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State v. Chambers

Court of Appeals of Oregon

September 20, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ELISE FERN CHAMBERS, Defendant-Appellant.

          Submitted March 6, 2017

         Washington County Circuit Court C151620CR; Donald R. Letourneau, Judge.

          Per C. Olson, Megan E. McVicar, and Hoevet Olson Howes, PC, fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case 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.

          SHORR, JUDGE.

         [287 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.

         When 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 standard.

         The 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 presentations."

         [287 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 conditions."

         Defendant 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.

         Before 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.

         The 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 ...


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