City of Portland v. Tuttle

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: JONES
• Citation: City of Portland v. Tuttle, 668 P.2d 1197, 295 Or. 524 (Or. 1983)
• Decision Date: 16 August 1983
• Docket Number: No. DA,DA
• Parties: CITY OF PORTLAND, Respondent on review, v. Erika TUTTLE, Petitioner on review. TC217706-8108, CA A24555; SC 29475.

Page 1197

668 P.2d 1197

295 Or. 524

CITY OF PORTLAND, Respondent on review, v. Erika TUTTLE, Petitioner on review.

TC No. DA 217706-8108, CA A24555; SC 29475.

Supreme Court of Oregon In Banc.

Argued and Submitted July 6, 1983.

Decided Aug. 16, 1983.

Richard L. Lonergan, Portland, argued the cause for petitioner on review. With him on the petition were Howard R. Lonergan and Clint A. Lonergan, Portland.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

JONES, Justice.

Defendant was charged with violating Portland City Code Section 14.08.140(b), "Interfering with a police officer." The trial court suppressed evidence on the ground that the police entry into the defendant's home was illegal but overruled defendant's demurrer to the complaint ruling that it sufficiently pled an offense. The trial court also denied the defendant's motion for a jury trial ruling that the offense was a violation and not a crime. The City appealed the suppression ruling and the defendant cross-appealed the ruling on the demurrer and the denial of a jury trial. The Court of Appeals reversed the order suppressing the evidence and remanded for further proceedings in light of its opinion, but the Court of Appeals affirmed the trial court's order overruling the demurrer and denial of a jury trial. 62 Or.App. 62, 659 P.2d 1010. We allowed review solely to determine if a violation of this code section constitutes a crime requiring the city to prove the defendant acted with a culpable mental state and thereby triggering the defendant's right to a jury trial under Oregon Constitution, Article I, Section 11, and ORS 136.001.

Portland City Code § 14.08.140(b) reads:

"It is unlawful for any person to refuse to leave the area of an arrest, custody or stop, or, having left that area, to reenter it, after being directed to leave that area by an individual whom the person knows to be a police officer." ¹

Portland City Code § 14.08.140(a) provides the following definitions:

"For the purpose of this section, the following definitions shall apply:

(1) 'Arrest' means to place a person under actual or constructive restraint for the purpose of charging him with an offense.

(2) 'Custody' means to place a person under actual or constructive restraint pursuant to a court order or for other lawful purpose.

(3) 'Police officer' means any sworn member of the Bureau of Police.

(4) 'Stop' means a temporary restraint of a person's liberty, by a police officer lawfully present in any place, (i) when such officer reasonably suspects that such person is committing, or has committed, a criminal offense, or (ii) when such officer reasonably believes that such person is in need of attention pursuant to ORS 426.215 or ORS 426.460, or (iii) when such officer reasonably believes that such person is the subject of service of a valid court order.

(5) 'To leave the area of an arrest, custody or stop' means to physically move to a location not less than ten (10) feet extending in a radius from where a police officer is engaged in effecting an arrest, taking a person into custody, or stopping a person; the radius may be extended beyond ten (10) feet when a police officer reasonably believes that such extension is necessary because there exists a substantial risk of physical injury to any person."

Defendant demurred to the charging instrument complaining that it "does not state facts sufficient to constitute a crime." Alternatively, she contended that if the offense charged does constitute a crime, the City must prove the defendant acted with a culpable mental state and also provide her with a jury trial upon request. The City responded to the demurrer by "stipulating" ² that the defendant was charged only with a violation and not a crime and on this basis the trial court overruled the defendant's demurrer and denied her a jury trial. The Court of Appeals affirmed the trial court on this issue.

The relevant facts are as follows: A Portland city police officer was dispatched to a disturbance at a Portland intersection. Witnesses at the scene reported that a car had been speeding in the area and that an altercation between the driver of the car and two other persons had occurred. A gold Mustang vehicle appeared on the scene and was pointed out to the officer as the suspect car. The suspect car abruptly stopped, backed up, reversed direction, and accelerated away from the scene with squealing tires. In the officer's view, this constituted driving in a "reckless manner" and he followed the car and saw it enter a private driveway.

The officer testified that he saw the driver, later identified as the defendant's son, get out of the car in the driveway and run down the driveway and around the corner of the house. Defendant's son failed to heed the officer's call to stop and the officer heard a door open and close and concluded that the defendant's son had entered the residence. The trial court made findings of fact as follows:

"1) Ms. Tuttle is the mother of John Mongeon and was a resident of the home and was at home when the police entered on August 1, 1981.

"2) The officer entered the home without a warrant and the burden of justifying the entry is on the State.

"3) Without deciding the issues of fact raised by conflicting accounts of the witnesses, the officer had probable cause to cite, at most, for careless driving, a Class B traffic infraction committed in his presence.

"4) The officer was never endangered or threatened by John Mongeon.

"5) At most, Mongeon fled after parking his car in his driveway, disregarding the officer's command to stop.

"6) The officer immediately entered the house without knocking or in any way attempting to gain permission to enter the home.

"7) At the time of the entry, the officer knew the name of the registered owner of the vehicle and knew that the owner lived at that very address and had seen the driver sufficiently well to identify him in court, on the record.

"8) The officer searched the dwelling for two to four minutes until he found Mongeon. During this time, Tuttle was following the officers from room-to-room yelling at them to get out of her house."

In response to the conduct described in finding of fact No. 8 above, the officer, who had been joined by a second officer, arrested the defendant in her own home ³ charging her with interfering with the police, the allegation at issue here. ⁴

DOES PORTLAND CITY CODE § 14.08.140(b) REQUIRE THE CITY TO PROVE A CULPABLE MENTAL STATE?

A close reading of the ordinance reveals that the following elements must be proved in order for the City to obtain a conviction: (1) Any person (2) who unlawfully refuses (3) to leave the area of an arrest, custody or stop, or (4) having left that area, reenters it, (5) after being directed to leave that area (6) by an individual whom the person knows to be a "sworn member of the Bureau of Police."

The penalty for a violation of Portland City Code § 14.08.140(b) is found in § 14.08.020:

"Violation of any provision of this code is punishable, upon conviction, by a fine of not more than five hundred dollars, or by imprisonment not exceeding six months, or both. However, no greater penalty shall be imposed than the penalty prescribed by Oregon statute for the same act or omission." ⁵

The defendant has argued that the provisions of ORS 161.115(2) ⁶ should be applied to interpret the Portland City Council's intent in enacting Portland City Code § 14.08.140. We have grave concerns whether the statutory scheme codified at ORS 161.085 through 161.175 and entitled "Criminal Liability" applies to municipal ordinances. ⁷ However, we save the resolution of that question for another day as we find it only necessary to read the complaint in conjunction with the ordinance purportedly violated by the defendant to decide the issue in this case.

The complaint reads, in relevant part, that the defendant "did unlawfully refuse to leave the area of an arrest and custody after being directed to leave the area by an individual whom the defendant knew to be a police officer."

The culpable mental state of "knowledge" ⁸ is required by the language of the ordinance and explicit in the complaint. The defendant's demurrer was properly overruled by the trial judge because the complaint sufficiently pled a crime. ⁹

In order for the defendant to "unlawfully refuse" to heed the order of a police officer, the defendant must knowingly refuse to obey the lawful order of the officer. Also explicit in the culpable mental state of "knowledge" is that the defendant knew that the order was being conveyed by a "sworn member of the Bureau of Police," Portland City Code § 14.08.140(a)(3). Said in shorthand fashion, the defendant must knowingly refuse to obey a person known to be a Portland police officer under certain described circumstances. If, for example, the defendant knowingly refused to obey the instructions of an undercover Portland police officer whom the defendant did not know to be a police officer, there would be no violation of this ordinance. Also, if the defendant knowingly refused to obey the command of a Multnomah County Deputy Sheriff making an arrest in the City of Portland, there would be no violation of this ordinance as one element of knowledge on the part of the defendant must be that the defendant is refusing to obey the command of a "sworn member of the Bureau of Police." ¹⁰ Consequently, the culpable mental states of "knowingly refused" and "knew to be a sworn member of the Bureau of Police" must be proved by the City in order to find the defendant guilty. Compare, State v. Emmich, 39 Or.App. 769, 593 P.2d 1281 (1979) (no culpable mental state was described in the statute and failure to prove a culpable mental state could result in only a conviction for a violation).

As we said in Brown v. Multnomah County Dist. Ct., 280 Or. 95, 103, 570 P.2d 52 (1977...