State v. Kreis
| Decision Date | 31 October 2018 |
| Docket Number | A157224 |
| Citation | 432 P.3d 245,294 Or.App. 554 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Eric Lawrence KREIS, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Marc Brown, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services.
Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge.
Defendant appeals from a judgment of conviction after a jury trial for interfering with a peace officer by refusing to obey a lawful order, ORS 162.247(1)(b), assigning error to the trial court's denial of his motion for judgment of acquittal. Defendant contends that the officer's order for defendant to turn around and put his hands behind his back was not a lawful order, because it was a warrantless seizure in violation of Article I, section 9, of the Oregon Constitution. The state responds that the order was a lawful order justified by officer-safety concerns. Defendant also challenges the imposition of an award of attorney fees for court-appointed counsel on the offense of resisting arrest, of which defendant was acquitted. We conclude that the court did not err and affirm.
In reviewing the court's denial of the motion for judgment of acquittal, we view the facts in the light most favorable to the state and draw all reasonable inferences in the state's favor. State v. Lupoli , 348 Or. 346, 366, 234 P.3d 117 (2010). However, the facts are largely undisputed and only questions of law are raised on appeal.
Beaverton Police Officers Crino and Mendez were on patrol and drove by a restaurant parking lot that was the site of frequent thefts from cars. The officers were aware that the restaurant had been closed for 20 minutes. As the officers drove through the parking lot, they saw defendant standing near several parked cars. The officers decided to investigate whether defendant was looking into vehicles or whether he was intoxicated and about to drive. While Mendez went to speak with defendant, Crino stayed with the patrol car and learned that defendant matched the description of the owner of a car by which he was standing. Mendez returned and told Crino that defendant did not want to talk. The officers then saw defendant walk in the direction of a secluded patio at the back side of the restaurant, and decided to follow on foot. They approached defendant at the back door of the restaurant.
Crino told defendant that the restaurant was closed and asked defendant why he was there. He asked defendant's name, if he was employed by the restaurant, and whether he had been standing by his own car. Defendant did not respond. When defendant took steps as if to leave, Crino told defendant that he was not free to go until the investigation of "what's going on here" was complete. Defendant became agitated and responded in an angry tone, "I don't have to talk to you," and "I'm not answering any of your questions."
Crino recognized signs that defendant was intoxicated, including a smell of alcohol, a flushed face, and blood-shot and watery eyes. Because of that, and because Mendez was a new officer, Crino called for backup. Two officers arrived and stood nearby. Crino told defendant that he was going to call someone from the restaurant to see if defendant had permission to be on the premises. Crino also told defendant that he would be arrested if he did not cooperate by providing his name and date of birth. Defendant appeared to become angrier and balled his fists and took a "bladed stance," shifting his weight back and forth, as if he intended to lunge or flee. Through clenched teeth, defendant stated, in a slow, angry tone, "I am not going to be arrested."
At that point, Crino told defendant to turn around to face the building and put his hands behind his back so that he could be handcuffed for officer safety. When defendant refused, Crino made the request a second time, telling defendant that, based on defendant's behavior, he believed defendant was going to fight and that he was going to place him in handcuffs for defendant's and his own safety. Defendant replied "no" and refused to turn around. Crino then told defendant that he was under arrest "for interfering." Defendant resisted as the officers tried to place his arms behind his back. There was a struggle, with defendant pulling away until the four officers took him to the ground and subdued and handcuffed him.
Defendant was charged with resisting arrest and interfering with a peace officer based on his refusal to turn around and place his hands behind his back. Crino, an instructor in defensive tactics and the use of force, testified that he ordered defendant to turn around and place his hands behind his back to be handcuffed because he believed that defendant posed a risk to officer safety. Crino testified that defendant's body language demonstrated "pre-fight cues"—indicating that defendant was preparing to lunge, run, or fight. Crino testified that defendant appeared to be looking past the officers for an escape route but that he never made a move toward the officers, never struck out at them, and never yelled at the officers or abused them in any way. However, Crino testified that defendant's apparent intoxication and agitation led him to conclude that defendant presented a risk to officer safety. He explained that intoxication makes people unpredictable and that "intoxicated people are more likely to—or more willing to fight with the police."
Defendant requested a judgment of acquittal on both charges and argued to the trial court that the order to turn around and place his hands behind his back was unlawful, because the officers had had no reasonable suspicion that defendant had committed an offense to justify the officers' stop of defendant. The state responded that, apart from justification for the stop, defendant's behavior provided reasonable suspicion for the officers' decision to temporarily restrain him for their safety. Defendant did not respond to the state's officer-safety argument. The court denied defendant's motion.
The jury acquitted defendant of resisting arrest but found him guilty of interfering. On appeal, defendant contends that the trial court erred in denying his motion for judgment of acquittal on the interfering charge, renewing his argument that Crino's order to turn around and place his hands behind his back was not lawful, because the officers had no basis on which to stop defendant.
The offense of interfering is defined in ORS 162.247(1)(b), which provides, in part:
The issue on appeal is the lawfulness of Crino's order for defendant to face the wall and put his hands behind his back. An order is lawful for purposes of ORS 162.247(1)(b) if it is authorized by, and not in violation of, substantive law, State v. Navickas , 271 Or. App. 447, 450, 351 P.3d 801, rev. den. , 358 Or. 248, 364 P.3d 1001 (2015) ; State v. Ausmus , 336 Or. 493, 504, 85 P.3d 864 (2003), including constitutional law. State v. Illig-Renn , 341 Or. 228, 240, 142 P.3d 62 (2006).
Article I, section 9, protects people from unreasonable seizures by police.1 It is undisputed that Crino's order for defendant to turn around and place his hands behind his back so that he could be handcuffed would have effected a seizure. Defendant asserts that the order was unlawful, because there was no warrant and officers did not have reasonable suspicion that defendant had committed or was about to commit a crime. The state responds that the order was reasonable in light of officer-safety concerns and, therefore, lawful under a long line of cases.
For purposes of the offense of interfering with a peace officer based on the failure to obey a lawful order, we long have held that the lawfulness of an order based on officer safety is to be judged independently of the validity of the initial police-citizen confrontation. State v. Bistrika , 261 Or. App. 710, 718, 322 P.3d 583, rev. den. , 356 Or. 397, 337 P.3d 127 (2014), cert. den. , ––– U.S. ––––, 136 S.Ct. 32, 193 L.Ed.2d 46 (2015) (); State v. Neill , 216 Or. App. 499, 508, 173 P.3d 1262 (2007), rev. den. , 344 Or. 671, 189 P.3d 26 (2008) (); see State v. Rodinsky , 60 Or. App. 193, 196, 653 P.2d 551 (1982) ().
Most recently, in State v. Wilson , 283 Or. App. 823, 828-29, 390 P.3d 1114, rev. den. , 361 Or. 801, 400 P.3d 925 (2017), we held that, even in the absence of a lawful initial seizure, an order may be justified by legally sufficient officer-safety concerns. In Wilson , the officers encountered the defendant in his car on a driveway while investigating a suspected burglary. They asked the defendant to roll down the car window, but the defendant refused, became agitated, and started searching for something around the center console area. Officers developed a concern that the defendant might reach for a weapon and ordered him out of the car. But the defendant refused, and he was ultimately charged with and convicted of interfering with a peace officer by refusing to obey a lawful order. Id. at 824-27, 390 P.3d 1114.
The defendant appealed,...
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State v. Kreis
...for purposes of that statute, the lawfulness of an encounter does not affect the lawfulness of a subsequent order. State v. Kreis , 294 Or. App. 554, 559, 432 P.3d 245 (2018). The court acknowledged the tension between its cases and Bates , which involved a motion to supress evidence and no......
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State v. Aquino
...his challenge to the amount of fees assessed. However, even if defendant preserved that issue, our decision in State v. Kreis , 294 Or. App. 554, 432 P.3d 245 (2018), rev'd on other grounds , 365 Or. 659, 451 P.3d 954 (2019), resolves it. It establishes that the trial court was authorized t......