State v. Chambers
| Decision Date | 20 September 2017 |
| Docket Number | A161096. |
| Citation | 287 Or.App. 840,404 P.3d 1122 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Elise Fern CHAMBERS, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Per C. Olson, Megan E. McVicar, and Hoevet Olson Howes, PC, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
Defendant appeals her convictions for unlawful possession of a Schedule II controlled substance, ORS 475.752 (3)(b), and unlawful possession of a firearm, ORS 166.250. Defendant assigns error to the trial court's denial of her motion to suppress. She contends that the evidence discovered by Washington County deputies after she was stopped by a probation officer should have been suppressed pursuant to Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. She maintains that the deputies' reasonable suspicion that she had violated her diversion agreement, which she entered into following a charge for driving under the influence of intoxicants (DUII), did not provide a lawful basis for stopping her. We conclude that the trial court erred when it concluded that a reasonable suspicion that defendant had violated her diversion agreement provided a lawful basis on which to stop her. Accordingly, the stop was unlawful, and defendant's motion to suppress the evidence discovered as a result of the stop should have been granted. Therefore, we reverse and remand.
When reviewing a denial of a motion to suppress, "we are bound by the trial court's findings of historical fact that are supported by the evidence in the record." State v. Holdorf , 355 Or. 812, 814, 333 P.3d 982 (2014). "[O]ur role is to decide whether the trial court correctly applied the law to those historical facts." Id . We state the facts consistently with that standard.
The events at issue occurred at a DUII victim-impact panel that defendant was attending as a requirement of her DUII diversion agreement. After the program started, Deanna Kemper, a Washington County community corrections probation officer, acting in this instance as the panel coordinator, noticed that defendant was fidgeting and swaying repeatedly. Another attendee complained to Kemper that defendant was using a tennis ball to rub her legs and her upper thighs in a way that was "highly distracting." Kemper became concerned that defendant "was distracting to others, was under the influence of drugs, and was unable to focus on the presentations."
Kemper decided to investigate what the problem was. Kemper asked two reserve deputies, who were providing general security, to ask defendant to leave the auditorium with them so that Kemper could talk to defendant. "If defendant could be returned to the auditorium without disrupting others, it was [Kemper's] plan to have defendant return in order that she could complete her Diversion obligation." When Deputy Chesler approached defendant, he noticed that she was "sweating profusely, more so than would be explained by the hot auditorium conditions."
Defendant willingly followed the deputies out of the auditorium into the main hallway. Both Kemper and Chesler observed that "defendant noticeably swayed as she walked," to the point that she needed to be physically guided out of the auditorium. Once in the hallway, Kemper directed defendant to sit in a chair, which was backed up against a wall. Kemper blocked defendant's exit from the building. Kemper confronted defendant about her concerns that defendant was under the influence of illegal drugs. Defendant eventually admitted that she had taken two Adderall earlier that day and that she did not have a prescription for them. As the interaction continued, Chesler suspected that defendant had illegal drugs in her purse and asked if he could look inside it; defendant gave him permission to do so. Among other items, Chesler found a loaded .38 Smith and Wesson revolver, an expired concealed weapon permit, and some Adderall pills. Defendant was arrested and charged with possession of a weapon in a public building, ORS 166.370, unlawful possession of a Schedule II controlled substance, ORS 475.752 (3)(b), and unlawful possession of a firearm, ORS 166.250.
Before her trial, defendant filed a motion to suppress the evidence that the deputies found in her purse on the basis that the deputies had seized her and searched her handbag unlawfully. The state argued that Kemper and the deputies had a lawful basis to stop defendant based on a reasonable suspicion that she was in violation of the conditions of her diversion agreement. The state relied on State v. Hiner , 240 Or. App. 175, 246 P.3d 35 (2010), in which we held that the authority to arrest a person based on probable cause that the person has committed a probation violation implies the authority to stop a person based on reasonable suspicion of a probation violation. Defendant argued that a deputy's reasonable suspicion of a person's violation of a diversion agreement is not a constitutional basis for a stop. The trial court concluded that defendant was stopped "when Ms. Kemper blocked the defendant's egress from the building." After that ruling, the court allowed the parties time to prepare and submit written arguments to address whether there was sufficient evidence to support a reasonable suspicion for the basis of the stop—that defendant had violated her diversion requirements.
The court ultimately concluded that, based on the totality of the circumstances, Kemper had reasonable suspicion sufficient to stop defendant when Kemper blocked defendant's egress from the building. The court stated that "defendant's inability to walk from her chair to the hallway without physical guidance and without wavering" was "especially probative" and concluded that reasonable suspicion existed that "defendant was using * * * either illegal controlled substances or legal controlled substances in a manner that was not prescribed." Because such use of controlled substances violated defendant's diversion agreement and provided a lawful basis for the stop, the court denied defendant's motion.
Defendant tried the case to the court based on the evidence presented at the hearing on the motion to suppress. The trial court acquitted defendant of the charge of possession of a weapon in a public building and entered a judgment of conviction on the charges of unlawful possession of a Schedule II controlled substance, ORS 475.752(3)(b), and unlawful possession of a firearm, ORS 166.250. This appeal followed.
On appeal, defendant assigns error to the trial court's conclusion that there was a lawful basis on which to stop her. Defendant argues that, because "the provisions of Oregon's statutory DUII diversion program do not expressly or implicitly authorize officers to stop or arrest a person for failing to comply with the conditions of a DUII diversion agreement," reasonable suspicion that she had violated the agreement was not a basis on which she could be stopped. Thus, she asserts that the evidence that the deputies obtained after Kemper stopped her should have been suppressed under both Article I, section 9, and the Fourth Amendment.1
In response, the state argues that Kemper and the deputies' reasonable suspicion that defendant had violated her diversion agreement provided them with a lawful basis for stopping her. In support, the state cites Hiner and the statutes governing DUII diversion agreements, ORS chapter 813. The state also asserts two alternative bases on which it argues that we should affirm the trial court—either that there was no stop or that Kemper and the deputies had reasonable suspicion to stop defendant on the basis that she had recently possessed illegal drugs.
We review the trial court's ruling on defendant's motion to suppress for errors of law. State v. Baker , 350 Or. 641, 650, 260 P.3d 476 (2011). Article I, section 9, guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure." Evidence must be excluded when it is seized without a warrant or a constitutionally sufficient exception to the warrant requirement. State v. Scruggs , 274 Or. App. 575, 582, 362 P.3d 265 (2015). In cases of warrantless search or seizure, the state has the burden to demonstrate that a valid exception to the warrant requirement exists. Id . at 582-83, 362 P.3d 265.
A stop is "a type of seizure that involves a temporary restraint on a person's liberty." State v. Ashbaugh , 349 Or. 297, 308-09, 244 P.3d 360 (2010). Generally, a stop "violates Article I, section 9, unless justified by, for example, necessities of a safety emergency or by reasonable suspicion that the person has been involved in criminal activity." Id . at 309, 244 P.3d 360. In addition, we have previously concluded that an officer may stop a person based on a reasonable suspicion that the person has engaged in conduct for which the legislature has explicitly provided a statutory authority to arrest because "it is reasonable and necessary to imply the authority to stop persons reasonably suspected of [such conduct]." State v. Steinke , 88 Or. App. 626, 628-29, 746 P.2d 758 (1987).
In Hiner , a deputy stopped the defendant because the deputy "had a subjective belief that defendant was in violation of the terms of his probation." 240 Or. App. at 179, 246 P.3d 35 (internal quotation marks and brackets omitted). The defendant argued that the deputy did not have the statutory authority to stop him based on the suspicion that he had violated his probation because a probation violation is not a crime. Id . at 180, 246 P.3d 35. Without considering whether a probation violation is a crime, we held that the deputy had the authority to stop the defendant based on his authority, under ORS 137.545(2),...
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