liberty or freedom of movement; or (b) if a reasonable person
under the totality of the circumstances would
believe that (a) above has occurred." State v.
Ashbaugh, 349 Or. 297, 316, 244 P.3d 360 (2010)
(emphasis in original). However, "'[t]here
potentially is an infinite variety of encounters between law
enforcement officers and citizens [, ]' and '[n]ot
every such encounter constitutes a 'seizure' of the
citizen' for constitutional purposes." State v.
Fair, 353 Or. 588, 593, 302 P.3d 417 (2013) (quoting
State v. Holmes, 311 Or. 400, 406-07, 813 P.2d 28
(1991)). "At one end of the continuum are mere
encounters for which no justification is required, "
while at the other end "are arrests, which involve
protracted custodial restraint and require probable
cause." Id. In the area between those two ends
of the continuum lie "temporary detentions for
investigatory purposes, often termed 'stops, '"
which are seizures for constitutional purposes and generally
require reasonable suspicion. Id.
General Principles Regarding the Line Between an Encounter
and a Seizure
"the line between a mere encounter and something that
rises to the level of a seizure does not lend itself to easy
demarcation." State v. Backstrand, 354 Or. 392,
399, 313 P.3d 1084 (2013) (internal quotation marks omitted).
Nevertheless, a series of Supreme Court cases in recent years
have sought to provide some definition to the line, and a few
guiding principles have evolved [286 Or.App. 280] from those
cases. The first principle is that any inquiry into whether a
particular encounter constitutes a seizure is necessarily
"fact-specific and requires an examination of the
totality of the circumstances involved." Id.
The question for the court "is whether the circumstances
as a whole transformed the encounter into a seizure, "
even if the circumstances, individually would not create a
seizure. State v. Anderson, 354 Or. 440, 453, 313
P.3d 1113 (2013); see also State v. Charles, 263
Or.App. 578, 585, 331 P.3d 1012 (2014) (The "question is
whether all of the officer's actions combine to form a
whole greater than the sum of its parts.").
principle is that "the constitutional concern is with
police-imposed restraints on citizen liberty, not with
limiting contacts between police and citizens."
Backstrand, 354 Or at 400. Police officers are
"'free to approach persons on the street or in
public places, seek their cooperation or assistance, request
or impart information, or question them without being called
upon to articulate a certain level of suspicion in
justification if a particular encounter proves
fruitful.'" Id. (quoting Holmes, 311 Or at
410). In addition, an officer may request a person's
identification and may retain the identification long enough
to check its validity without those actions, in and of
themselves, creating a coercive restraint on the person's
libertyId. at 412-13. As the court
reasoned in Backstrand, "[a] person who turns
over identification to a law enforcement officer reasonably
would expect that ...