State v. Kreis

• Decision Date: 07 November 2019
• Docket Number: SC S066329
• Citation: 365 Or. 659,451 P.3d 954
• Parties: STATE of Oregon, Respondent on Review, v. Eric Lawrence KREIS, Petitioner on Review.
• Court: Oregon Supreme Court

365 Or. 659

451 P.3d 954

STATE of Oregon, Respondent on Review,

v.Eric Lawrence KREIS, Petitioner on Review.

SC S066329

Supreme Court of Oregon, En Banc.

Argued and submitted June 6, 2019.

November 7, 2019

Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed 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 filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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 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 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 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, 432 P.3d 245. Applying its rule from those cases, the court reasoned that the question before it was 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 of 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 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...