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State v. Geyer

Court of Appeals of Oregon

July 26, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
WESLEY SCOTT GEYER, Defendant-Appellant.

          Argued and submitted January 31, 2017

         Josephine County Circuit Court 14CR0405; Lindi L. Baker, Judge.

          Andy Simrin argued the cause for appellant. With him on the briefs was Andy Simrin PC.

          Benjamin Gutman, Solicitor General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Susan G. Howe, Assistant Attorney General.

          Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. Defendant was charged with DUII after police officers Wallace and Anuschat found defendant asleep at the wheel of his Jeep with an open bottle of Coors Light in the cupholder. At the time, the Jeep was stopped in the middle of the road and running. To address the situation, Wallace opened the driver's door as Anuschat opened the passenger-side door. Wallace attempted to rouse defendant, while Anuschat turned off the car. After defendant woke up, the officers, who believed that defendant had been driving under the influence, asked defendant to complete field sobriety tests and take a breath test. Defendant refused but was charged with and convicted of DUII nonetheless. On appeal, defendant contends that the trial court erred by denying his pretrial motion to suppress. Defendant asserts that, by opening his car doors, officers engaged in an unlawful warrantless search in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, such that the evidence discovered after that search had to be suppressed. The state argues that defendant did not raise that issue before the trial court in a manner that preserved it for appellate review.

         Held:

         Preservation of error depends on the circumstances of each case; the pertinent question is whether, [287 Or.App. 26] under the circumstances, the opposing party and the trial court had a fair opportunity to address the error asserted on appeal. Under the circumstances of this case, defendant failed to preserve the issue of whether the officers' opening of the car doors was an unlawful search. Although defendant raised the issue in the trial court, the manner in which he did so did not give the state a fair opportunity to address the issue and did not fairly apprise the trial court of a need for a ruling on the issue.

         Affirmed.

         [287 Or.App. 27] LAGESEN, J.

         Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. Defendant was charged with DUII after police officers Wallace and Anuschat found defendant asleep at the wheel of his Jeep with an open bottle of Coors Light in the cup-holder. At the time (around 5:30 a.m.), the Jeep was stopped in the middle of the road and running. To address the situation, Wallace opened the driver's door as Anuschat opened the passenger-side door. Wallace attempted to rouse defendant, while Anuschat turned off the car. After defendant woke up, the officers, who believed that defendant had been driving under the influence, asked defendant to complete field sobriety tests (FSTs) and take a breath test. Defendant refused, but was charged with and convicted of DUII nonetheless. On appeal, defendant contends that the trial court erred by denying his pretrial motion to suppress. Defendant asserts that, by opening his car doors, officers engaged in an unlawful warrantless search in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, such that the evidence discovered after that search had to be suppressed. We conclude that, under the circumstances of this case, defendant did not preserve the issue of whether the officers' conduct of opening the car doors was an unlawful search in violation of Article I, section 9, or the Fourth Amendment. We therefore affirm.

         For purposes of this opinion, we draw the facts from Wallace's testimony at the hearing on the motion to suppress, which the trial court credited, and from the dashboard-camera video that was introduced into evidence at defendant's criminal trial.[1] To the extent that there are [287 Or.App. 28] discrepancies between Wallace's testimony at the hearing and the video, we draw the facts from the video.[2] At 5:28 a.m., Wallace responded to a call about a running vehicle parked in the middle of the roadway. As the dashboard-camera video reveals, when Wallace arrived at the scene, defendant's Jeep was situated as described by the caller, straddling the center line of the road. When Wallace approached the car to investigate, he noticed defendant asleep in the driver's seat and "an open Coor's Light bottle in the cupholder."[3] Wallace called for back up and, about five minutes later, Anuschat arrived.

         Wallace then knocked on the Jeep's driver's side door. When defendant did not wake up, Wallace opened the door. At more or less the same time, Anuschat opened the vehicle's passenger-side door to reach in and turn the vehicle off. Wallace made a number of verbal attempts to wake defendant, but defendant was sleeping very heavily. Wallace then physically contacted defendant to wake him. All in all, it took several minutes for defendant to wake up, come to, and begin speaking with Wallace and Anuschat.

         When defendant finally woke up and began talking, his speech was slurred and he had difficulty engaging in conversation. Defendant struggled to answer questions and had difficulties presenting Wallace with his vehicle registration and driver's license. Defendant's eyes were watery, and an odor of alcohol emanated from the car. Defendant [287 Or.App. 29] admitted that he had been drinking and had trouble identifying his current location.

         Wallace believed that defendant had driven under the influence of intoxicants and asked defendant to perform FSTs. Defendant refused. Wallace then arrested defendant for DUII. By that time, Officer Aguinaga had arrived to assist, and he transported defendant to the jail, where he requested that ...


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