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State v. Kreis

Supreme Court of Oregon, En Banc

November 7, 2019

STATE OF OREGON, Respondent on Review,
v.
ERIC LAWRENCE KREIS, Petitioner on Review.

          Argued and Submitted June 6, 2019

          On review from the Court of Appeals. (M-808542-2) (CA A157224) [*]

          Marc D. Brown, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

          Christopher A. Perdue, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Balmer, J., dissented and fled an opinion, in which Garrett, J., joined.

         [365 Or. 660] Case Summary:

         Defendant, who was charged with interfering with a peace officer for refusing to obey a "lawful order" under ORS 162.247(1)(b), moved for a judgment of acquittal, arguing that the officer's order, which directed defendant to turn around so that he could be handcuffed, was not a "lawful order" because it was issued in violation of Article I, section 9, of the Oregon Constitution. The trial court denied defendant's motion, a jury convicted defendant of interfering with a peace officer, and the Court of Appeals affirmed. Held: An order that effects a seizure is not a "lawful order" for purposes of ORS 162.247(1)(b) if it is issued in violation of Article I, section 9, and in this case, the officer's order was issued in violation of Article I, section 9, because the officer lacked reasonable suspicion that defendant was committing or about to commit a crime, and the officer's safety concerns did not provide an independent constitutional justification for the order.

         The decision of the Court of Appeals is reversed. The judgment of the Beaverton Municipal Court is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

         [365 Or. 661]WALTERS, C.J.

         In this criminal case, an officer seized defendant without a constitutional basis for doing so, and, to effectuate that unconstitutional stop, ordered him to turn and be handcuffed. Defendant refused and was convicted, under ORS 162.247(1)(b), of interfering with a peace officer for refusing to obey a "lawful order." For the reasons that follow, we conclude that the officer's order was not a "lawful order" as that term is used in ORS 162.247(1)(b) and reverse defendant's conviction.

         I. BACKGROUND

         Because defendant was convicted of the offense of interfering with a peace officer, we state the facts that gave rise to that charge in the light most favorable to the state. See State v. Lupoli, 348 Or. 346, 366, 234 P.3d 117 (2010) (stating standard). Two officers, Crino and Mendez, were in their patrol car when they saw defendant in a restaurant parking lot around midnight. The restaurant had been closed for about 20 minutes, and the parking lot, which provided parking for the restaurant and a nearby golf course, had recently been the site of several thefts. Defendant was standing "near" one of the approximately five cars in the lot, and the officers suspected that defendant might be trying to break into that car or might be attempting to commit DUII. To investigate, Crino ran the car's license plate and noted that defendant matched the description of the car's registered owner. However, believing that the descriptions of registered owners are not always accurate, Crino remained unsure whether defendant owned the car. While Crino was running the car's plates, Mendez, an officer-in-training, approached defendant and initiated a conversation. Defendant did not provide any information in response to Mendez's questions; instead, he left the parking lot and walked toward a paved pathway leading to the back of the restaurant.

         Crino and Mendez followed defendant and caught up with him as he stood on the restaurant's back patio near the restaurant's back door. Crino asked defendant for his name, whether the car that he had been standing near was his, and whether he was a restaurant employee. Defendant [365 Or. 662] did not respond, and when he took a few steps away from the officers, Crino informed him that he was not free to leave until the investigation was complete. Defendant responded that he did not "have to talk to" Crino and that he "was not answering any of [his] questions." To Crino, defendant appeared angry and exhibited signs of intoxication. Considering Mendez's lack of experience, Crino called for assistance.

         When two additional officers arrived, Crino explained to defendant that Crino needed to learn defendant's identity, why he was at the restaurant, and whether he was a restaurant employee. Defendant's brow furrowed, he balled his hands into fists, took a bladed stance, and began shifting his weight back and forth. Crino noticed that defendant was looking at him and the other officers, while also looking beyond them as if he were looking for an escape route. Crino told defendant that, if defendant did not provide the requested information, he would be arrested. In response, defendant stated through clenched teeth, "I am not going to be arrested." At that point, Crino explained to defendant that he had concern for his safety and ordered defendant to turn around, face the building, and put his hands behind his back so that he could be handcuffed. Defendant refused. Crino gave the order a second time, again explaining to defendant that he was going to be handcuffed for safety reasons. Defendant said, "No," and refused to turn around. Crino told defendant that he was under arrest "for interfering." Defendant physically resisted the officers' attempts to subdue him, and the officers took him to the ground and handcuffed him.

         The state charged defendant with interfering with a peace officer under ORS 162.247(1)(b) and with resisting arrest. The case went to trial before a jury. After the state presented its case, defendant moved for judgment of acquittal on the interfering charge. Defendant argued that Crino did not have reasonable suspicion that defendant had committed, or was about to commit, a criminal offense, and consequently, that neither his stop of defendant nor his order that defendant turn around to be handcuffed were lawful. The state responded with two arguments. First, it asserted that Crino had reasonable suspicion that defendant had [365 Or. 663] committed or was about to commit DUII, attempted DUII, or theft. Second, and alternatively, the state asserted that, even if Crino's stop was not lawful, his order that defendant turn and be handcuffed was justified by reasonable officer-safety concerns. The trial court denied defendant's motion. The jury found defendant guilty on the interfering charge and acquitted defendant on the resisting charge, and the court entered judgment accordingly.[1]

         Defendant appealed, [2] assigning error to the trial court's denial of his motion for judgment of acquittal. Defendant asserted that Crino had stopped him in violation of Article I, section 9, and that Crino's subsequent order that defendant to turn and be handcuffed also was unlawful. Defendant argued that, under this court's decision in State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987), officer-safety concerns can justify an otherwise unconstitutional search or seizure only when effected during a "lawful encounter."

         The Court of Appeals disagreed, relying on its prior cases involving ORS 162.217(1)(b) and holding that, for purposes of that statute, the lawfulness of an encounter does not affect the lawfulness of a subsequent order. State v. Kreis, 294 Or.App. 554, 559, 432 P.3d 245 (2018). The court acknowledged the tension between its cases and Bates, which involved a motion to supress evidence and not a conviction for interfering with a peace officer, but explained that, as presented, the court was not in a position to resolve that tension: Defendant had not argued that the Court of Appeals cases involving the interfering statute were irreconcilable with Bates or that the Court of Appeals must overrule those cases. Id. at 561-62. Applying its rule from those cases, the court reasoned that the question before it was [365 Or. 664] not the lawfulness of the initial stop but of the subsequent order, and that, considered independently, orders issued to protect officer safety were lawful orders. Because defendant did not challenge the legitimacy of Crino's officer-safety concerns, the Court of Appeals affirmed the trial court's denial of defendant's motion for judgment acquittal. Id. Defendant sought, and we allowed, review.

         II. ANALYSIS

         In this court, defendant contends, as he did below, that the trial court erred in denying his motion for judgment of acquittal because Crino's order that he turn and be handcuffed was not a "lawful order," as that term is used in ORS 162.247(1)(b). That statute provides:

"(1) A person commits the crime of interfering with a peace officer or parole and probation officer if the person, knowing that another person is a peace officer or a parole and probation officer * * *:
“*****
"(b) Refuses to obey a lawful order by the peace officer or parole and probation officer."

         The parties recognize that this court previously has interpreted the term "lawful order" and agree that the definition we provided frames the issue before us: A "lawful order" is an order that is "authorized by, and is not contrary to, substantive law." See State v. Ausmus, 336 Or. 493, 504, 85 P.3d 864 (2003) (so defining "lawful order" in statute proscribing refusal "to comply with a lawful order of the police to disperse"); see also State v. Illig-Renn, 341 Or. 228, 238, 142 P.3d 62 (2006) (reasoning that "lawful" in the interfering statute does not include an order that is "inconsistent with the substantive law").

         Drawing from that definition, defendant contends that an order that effects a seizure is authorized by, and not contrary to, substantive law only when issued in compliance with Article I, section 9. According to defendant, Crino did not have the reasonable suspicion constitutionally necessary to stop him, and Crino's officer-safety concerns could not convert an otherwise unlawful order into a lawful one, because, according to defendant, the officer-safety [365 Or. 665] doctrine applies only during a lawful police encounter. The state responds that officers have broad authority to issue orders and that their orders are contrary to substantive law only when they direct a person to commit a crime or to refrain from statutorily or constitutionally protected activity. According to the state, Crino's stop was justified by reasonable suspicion, and, even if it was not, Crino's subsequent order was lawful: Crino did not direct defendant to commit a crime or to refrain from constitutionally protected activity. Alternatively, the state argues that Crino's order was independently justified by his officer-safety concerns.

         A. Crino's initial stop was not justified by reasonable suspicion.

         As framed by the parties, the first question we must answer is whether Crino's initial stop was justified by reasonable suspicion of criminal activity. An officer has reasonable suspicion when the officer "can point to specific and articulable facts that give rise to a reasonable inference that the defendant committed or was about to commit a specific crime or type of crime." State v. Maciel-Figueroa, 361 Or. 163, 165, 389 P.3d 1121 (2017). The officer must have a subjective belief that the person stopped has committed, or is about to commit, a crime, and that belief must be objectively reasonable under the totality of the circumstances. State v. Belt, 325 Or. 6, 11, 932 P.2d 1177 (1977). An officer's suspicion must be particularized to the individual based on the individual's own conduct. State v. Miglavs, 337 Or. 1, 12-13, 90 P.3d 607 (2004). Reasonable suspicion requires less than probable cause but more than mere speculation. See State v. Holdorf, 355 Or. 812, 822-23, 333 P.3d 982 (2014) (articulating standard).

         In this court, the state argues that Crino had reasonable suspicion that defendant was committing criminal trespass, or had committed or was about to commit DUII or attempted DUII.[3] Given that the state makes the former argument for the first time in this court, we discuss only the [365 Or. 666] state's latter argument.[4] And, for the reasons that follow, we conclude that the facts in the record are insufficient to support a finding that Crino had an objectively reasonable belief that defendant had committed or was about to commit DUII or attempted DUII.[5]

         A person "commits the offense of [DUII] if the person drives a vehicle while the person: (a) [h]as a 0.08 percent or more [BAC] ***; [or] (b) is under the influence of intoxicating liquor." ORS 813.010(1). To constitute an attempt, a person must "intentionally engage[] in conduct which constitutes a substantial step toward commission of the crime." ORS 161.405(1). There is evidence in the record that when Crino approached defendant, defendant exhibited signs of intoxication, and defendant does not dispute that Crino had a reasonable belief that defendant was intoxicated. Instead, defendant argues that the record does not indicate that defendant had taken a substantial step toward driving or was about to drive a vehicle.

         The state argues that Crino had reasonable suspicion that defendant was about to drive or had taken a substantial step toward driving, relying on the fact that Crino saw defendant standing "near" a car in the parking lot of a closed restaurant after midnight. The state adds that there was evidence that defendant matched the description of the car's owner, that the parking lot was located a distance away from the road, and that there were few places within walking distance. Therefore, according to the state, Crino reasonably could conclude, based on his training and [365 Or. 667] experience, that defendant had taken a substantial step toward driving or was about to do so.

         We disagree. Although "officers reasonably may draw inferences about human behavior from their training and experience," Miglavs, 337 Or at 13, an officer's "hunch" based on training and experience is, by itself, insufficient to form a basis for reasonable suspicion, see State v. Valdez, 277 Or. 621, 628, 561 P.2d 1006 (1977) ("[I]nstinct and experience cannot * * * form the entire basis for 'reasonable suspicion.'"). An officer's belief is objectively reasonable only if it is based the individual's own conduct. Miglavs, 337 Or at 12. Here, Crino's knowledge about defendant's conduct was minimal: Although Crino testified that he saw defendant standing "near" a parked car, Crino did not know that the car belonged to defendant and did not see defendant at the door of the car or holding keys. That knowledge was insufficient to give rise to reasonable suspicion that, at the time that defendant was standing "near" the car in the parking lot, defendant had taken a substantial step toward driving. It also was insufficient to give rise to reasonable suspicion that, at the time that defendant stood at the back door of the restaurant, he was about to commit DUII. By that time, defendant had walked away from the parking lot where the car was located.[6] Perhaps defendant intended to return to the parking lot and drive away while Crino watched, but, absent some indication that defendant was about to do so, Crino's suspicion that defendant was about to commit DUII was not objectively reasonable. We conclude that Crino's stop of defendant was not supported by reasonable suspicion of attempted DUII or DUII, and we turn to the more difficult question of whether Crino's order to effectuate that stop-his order that defendant turn and be handcuffed- was, nevertheless, a "lawful order" under ORS 162.247(1)(b).

         B. Crino's order was not a "lawful order."

         As discussed, under ORS 162.247(1)(b), a "lawful order" is an order that is authorized by, and is not contrary [365 Or. 668] to, substantive law. No party argues that the legislature intended any other meaning of that term; thus, our inquiry is not one of statutory construction, but is one of substantive law: Was Crino's order that defendant turn and be handcuffed an order that was authorized by, and not contrary to, substantive law? To answer that question, a court must consider the authority granted, and the restrictions imposed, by the substantive law, and that is now our task. In undertaking it, we engage, as the legislature intended, in a judicial analysis of the substantive law to determine whether Crino's order was "lawful."[7]

         The state contends that officers have broad authority to issue orders and that an order is contrary to substantive law only if it directs a person to commit a crime or to refrain from statutorily or constitutionally protected activity. Crino's order, the state argues, was not of that ilk: Crino did not direct defendant to commit a crime, and defendant had no statutory or constitutional right to ball his fists, take a bladed stance, and place Crino in apprehension of injury. Consequently, the state argues, Crino's order was not contrary to substantive law. Alternatively, the state argues that Crino's order was independently justified by his officer-safety concerns.[8]

         We agree with the state's opening proposition that peace officers have broad authority to investigate crime and [365 Or. 669] protect the public.[9] However, we disagree with the state's argument that Crino's order directing defendant to turn and be handcuffed was not contrary to substantive law. First, we reject the idea that an order is contrary to substantive law only when an officer directs a person to commit a crime or refrain from protected activity. In Illig-Renn, we considered the constitutionality of the interfering statute, and we explained that the word "lawful" removes from the statute's sweep "any refusal to follow an order that is inconsistent with the substantive law, including constitutional provisions." 341 Or at 238. The constitutional provisions at issue in Illig-Renn were provisions guaranteeing the right of free expression and assembly. Id. However, as the state acknowledges, the same principle applies when an individual fails to follow an order that is inconsistent with other constitutional provisions, including the provision that protects the right to be free from unreasonable search and seizure. Accordingly, an order that is not consistent with Article I, section 9, or that is issued in violation of that provision, is not a "lawful order" for purposes of ORS 162.247 (D(b).[10]

         Second, when we analyze Crino's order to turn and be handcuffed, we conclude that it is not consistent with Article I, section 9. In conducting that analysis, we consider the state's two distinct arguments: (1) that, when considered independently, and without regard to the legality of Crino's initial seizure, Crino's order to turn and be handcuffed was "lawful by its terms" because it was not an order to refrain from constitutionally protected activity; and (2) that, ...


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