Submitted March 6, 2017
County Circuit Court C151620CR; Donald R. Letourneau, Judge.
Olson, Megan E. McVicar, and Hoevet Olson Howes, PC, fled the
briefs for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Joanna L. Jenkins, Assistant Attorney General,
fled the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendant appeals from a judgment of conviction for
unlawful possession of a controlled substance, ORS
475.752(3), and unlawful possession of a firearm, ORS
166.250. Defendant argues that the trial court erred when it
failed to grant her motion to suppress evidence found when
deputies stopped and searched her based on their suspicion
that she had violated a diversion agreement that she had
entered into following a charge for driving under the
influence of alcohol (DUII). In response, the state argues
that the officers had the implied statutory authority to stop
defendant based on reasonable suspicion that she was
violating that agreement. Held: The trial court
erred. The state's authority over individuals in DUII
diversion programs is to monitor and report to the court. ORS
813.260(2). While an officer may stop someone based on
reasonable suspicion that that person is committing an
arrestable offense, the authority to monitor and report is
not equivalent to the authority to arrest. Thus, ORS
813.260(2) does not implicitly permit officers to stop
individuals based on a reasonable suspicion of a violation of
a DUII diversion agreement.
Or. 841] Defendant appeals her convictions for unlawful
possession of a Schedule II controlled substance, ORS 475.752
(3)(b), and unlawful possession of a firearm, ORS 166.250.
Defendant assigns error to the trial court's denial of
her motion to suppress. She contends that the evidence
discovered by Washington County deputies after she was
stopped by a probation officer should have been suppressed
pursuant to Article I, section 9, of the Oregon Constitution
and the Fourth Amendment to the United States Constitution.
She maintains that the deputies' reasonable suspicion
that she had violated her diversion agreement, which she
entered into following a charge for driving under the
influence of intoxicants (DUII), did not provide a lawful
basis for stopping her. We conclude that the trial court
erred when it concluded that a reasonable suspicion that
defendant had violated her diversion agreement provided a
lawful basis on which to stop her. Accordingly, the stop was
unlawful, and defendant's motion to suppress the evidence
discovered as a result of the stop should have been granted.
Therefore, we reverse and remand.
reviewing a denial of a motion to suppress, "we are
bound by the trial court's findings of historical fact
that are supported by the evidence in the record."
State v. Holdorf. 355 Or. 812, 814, 333 P.3d 982
(2014). "[O]ur role is to decide whether the trial court
correctly applied the law to those historical facts."
Id. We state the facts consistently with that
events at issue occurred at a DUII victim-impact panel that
defendant was attending as a requirement of her DUII
diversion agreement. After the program started, Deanna
Kemper, a Washington County community corrections probation
officer, acting in this instance as the panel coordinator,
noticed that defendant was fidgeting and swaying repeatedly.
Another attendee complained to Kemper that defendant was
using a tennis ball to rub her legs and her upper thighs in a
way that was "highly distracting." Kemper became
concerned that defendant "was distracting to others, was
under the influence of drugs, and was unable to focus on the
Or. 842] Kemper decided to investigate what the problem was.
Kemper asked two reserve deputies, who were providing general
security, to ask defendant to leave the auditorium with them
so that Kemper could talk to defendant. "If defendant
could be returned to the auditorium without disrupting
others, it was [Kemper's] plan to have defendant return
in order that she could complete her Diversion
obligation." When Deputy Chesler approached defendant,
he noticed that she was "sweating profusely, more so
than would be explained by the hot auditorium
willingly followed the deputies out of the auditorium into
the main hallway. Both Kemper and Chesler observed that
"defendant noticeably swayed as she walked, " to
the point that she needed to be physically guided out of the
auditorium. Once in the hallway, Kemper directed defendant to
sit in a chair, which was backed up against a wall. Kemper
blocked defendant's exit from the building. Kemper
confronted defendant about her concerns that defendant was
under the influence of illegal drugs. Defendant eventually
admitted that she had taken two Adderall earlier that day and
that she did not have a prescription for them. As the
interaction continued, Chesler suspected that defendant had
illegal drugs in her purse and asked if he could look inside
it; defendant gave him permission to do so. Among other
items, Chesler found a loaded .38 Smith and Wesson revolver,
an expired concealed weapon permit, and some Adderall pills.
Defendant was arrested and charged with possession of a
weapon in a public building, ORS 166.370, unlawful possession
of a Schedule II controlled substance, ORS 475.752 (3)(b),
and unlawful possession of a firearm, ORS 166.250.
her trial, defendant filed a motion to suppress the evidence
that the deputies found in her purse on the basis that the
deputies had seized her and searched her handbag unlawfully.
The state argued that Kemper and the deputies had a lawful
basis to stop defendant based on a reasonable suspicion that
she was in violation of the conditions of her diversion
agreement. The state relied on State v. Hiner. 240
Or.App. 175, 246 P.3d 35 (2010), in which we held that the
authority to arrest a person based on probable cause that the
person has committed a probation violation [287 Or. 843]
implies the authority to stop a person based on reasonable
suspicion of a probation violation. Defendant argued that a
deputy's reasonable suspicion of a person's violation
of a diversion agreement is not a constitutional basis for a
stop. The trial court concluded that defendant was stopped
"when Ms. Kemper blocked the defendant's egress from
the building." After that ruling, the court allowed the
parties time to prepare and submit written arguments to
address whether there was sufficient evidence to support a
reasonable suspicion for the basis of the stop-that defendant
had violated her diversion requirements.
court ultimately concluded that, based on the totality of the
circumstances, Kemper had reasonable suspicion sufficient to
stop defendant when Kemper blocked defendant's egress
from the building. The court stated that
"defendant's inability to walk from her chair to the
hallway without physical guidance and without wavering"
was "especially probative" and concluded that
reasonable suspicion existed that "defendant was using *
* * either illegal controlled substances or legal controlled
substances in a manner that was not prescribed." Because
such use of controlled ...