State v. Dahl

• Decision Date: 09 May 1996
• Citation: 915 P.2d 979,323 Or. 199
• Parties: STATE of Oregon, Respondent on Review, v. Douglas DAHL, Petitioner on review. DC Z157060; CA A83202; SC S41948.
• Court: Oregon Supreme Court

Page 979

915 P.2d 979

323 Or. 199

STATE of Oregon, Respondent on Review, v. Douglas DAHL, Petitioner on review.

DC Z157060; CA A83202; SC S41948.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 5, 1996.

Decided May 9, 1996.

[323 Or. 200-A] On review from the Court of Appeals. ^*

The decision of the Court of Appeals and the judgment of the district court are reversed. This case is remanded to the district court for further proceedings.

Paul L. Breed, Portland, argued the cause and filed briefs on behalf of petitioner on review.

Douglas F. Zier, Assistant Attorney General, argued the cause on behalf of respondent on review. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General, Salem.

UNIS, Justice.

The questions in this case are (1) whether a "seizure" of a person occurs under either Article I, section 9, of the Oregon Constitution ¹ or the Fourth Amendment to the Constitution of the United States ² when law enforcement officers order a person to come out of his house with his hands up and the person to whom the order is directed complies with that order and, (2) if so, whether, in the light of the circumstances of this case, a seizure of that kind was unlawful. We answer those questions in the affirmative. We therefore reverse the contrary decision of the Court of Appeals, vacate the judgment of the district court, and remand this case to the district court for further proceedings.

On September 3, 1993, Portland police officers responded to a report from an anonymous telephone caller that there was a "man waving a gun on the front porch" at a specified address. ³ The officers arrived at that location, barricaded the streets, and surrounded the house.

As Officer Willard arrived at the scene, he observed defendant driving a car and making a wild swerve over the left side of the street. Willard shined his flashlight at defendant and saw that defendant had a "dazed look," that he was slumped behind the wheel, and that he did not respond to the light. Although he suspected that defendant was under the influence of intoxicants, Willard did not stop or pursue defendant. Willard stationed himself at the northeast corner of the house. He then saw defendant drive around the corner and into the driveway. Officers Hoesley (the officer in charge) and Kahut, along with several other officers, arrived at the scene. Willard told Hoesley that he had observed defendant driving around the block, but he did not tell Hoesley, Kahut, or any of the other officers at the scene about his other observations about defendant or that he suspected defendant to be under the influence of intoxicants.

When Kahut saw defendant come out of the house onto the front porch, she shouted for him to come down "with his hands up." Instead, defendant went back into the house and shut the door. At Kahut's request, a police dispatcher then telephoned defendant and ordered him ⁴ to come out of the house with his hands up. Defendant complied with that order. When defendant emerged from the house, the officers perceived that his eyes were bloodshot, that his speech was slurred, that he had a "swaying walk," and that he smelled of alcohol. On questioning, defendant admitted that he had driven his car earlier in the evening. Defendant was searched. After Hoesley searched defendant's house, including the basement, she transported him to the police station where, after she administered field sobriety and breath tests, defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.010.

Before trial, relying on both Article I, section 9, of the Oregon Constitution and the Fourth Amendment, defendant moved to suppress all the evidence derived from his compliance with the order to come out of the house, including the officer's observations of his intoxication, his statement that he had been driving earlier in the evening, and the results of the field sobriety and breath alcohol tests. In support of his motion, defendant argued that he was seized unlawfully, without a warrant, inside his house when he complied with the police order to come out "with his hands up."

ORS 131.005(11) provides that " '[p]robable cause' means that there is a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it." Under Article I, section 9, of the Oregon Constitution, there are two components to probable cause: "An officer must subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure, and this belief must be objectively reasonable in the circumstances." State v. Owens, 302 Or. 196, 204, 729 P.2d 524 (1986). The state conceded that the officers did not have probable cause to believe that defendant had committed a crime until after defendant emerged from his house in compliance with the "come-out-with-your-hands-up" order. Nevertheless, the state argued that defendant was not "seized" until the police had probable cause to arrest him by observing him after he came out of his house.

The trial court found that, when defendant complied with the order to come out of his house "with his hands up," he was "taken in[to] custody which for all purposes is an arrest" and that defendant "was not free to go * * * [un]til [the police] secured the house." Nonetheless, the trial court denied defendant's motion to suppress, reasoning:

"[Defendant] wasn't forced out of the house. They didn't drag him out of there. They told him to come out of there, and he didn't have to come. He could have stayed in that house. And they never could have gone in that house. Never. Because they had no reason to go in the house. None whatsoever. * * * The arrest was legal."

After a jury trial, in which the challenged evidence was received in the state's case-in-chief, defendant was convicted of DUII and sentenced. Defendant appealed his conviction to the Court of Appeals, assigning as error the trial court's denial of his motion to suppress. The Court of Appeals affirmed defendant's conviction without opinion. State v. Dahl, 132 Or.App. 232, 888 P.2d 606 (1994). We allowed defendant's petition for review.

Before addressing defendant's state and federal constitutional claims, we first decide whether the police officers acted lawfully under proper authorization by a politically accountable lawmaker. State v. Holmes, 311 Or. 400, 404, 813 P.2d 28 (1991).

A peace officer has statutory authority to make a warrantless arrest of a person if the officer has probable cause to believe that the person has committed a felony, a Class A misdemeanor, the offense of DUII under ORS 813.010, or certain other offenses. ORS 133.310(1). Peace officers also are authorized by ORS 133.033(1) "to perform community caretaking functions." " '[C]ommunity caretaking functions' means any lawful acts that are inherent in the duty of the peace officer to serve and protect the public." ORS 133.033(2) (emphasis added). As used in ORS 133.005 and 133.310, "peace officer" includes a municipal police officer. ORS 133.033(2) provides:

" 'Community caretaking functions' includes, but is not limited to:

"(a) The right to enter or remain upon the premises of another if it reasonably appears to be necessary to:

"(A) Prevent serious harm to any person or property;

"(B) Render aid to injured or ill persons; or

"(C) Locate missing persons.

"(b) The right to stop or redirect traffic or aid motorists or other persons when such action reasonably appears to be necessary to:

"(A) Prevent serious harm to any person or property;

"(B) Render aid to injured or ill persons; or

"(C) Locate missing persons."

ORS 133.033(3) provides:

"Nothing contained in this section shall be construed to limit the authority of a peace officer that is inherent in the office or that is granted by any other provision of law." ⁵

The quoted statutes do not provide a comprehensive definition of what constitutes "lawful acts." Attempting an essay on that topic would take us afield needlessly. Whatever the meaning of "lawful acts" in the context of ORS 133.033, that meaning must be consonant with the state and federal constitutions. Therefore, we assess the effect of Kahut's telephoned order for defendant to "come out of his house with his hands up" and defendant's compliance with that order within the parameters of the state and federal constitutions.

We first consider defendant's assertions under Article I, section 9, of the Oregon Constitution. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (stating methodology). In our review, we are bound by the trial court's findings of historical facts if there is evidence in the record to support them. State v. Bost, 317 Or. 538, 541, 857 P.2d 132 (1993). Our function is limited to determining whether legal principles were correctly applied. State v. Davis, 295 Or. 227, 238, 666 P.2d 802 (1983).

Article I, section 9, of the Oregon Constitution prohibits police officers from conducting unreasonable searches and seizures. State v. Gerrish, 311 Or. 506, 510, 815 P.2d 1244 1991). Relying on that constitutional provision, defendant asserts that he was unlawfully seized inside his house. The first issue in an Article I, section 9, seizure analysis is whether the conduct of the police constituted a "seizure" in the constitutional sense. Id. In this case, that approach requires us to determine whether defendant's compliance with the officer's order to "come out of his house with his hands up" was a seizure of defendant.

Given the diversity in the possible kinds of encounters between police and citizens, we have been cautious in defining the limits imposed by Article I, section 9, on such encounters. This court previously has identified three distinct categories of police-citizen encounters along the continuum of meetings between police and citizens and has indicated whether those...