State v. Lecarros

• Decision Date: 27 March 2003
• Parties: STATE of Oregon, Respondent, v. David LECARROS, aka David Le Caros, Appellant.
• Court: Oregon Court of Appeals

66 P.3d 543

187 Or. App. 105

STATE of Oregon, Respondent, v. David LECARROS, aka David Le Caros, Appellant.

00-06-47895; A113837.

Court of Appeals of Oregon.

Argued and Submitted November 14, 2002.

Decided March 27, 2003.

Michael A. Rees argued the cause for appellant. With him on the brief was Metropolitan Public Defender Services, Inc.

Robert M. Atkinson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and BREWER and SCHUMAN, Judges.

SCHUMAN, J.

Defendant appeals from his conviction for operating a boat while he was under the influence of intoxicants. He assigns error to the trial court's denial of his motion to suppress evidence seized by law enforcement officers after they stopped him, at random and without suspicion, to conduct a safety inspection. We reverse and remand.

The facts are few and undisputed. Three Multnomah County deputy sheriffs in a clearly marked police boat were patrolling a body of water known as the Multnomah Channel when they decided to conduct a random safety inspection of defendant's cabin cruiser pursuant to ORS 830.035(1). That statute provides:

"The sheriff of each county and all other peace officers shall be responsible for the enforcement of [ORS chapter 830, Small Watercraft] and any regulations made by the State Marine Board pursuant thereto. In the exercise of this responsibility, a peace officer may stop any boat and direct it to a suitable pier or anchorage for boarding."

The officers guided their boat to a position parallel to defendant's and about two feet from it. They then reached out and "hung on to" defendant's boat while asking to see his safety equipment and registration. He showed them life jackets, fire extinguishers, and other equipment, but he could not produce the paperwork because, he said, it was on shore in his van. The deputies then ordered him to take the boat to its dock so he could retrieve the papers. As they spoke with him and observed him operating the boat, they developed the suspicion that he was under the influence of alcohol. On shore, they administered several sobriety tests. He failed and was subsequently arrested for operating a boat while under the influence of alcohol, a Class A misdemeanor. ORS 830.325(1); ORS 830.990(5).

At trial, defendant moved for exclusion of all the evidence obtained as a result of his encounter with the deputies, arguing that the evidence derived from a "stop" that was unlawful under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. If the stop was for purposes of criminal law enforcement, he maintained, it was unlawful because the officers did not have any suspicion of criminal conduct. If the stop was administrative or regulatory, it was unlawful because no statute or rule imposed limits on officer discretion. The trial court denied his motion.

Before this court, defendant renews those arguments. The state, in response, raises two theories that it did not raise at trial: first, that the encounter was not a stop at all but merely an instance of police-citizen interaction that did not trigger constitutional protections; and second, that Article I, section 9, does not apply to searches or seizures of boats.

Generally, this court will not consider an issue that the trial court did not have the opportunity to consider in the first instance. State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000); State v. Hitz, 307 Or. 183, 188, 766 P.2d 373 (1988). However, if the new issue is raised on appeal by the party that prevailed at trial and it affords an alternative basis for affirming the judgment below, then—again, generally—the appellate court may consider it. State v. Rogers, 330 Or. 282, 295, 4 P.3d 1261 (2000). There are a number of exceptions to this so-called "right for the wrong reason" doctrine, one of which is relevant here. The appellate court will not consider an alternative ground for affirmance if the losing party at trial could have developed a materially different factual record had the alternative theory been raised. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 660, 20 P.3d 180 (2001).

Guided by those precepts, we decline to address the state's argument that the encounter between the deputies and defendant was not a stop. The prosecutor never argued that the encounter was not a stop. In fact, on several occasions the trial court referred to the encounter as a "stop" without objection or correction by the prosecutor, and the prosecutor himself stated, "I am prepared to argue * * * that in this case the normal sort of traffic style stop which ripened into an investigation was present."

Had the state argued that the encounter was not a stop, defendant could have made a different record. A stop for purposes of triggering the protections of Article I, section 9, occurs

"(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances."

State v. Holmes, 311 Or. 400, 409-10, 813 P.2d 28 (1991) (footnote omitted). Thus, had the issue arisen, defendant's counsel could have attempted to adduce evidence of the physical circumstances surrounding the encounter, for example, who said what and to whom, how long the officers detained defendant, and whether they were armed. More importantly, defendant's counsel could have questioned the deputies to determine whether they intended to restrict defendant's freedom of movement and could have questioned defendant to determine whether he believed that they had done so. Instead, the evidence relating to what physically occurred during the encounter consisted of two facts: The officers pulled alongside defendant's boat, and they held on to it. There is no testimony at all regarding any participant's state of mind. In short, the state both actively asserted and passively acknowledged that the encounter was a stop; as a result, defendant had no need or motive to adduce those facts that would allow us to evaluate the state's new argument that it was not a stop. Under those circumstances, we will not consider the state's argument on appeal.

We will, however, consider the state's argument that Article I, section 9, does not impose limits on the state's authority to seize and search boats. That argument involves a pure question of law; defendant's lack of opportunity to adduce particular facts is therefore irrelevant. Outdoor Media Dimensions Inc., 331 Or. at 659, 20 P.3d 180 (appellate court will consider unraised arguments for affirmance where the issue is "purely one of law").

The state derives its "boat exception" theory from two sources: the Oregon Supreme Court's recent emphasis on history as the most important source of constitutional interpretation, see, e.g., Smothers v. Gresham Transfer, Inc., 332 Or. 83, 23 P.3d 333 (2001), and United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983), a United States Supreme Court decision under the ...