State v. Chambers

• Decision Date: 04 March 2009
• Docket Number: A133292.,060343216.
• Citation: 226 Or. App. 363,203 P.3d 337
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Dennis W. CHAMBERS, Defendant-Appellant.
• Court: Oregon Court of Appeals

203 P.3d 337

226 Or. App. 363

STATE of Oregon, Plaintiff-Respondent, v. Dennis W. CHAMBERS, Defendant-Appellant.

060343216.

A133292.

Court of Appeals of Oregon.

Argued and Submitted June 27, 2008.

Decided March 4, 2009.

Zachary L. Mazer, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and HUCKLEBERRY, Senior Judge.

WOLLHEIM, J.

Defendant appeals a judgment of conviction for carrying a concealed weapon. ORS 166.240(1). Defendant assigns error to the denial of his motion to suppress evidence, arguing that, as a result of an officer's unlawful seizure of defendant, that police officer obtained evidence that defendant possessed a dagger. We review the trial court's denial of a motion to suppress for errors of law, State v. Rider, 216 Or.App. 308, 310, 172 P.3d 274 (2007), rev. dismissed, 345 Or. 595, 200 P.3d 566 (2008), and reverse and remand.

The facts are largely undisputed. Where the facts are disputed, we are bound by the trial court's findings of historical fact if constitutionally sufficient evidence in the record supports those findings. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005). In the absence of express findings and where the record contains conflicting evidence, we presume that the trial court found facts consistent with its ultimate conclusion. Id.

A Portland Police Officer assigned to the Transit Police Division was riding a MAX train and noticed that defendant appeared to have "passed out * * * in between taking bites" from an open tray of takeout food on his lap. The officer was worried that defendant was intoxicated and concerned for defendant's safety because intoxicated persons often end up in the train yard at the end of the night or become victims of property crimes.

With some difficulty, the officer woke defendant up and, with the help of another transit officer, escorted defendant off the train. The officer did not suspect defendant of having committed any crime and was not intending to hold him in custody. However, the officer testified that defendant was not free to go at that time. The officer explained that he might have allowed defendant to reboard a train later, but he was first "going to see if [defendant] was actually too intoxicated to care for himself." On the station platform, the officer noticed that defendant was slurring his speech and had difficulty standing. The officer continued to assess defendant to determine whether he needed to have defendant transported to a civil detoxification center.

While on the platform, defendant sat down on a bench. The officer requested defendant's identification, and defendant cooperated. The officer ran a warrant check, which revealed that defendant did not have any outstanding warrants. During the time period in which the officer ran the warrant check, defendant leaned over to pick something up off the ground. As defendant leaned over, the officer noticed a knife handle sticking out of defendant's rear pants pocket. The trial court found that the officer saw the knife at the time when the officer "was getting ready to just release" defendant. After seeing the knife, the officer took it, removed it from its sheath, and discovered that it looked like a dagger. Defendant was charged with carrying a concealed weapon, specifically, a dagger.

Before trial, defendant moved to suppress evidence of the dagger. At the motion to suppress hearing, defendant argued that the officer twice had unlawfully seized defendant: first, when the officer took defendant off the Max train and, second, when the officer ran a records check to determine if defendant had any outstanding warrants. Defendant argued that, because the officer had stopped him without reasonable suspicion that he had committed or was about to commit a crime, the officer violated defendant's rights under Article I, section 9, of the Oregon Constitution.¹

The state argued that the interaction between the officer and defendant did not constitute a stop and that, even if it was a stop, the stop was authorized because the officer was engaging in community caretaking functions under ORS 133.033. The state also responded to defendant's specific arguments about the warrant check, stating that "running the ID is just a standard thing." The state asserted that, because the dagger was in plain view when the defendant leaned over, the officers did not need a warrant to seize it.

After considering the parties' arguments, the trial court ruled:

"I am going to deny the motion to suppress because I do believe that when the officer initially approach[ed] [defendant], it did was — it was one of a safety check, trying to figure out what was going on.

"Where it's interesting to me is that based on the testimony of [defendant], it doesn't sound like it was a stop. But based on what the officer testified to, there was a stop. So it comes down to credibility.

"And even with the officer stopping [defendant] while he — I agree that there was a stop with him running a check and it looked as if he had cleared and he was getting ready to just release him when, according to [the officer]s' testimony, he saw the knife versus what [defendant] said, was that when he awoke there was a knife.

"In any event, the knife gave enough probable cause for [the officer] to then inquire. So, for that reason, I will deny the motion to suppress. * * *".

On appeal, defendant renews his arguments that he was twice unlawfully seized in violation of his rights under Article I, section 9, of the Oregon Constitution.² At each of those times, defendant argues, he was seized within the meaning of Article I, section 9. Specifically, defendant argues that taking his identification card and conducting a warrant check was a stop under Hall, 339 Or. at 19, 115 P.3d 908.

Defendant argues that his seizure was per se unreasonable and that the state has the burden of proving an exception to the warrant requirement. Defendant argues that there was not even a suspicion that he had committed or was about to commit a crime. Thus, according to defendant, the seizure could not be justified on that ground. Defendant also argues that his seizure could not be justified by the officer's authority to engage in community caretaking functions, ORS 133.033, the officer's authority to hold an intoxicated person, ORS 430.399, or any exception to the warrant requirement. Defendant concludes that, because his seizure was a "but for" cause of the officer's discovery of the dagger, the trial court erred by denying his motion to suppress.

The state concedes that defendant was seized within the meaning of Article I, section 9, when the officer escorted defendant off the train. The state argues that defendant's seizure was lawful under the community caretaking statute, ORS 133.033. On appeal, however, the state does not address whether defendant's seizure was unlawfully extended when the officer asked for defendant's identification and ran a warrant check. The state explains that defendant did not preserve that argument:

"The state has not responded to that `scope of stop' argument because it relates only to defendant's discussion of ORS 430.399, which the state does not rely on here. Insofar as defendant intends for that `scope' argument to apply to his contention that his detention was unlawful under the community caretaking statute, this court should not consider it, given that defendant did not assert that separate legal theory in any manner below. See State v. Amaya, 336 Or. 616, [629], 89 P.3d 1163 (2004) (refusing to consider defendant's unpreserved arguments that police unlawfully seized him and explaining that `[d]efendant's arguments that we have rejected on preservation grounds * * * are discrete legal theories as to specific actions of the officers, each of which allegedly constituted a seizure')."

Accordingly, this case presents two issues on appellate review. On the merits, the issue is whether a sufficient factual nexus exists between any unlawful seizure of defendant and the officer's discovery of the dagger such that the trial court erred in denying defendant's motion to suppress. We must also determine whether defendant properly preserved that issue.

We first consider preservation. An issue is preserved for appellate review if the trial court has had the opportunity to "identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000). Rules of preservation require that no party is taken by surprise, misled, or denied opportunities to respond to an argument. State v. Olivar, 216 Or.App. 126, 135, 171 P.3d 1006 (2007), rev. den., 344 Or. 110, 178 P.3d 249 (2008).

To preserve a claim that a trial court improperly denied a motion to suppress evidence as a result of an unlawful seizure, a defendant must present at the hearing an argument as to why a specific action of an officer constitutes a seizure. Amaya, 336 Or. at 630, 89 P.3d 1163. Accordingly, a defendant who "failed to make any argument to the trial court that [an officer] stopped * * * [defendant] when he took [defendant's] license" has not preserved for appellate review an argument that the taking of the defendant's license constitutes an unlawful stop. Id. at 628, 89 P.3d 1163. Similarly, a defendant did not preserve, for appellate review, the issue whether a patdown search was unlawful where the defendant had filed at trial "a generic motion to suppress * * * focused solely on whether [an officer] had been authorized to ask questions that went beyond the scope of the traffic stop" but...