State v. Goss

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Appellant, v. Sarah Theresa GOSS, Defendant-Respondent.
• Citation: 219 Or. App. 645,184 P.3d 1155
• Docket Number: D061384T.,A133391.
• Court: Oregon Court of Appeals
• Decision Date: 07 May 2008

184 P.3d 1155

219 Or. App. 645

STATE of Oregon, Plaintiff-Appellant, v. Sarah Theresa GOSS, Defendant-Respondent.

D061384T.

A133391.

Court of Appeals of Oregon.

Argued and Submitted September 27, 2007.

Decided May 7, 2008.

Susan G. Howe, Senior Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Erica Herb, Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

SERCOMBE, J.

The state appeals an order suppressing evidence entered before defendant's trial on a charge of driving under the influence of intoxicants. The state assigns error to the trial court's determination that the police lacked reasonable suspicion that defendant had committed that crime when she was stopped by the police for questioning. We review for errors of law on the record, ORS 138.220, and reverse.

On the afternoon of January 28, 2006, Kaela Thompson and Mary-Alice Crume were both working at the front counter of Scotty's Drive-In in Forest Grove. They observed defendant get out of the driver's side of an older red automobile and enter the restaurant. Crume took her order while Thompson stood close by. Both quickly concluded that defendant was intoxicated. At the suppression hearing, Crume testified that defendant "smell[ed of] a strong odor" and was walking "a little off-balance." Thompson stated that defendant was "just acting strange" and "wasn't talking right." Defendant had trouble reading the charge slip and signing her name for payment, had to make two orders because she forgot to include food in the first order, accused Thompson and Crume of taking her keys, and was being loud and "ma[de] a scene" by repeatedly asking for condiments after being told several times that they were included with her meal. Based on those actions, Crume and Thompson suspected "[w]ithin * * * a minute" that defendant was intoxicated.

While defendant's order was being prepared to go and defendant was searching for her keys, Thompson went to the back office and telephoned police because she was concerned that defendant would soon be driving her car and Thompson "[didn't] want [defendant] to hurt someone." Thompson reported to the police that defendant was intoxicated and was about to leave the restaurant. She provided defendant's name (which she had obtained from defendant's credit card) and vehicle information, together with her own name and location. After she placed the call to police, Thompson returned to the front counter. At that time, defendant asked Thompson where the bathroom was located. Defendant then went to the bathroom entrance, which was located outside at the rear of the building.

Officer Swiger of the Forest Grove Police Department received a call from police dispatch about a suspected intoxicated driver at Scotty's Drive-In. The dispatcher provided Swiger with a description of the driver's vehicle and told him that the owner of the vehicle was a Hispanic female with brown hair. Swiger arrived at the restaurant within 10 minutes of Thompson's call. He positioned his patrol car behind defendant's vehicle and went inside to talk to Thompson and Crume. Thompson told Swiger that the suspect was in the restroom at the back of the building. About that same time, Officer Ellensberg arrived at the scene. Ellensberg told Swiger to go outside and wait next to defendant's vehicle.

Once outside, Swiger spoke with a restaurant customer who was eating in her car that was parked next to defendant's vehicle. That customer reported that "the female driver of the vehicle had just come around the west corner, had actually seen us and then had went back around." Swiger recorded the customer's name and telephone number and then walked to the back of the building. An unidentified person yelled at Swiger that "they went that way," "into the parking lot [of the Budget Inn]." Swiger walked toward the Budget Inn parking lot, which was located directly behind Scotty's Drive-In, and saw a female with brown hair walking away from him. There were no other persons in the vicinity. Swiger called to the woman, who he later confirmed was defendant, to come "chat with [him] for a little bit," and she complied. Swiger observed that as defendant was walking towards him she was "stumbling from side to side," "constantly raising her arms from her side to maintain her balance," and "paying particular attention to her foot placement as she was walking." Based on her appearance, behavior, and performance of field sobriety tests, defendant was subsequently arrested for driving while under the influence of intoxicants.

Defendant moved to suppress all of the evidence obtained by the police, arguing that the police unlawfully stopped her, restrained her by transporting her from the place where she was stopped, searched her by asking her to perform field sobriety tests, and arrested her. The trial court granted the motion to suppress on the ground that the stop was illegal and did not consider the other grounds for the motion, concluding that the police lacked reasonable suspicion to believe that defendant was under the influence of intoxicants at the time of the stop. The court determined that Thompson and Crume were required to articulate, at the suppression hearing, specific reasons why they felt that defendant's impairment was due to alcoholic intoxication before the court could conclude that Swiger had reasonable suspicion to stop defendant. Referring to the testimony of Thompson and Crume, the trial court stated:

"[S]how me something in [their] testimony that specifically refers to indicia of intoxication. [Defendant] had trouble with the receipt, she was having trouble focusing, and she couldn't find her keys, and she has to go to the bathroom. I mean, there's any number of reasons why people could do that, that don't relate to alcohol."

On appeal, the state contends that the trial court erred in evaluating the reasonableness of Thompson's conclusion that defendant was intoxicated as part of its determination whether, at the time of the stop, Swiger reasonably suspected that defendant had committed a crime. Instead, the state asserts that the relevant issue is the information known to Swiger at the time of the stop. The state argues that Swiger had the requisite reasonable suspicion required to stop defendant based on a reliable citizen informant's report. The state posits that Thompson's call to the police to report a suspected intoxicated driver was reliable for three reasons: (1) if the report were false, Thompson would have exposed herself to civil or criminal liability for making it; (2) the report was based on Thompson's personal knowledge; and (3) Swiger confirmed Thompson's report by observing defendant and her vehicle substantially as described by Thompson.

In response, defendant argues that Swiger lacked reasonable suspicion to stop defendant because the stop was based on only a bare assertion that defendant appeared impaired. In defendant's view, Swiger failed to corroborate Thompson's report through his own observations and, therefore, under the totality of the circumstances, Swiger lacked reasonable suspicion for the stop. Defendant also asserts, as an alternative basis for affirmance, that Swiger lacked reasonable suspicion that defendant was actually the woman who prompted Thompson's report. We reject defendant's contentions and agree with the state's arguments.

ORS 131.615(1) limits the authority of police to stop and question persons. It provides:

"A peace officer who reasonably suspects that a person has committed or is about to commit a crime may stop the person and, after informing the person that...