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State v. Dendy

Court of Appeals of Oregon

October 24, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
TYLER GENE DENDY, Defendant-Appellant.

          Argued and submitted April 24, 2018

          Marion County Circuit Court 15CR38740 J. Channing Bennett, Judge.

          Brett 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 Services.

          E. 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.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant 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 DUII.

         Reversed and remanded.

         [294 Or.App. 540] AOYAGI, J.

         The 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 remand.

         We 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.

         On the 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 something."

         Corporal 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.

         Gamble 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 ...


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