State v. Holmes

• Court: Supreme Court of Oregon
• Citation: 813 P.2d 28,311 Or. 400
• Parties: STATE of Oregon, Petitioner on Review, v. Michael Lawrence HOLMES, Respondent on Review. TC CR89-87, M89-69; CA A60910; SC S37239.
• Decision Date: 30 May 1991

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813 P.2d 28 311 Or. 400 STATE of Oregon, Petitioner on Review,
v.
Michael Lawrence HOLMES, Respondent on Review. TC CR89-87, M89-69; CA A60910; SC S37239. Supreme Court of Oregon. Argued and Submitted Sept. 5, 1990.
Decided May 30, 1991.

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[311 Or. 401A] Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Glenn M. Feest, Beaverton, argued the cause for respondent on review.

Before PETERSON, C.J., and CARSON, GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

[311 Or. 402] UNIS, Justice.

This is yet another case in which this court is called on to decide whether police action constitutes a "seizure" of a person within the meaning of Article I, section 9, of the Oregon Constitution ¹ and the Fourth Amendment to the Constitution of the United States. ² Specifically, the issue is: Does a law enforcement officer who positions himself about one-half mile from a motor vehicle accident and who stops a motorist on a public highway for the purpose of advising the motorist of a detour around the accident "seize" the person of the motorist within the meaning of those constitutional provisions? We answer "no."

FACTS

While assisting in the nighttime investigation of a fatal motor vehicle accident

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that completely blocked travel on a bridge on Highway 197 near the town of Dufur, Wasco County, Deputy Sheriff Achziger set up a detour at the north end of the bridge to reroute southbound traffic around the accident scene. Achziger laid out a pattern of flares on the highway north of the bridge and positioned his patrol car, with its overhead lights flashing, behind the flares. Achziger, who was wearing his uniform with a badge displayed on it and holding a flashlight, then stationed himself in the center of the southbound lane, about one-half mile from the accident, in order to divert traffic onto a road that went through Dufur and rejoined Highway 197 at a point south of the accident site. Motorists approaching Achziger could see the accident scene behind him, as well as several emergency vehicles with overhead lights flashing. ³

[311 Or. 403] Before encountering defendant, Achziger stopped about one dozen vehicles, advised the drivers of the accident ahead and rerouted them around the accident scene. When defendant's automobile neared him, Achziger pointed a flashlight beam at the vehicle and motioned with his free hand for defendant to stop. Instead of stopping his car where Achziger stood, as the previous motorists had done, defendant drove past Achziger and stopped about two or three feet beyond him. As Achziger took a step toward defendant's automobile, it rolled another two or three feet from him and then stopped. At that time, Achziger had no reason to suspect that defendant had violated any law and had observed no other unusual driving.

When Achziger reached the driver's side of defendant's car, the window on the driver's side was down. Shining his flashlight into defendant's car, Achziger spoke with defendant, explaining that, because of the accident on the bridge, defendant would have to detour through Dufur. When defendant responded, Achziger detected a strong odor of alcohol on defendant's breath. Achziger observed that defendant's eyes appeared to be bloodshot, his eyelids were "sleepy" or not fully open, his face was flushed, and his speech was slurred. Achziger asked defendant whether he had anything to drink that evening. Defendant stated he had a couple of beers. Achziger then asked defendant to step out of his car and advised defendant of his constitutional rights. After defendant performed field sobriety tests, Achziger arrested him for driving under the influence of intoxicants. ORS 813.010.

Before trial, defendant moved to suppress all evidence obtained following Achziger's stop of him in his vehicle, asserting that the stop constituted an unreasonable "seizure" of his person in violation of both Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the Constitution of the United States. The trial court granted defendant's motion. Unable to find any "specific grant of authority to the sheriff to direct traffic at the scene of an accident," the trial court concluded that Achziger's stopping of defendant in his vehicle constituted an unreasonable "seizure" of defendant's person under Article I, section 9, of the Oregon Constitution and, therefore, suppressed evidence gained as a result of such "seizure." The state appealed. The Court of Appeals affirmed without opinion. State v. Holmes, 101 Or.App. 676, 791 P.2d 867 (1990). We reverse the decision of the Court of Appeals and the [311 Or. 404] judgment of the circuit court, and remand this case to the circuit court for further proceedings.

I. SUBCONSTITUTIONAL ANALYSIS

Before reaching defendant's state and federal constitutional claims, we first examine whether the deputy sheriff acted lawfully under proper authorization by a politically accountable lawmaker. ⁴

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Article VI, section 8, of the Oregon Constitution provides that every county sheriff shall "perform such duties, as may be prescribed by law." ⁵ ORS 206.010 provides that the sheriff is the "conservator of the peace of the county." That statute sets forth the general duties that a sheriff shall perform. ⁶ As used in the Oregon Vehicle [311 Or. 405] Code, ⁷ "police officer" includes a sheriff or a deputy sheriff, ORS 801.395, except where the context of a statute requires otherwise. ORS 801.100. Various provisions of the Oregon Vehicle Code vest a police officer with certain authority to enforce its provisions. ⁸ In "attempting to enforce" Oregon traffic laws, a police officer "shall be in uniform or shall conspicuously display an official identification card showing the officer's lawful authority." ORS 810.400.

The authority of a police officer to direct, control or regulate traffic at or near the scene of an accident and to require a person operating a motor vehicle to stop is established by certain provisions of the Oregon Vehicle Code. ORS 811.540 ⁹ requires a person operating a motor vehicle to bring his or her vehicle to a stop if given a visual or audible signal to do so by a police officer who is in uniform and prominently displaying the police officer's badge of office. A driver of a motor vehicle is required by ORS 801.510 ¹⁰ to stop, even [311 Or. 406] though otherwise

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prohibited by Oregon statute, ¹¹ if directed to do so by a police officer. A driver of a motor vehicle is required by ORS 811.535 ¹² to obey "any lawful order, signal or direction of a police officer who has lawful authority to direct, control or regulate traffic."

Deputy Sheriff Achziger, who was wearing his uniform with a badge displayed on it, therefore, was authorized by a politically accountable lawmaker to stop defendant and advise defendant of the accident ahead and the need to detour through Dufur. ¹³

II. OREGON CONSTITUTIONAL ANALYSIS

Our next inquiry is whether Deputy Sheriff Achziger's actions concerning defendant violated defendant's rights under Article I, section 9, of the Oregon Constitution. ¹⁴ To answer that question, we first must decide whether Achziger's stopping of defendant for the purpose of advising him of a detour due to an accident constituted a "seizure" of a person within the meaning of Article I, section 9.

There potentially is an infinite variety of encounters between law enforcement officers and citizens. Not every such encounter constitutes a "seizure" of the citizen within [311 Or. 407] the meaning of Article I, section 9. Encounters may range from friendly exchanges of pleasantries or mutually helpful information to hostile confrontations of armed persons involving arrests, injuries, or even loss of life. Some encounters begin in a friendly, voluntary, noncoercive atmosphere, but take a different direction upon the injection of some unexpected element into the encounter.

In many cases it is clear that a person has been "seized." But there are many instances in which it is less obvious whether a police-citizen encounter is a "seizure."

This court previously has identified three categories of encounters along the continuum of meetings between law enforcement officers and citizens and has indicated whether those encounters constitute a "seizure" of a person under Article I, section 9, of the Oregon Constitution: First, a police-citizen encounter without any restraint of liberty (e.g., mere conversation, a non-coercive encounter) is not a "seizure" and, therefore, requires no justification. State v. Warner, 284 Or. 147, 161, 585 P.2d 681 (1978). Second, a "seizure" of a person occurs when a police officer temporarily restrains a person's liberty (a "stop" under ORS 131.605(5)), justified by reasonable suspicion of the citizen's criminal activity. ¹⁵ State v. Kennedy, 290 Or. 493, 498, 624 P.2d 99 (1981); State v. Warner, supra, 284 Or. at 161, 585 P.2d 681. Third, a "seizure" of a person occurs upon an arrest, justified by probable cause to believe that the person arrested has committed a

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crime. ¹⁶ State v. Warner, supra.

The three categories (no-seizure encounter for which no justification is required, stop on reasonable suspicion, and an arrest for probable cause) represent a graduation of permissible police authority with respect to encounters with citizens and directly correlate the degree of required justifiable belief with the permissible scope of interference. The three categories are guidelines only. They are neither exhaustive nor conclusive as to what police action is a "seizure" of a [311 Or. 408] person. For example, a termination of a person's life by a police officer would constitute a "seizure" under Article I, section 9, of the Oregon Constitution. ¹⁷

Given the diversity of potential police-citizen encounters and that the facts and circumstances of...