and submitted April 24, 2018
County Circuit Court 15CR38740 J. Channing Bennett, Judge.
J. Allin, Deputy Public Defender, argued the cause for
appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Nani Apo, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
appeals a judgment of conviction for several drug crimes,
assigning error to the trial court's denial of his motion
to suppress. A woman called the police to report that a man
had been parked in front of her house for two hours and that
there were indications that he was "on something."
Two officers arrived and stopped defendant, who was legally
parked on the street, by blocking in his car so that he would
not be able to leave. The stop led to the seizure of drugs
and other evidence from defendant's car and person.
Before trial, defendant moved to suppress the evidence on the
basis that the officers lacked reasonable suspicion for the
stop. The state countered that the officers had reasonable
suspicion that defendant had committed or was about to commit
driving under the influence of intoxicants (DUII). The trial
court agreed with the state and denied defendant's
motion. Held: Whether reasonable suspicion existed
for a stop must be determined based on the information known
to the officers at the time of the stop. When the officers
stopped defendant by blocking in his car, they did not have
adequate information to give rise to reasonable suspicion of
Or.App. 540] AOYAGI, J.
police stopped defendant on suspicion of driving under the
influence of intoxicants (DUII). In the course of the stop,
defendant made incriminating statements, which led to his
arrest and to the discovery of drugs and other evidence in
his vehicle. Defendant was charged by indictment with
delivery of methamphetamine, ORS 475.890, possession of
methamphetamine, ORS 475.894, and possession of heroin, ORS
475.854. Before trial, he moved to suppress the evidence as
the product of an unlawful stop. The state opposed the
motion, conceding that defendant was stopped but arguing that
the police officers had reasonable suspicion of DUII to
justify the stop. The trial court denied the motion to
suppress, and defendant was convicted on all three counts.
Defendant appeals the resulting judgment, assigning error to
the denial of his motion to suppress. We agree with defendant
that the officers did not have reasonable suspicion at the
time that they stopped him. Accordingly, we reverse and
review a trial court's denial of a motion to suppress for
legal error. State v. Ehly, 317 Or. 66, 74-75, 854
P.2d 421 (1993). We are bound by the trial court's
findings of historical fact that are supported by evidence in
the record. State v. Holdorf, 355 Or. 812, 814, 333
P.3d 982 (2014). If the trial court does "not make
findings on all pertinent historical facts, and there is
evidence from which those facts could be decided more than
one way, we will presume that the trial court found facts in
a manner consistent with its ultimate conclusion."
Id. (citation omitted). We state the facts in
accordance with that standard.
day in question, a woman called the police to report that a
yellow Mitsubishi had been parked in front of her house for
two hours. A man was sitting in the driver's seat and had
been intermittently sleeping, waving his arms, and talking to
himself. The caller said that her husband had talked to the
man and told her that the man "was definitely on
Gamble and Officer Hibbler arrived at the address. As they
drove up, Gamble saw a yellow Mitsubishi convertible parked
legally on the street. The top was down. [294 Or.App. 541]
Gamble could not see anyone inside the car. Based on the
information relayed by dispatch, the officers were concerned
that the driver might drive away when they approached,
thereby committing DUII in a residential neighborhood, so
they decided to "block in" the car to prevent that
possibility. Gamble parked in front of the car, while Hibbler
parked behind it, such that defendant was unable to leave.
The state concedes that defendant was stopped at that point.
walked from his patrol car to defendant's car. He
discovered that defendant was asleep and slumped over the
center console. Gamble also saw that the key was in the
ignition. Gamble reached in and removed the key. He then
awakened defendant. Defendant appeared lethargic and dazed,
his movements were exaggerated, his eyes were bulging, and he
was fidgety. Based on his training as a drug-recognition
evaluator, Gamble believed that it was "more likely than
not that [defendant] was under the influence of
something." He ran a warrants check and learned that
defendant's license was suspended. Gamble asked defendant
whether he had been driving, and defendant said that he had.
At that point, Gamble spoke with the ...