State v. Middleton

• Decision Date: 20 February 2020
• Docket Number: A166299
• Citation: 302 Or.App. 339,459 P.3d 918
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Dylan Jeffrey MIDDLETON, Defendant-Appellant.
• Court: Oregon Court of Appeals

302 Or.App. 339

459 P.3d 918

STATE of Oregon, Plaintiff-Respondent,

v.Dylan Jeffrey MIDDLETON, Defendant-Appellant.

A166299

Court of Appeals of Oregon.

Argued and submitted March 14, 2019.

February 20, 2020

Kevin T. Lafky, Salem, argued the cause for appellant. Also on the briefs was Leslie D. Howell.

Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.^*

AOYAGI, J.

Defendant was stopped by a police officer after the officer saw defendant and his roommate drive past a truck in a ditch. Defendant admitted to the officer that the truck in the ditch was his. He was subsequently convicted of driving under the influence of intoxicants (DUII), ORS 813.010. On appeal, defendant argues that the trial court erred in denying his motion to suppress evidence obtained in violation of Article I, section 9, of the Oregon Constitution.¹ The state responds that the trial court correctly denied the motion because defendant was not seized, or, if he was, the seizure was lawful because the police reasonably believed that defendant was a material witness to a crime or reasonably suspected that defendant had committed a crime. We conclude that the trial court erred in denying defendant's motion and, accordingly, reverse and remand.

I. FACTS

We review the denial of a motion to suppress for legal error. State v. Miller , 267 Or. App. 382, 383, 340 P.3d 740 (2014). In doing so, we rely on the trial court's findings of historical fact as long as there is constitutionally sufficient evidence to support them. State v. Evans , 284 Or. App. 806, 811, 397 P.3d 42 (2017). We state the facts in accordance with that standard of review.

At 2:55 a.m. on a February night, Trooper Kolacz of the Oregon State Police was patrolling Highway 101 when he came across a single-vehicle accident. Kolacz saw a truck angled nose-down in a swampy ditch on the west side of Highway 101, near the intersection of Highlands Lane, a side street that led into a residential area. Given the time of night, the lack of obstacles or animals in the roadway, and it being a single-vehicle accident, Kolacz suspected DUII or reckless driving. A car was parked nearby, with its hazard lights on, and two men were standing by the car. Kolacz turned on his overhead lights and pulled over.

Kolacz got out of his patrol car and called out to the two men. As he walked toward them, they exchanged a few words, which led Kolacz to believe that they were not involved in the accident.² Just then, Kolacz saw a truck approaching from about 200 to 500 feet away. It came from a side street, turned onto Highlands Lane, and then turned onto Highway 101. As the truck reached the intersection with Highway 101, Kolacz made two "wave-type" hand gestures, which the trial court described as "not dramatic." Both the driver and the passenger kept their faces forward and did not look at the accident scene or acknowledge Kolacz. The trial court appears to have found that, because they "had their heads facing forward and were oblivious to or intentionally ignoring the scene," they did not notice Kolacz's hand gestures.³

Kolacz immediately formed a subjective belief that the truck's occupants were "involved" in some way with the accident. He based that belief on the scarcity of traffic in the area at that time of night and the fact that the truck's occupants did not look at the accident scene or acknowledge him as they passed by. In Kolacz's experience, at accident scenes, "as much as you want [passersby] to kind of continue to go through, everybody wants to kind of looky-look and always check out the crash," so it was very unusual for the truck's occupants not to look at the scene. Instead, they "kind of dead-stared ahead," while the driver had both hands "gripped on the wheel kind of firmly."

Kolacz quickly got into his patrol car and pursued the truck with his overhead lights on. The driver of the truck did not commit any traffic violations. When Kolacz caught up with the truck, it pulled over, and Kolacz got out of his patrol car. Training his flashlight through the back window, Kolacz approached the passenger side, where defendant was sitting, and stood outside the passenger door. Kolacz asked, "Hey how's it goin'?" and then said something else that is inaudible on the dash-cam video recording and about which no one testified. Defendant promptly stated that the truck in the ditch was his. Both defendant and the driver—who identified himself as defendant's roommate—denied having seen Kolacz make a hand gesture near the accident scene. Kolacz observed signs of possible intoxication on defendant's part, particularly bloodshot eyes and the smell of alcohol. He eventually arrested defendant, who was later charged with one count of DUII.

Before trial, defendant moved to suppress the evidence obtained after Kolacz pulled over the truck. He argued that Kolacz had stopped and seized him without reasonable suspicion that he had committed a crime, in violation of Article I, section 9. The state opposed the motion on various grounds.

The trial court denied the motion to suppress. Relying on State v. Holmes , 311 Or. 400, 813 P.2d 28 (1991), abrogated in part on other grounds by State v. Ashbaugh , 349 Or. 297, 316, 244 P.3d 360 (2010), and State v. Gerrish , 311 Or. 506, 815 P.2d 1244 (1991), the court concluded that the encounter was not a seizure. It reasoned that, "[g]iven the time of night and the rarity of traffic, any vehicle driving in the vicinity may have seen or heard something and could potentially be a witness." As such, the court considered it "entirely reasonable" for Kolacz to want to talk to the truck's occupants when the truck approached the intersection. However, the truck's occupants did not look at him, and there was "no time" to "hail" them or "otherwise command them to stop," so Kolacz did "the only safe and reasonable thing," which was to follow them and use his lights to " ‘flag’ them down and get their attention." Under the circumstances, the court concluded, "defendant's freedom was not significantly restricted," and he was not seized. Alternatively, the court ruled that, if defendant was seized, the seizure was lawful because Kolacz had reasonable suspicion that defendant had committed the crime of DUII or reckless driving.

Defendant entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress, and was thereafter convicted of DUII.

II. ANALYSIS

On appeal of the judgment of conviction, defendant assigns error to the denial of his motion to suppress, reiterating the arguments that he made below. The state responds in three ways. Primarily, the state argues that the trial court correctly concluded that defendant was not seized under Holmes and Gerrish . Secondarily, the state argues that, if defendant was seized, it was a lawful stop because defendant was a "material witness" under State v. Fair , 353 Or. 588, 609, 302 P.3d 417 (2013). Lastly, the state cursorily defends the trial court's ruling that Kolacz reasonably suspected that defendant had committed a crime. We address each of the three arguments in turn.

A. Was it a seizure?

The first question is whether Kolacz seized defendant. "We long have recognized that, out of the broad range of potential encounters between police and citizens, only some implicate the prohibition in Article I, section 9, against unreasonable ‘seizures.’ " Ashbaugh , 349 Or. at 308, 244 P.3d 360.

"Analytically, police-citizen encounters typically fall into one of three categories that correlate the degree of intrusiveness on a citizen's liberty with the degree of justification required for the intrusion." Fair , 353 Or. at 593, 302 P.3d 417. Those categories are: (1) mere conversations, (2) stops, and (3) arrests. Ashbaugh , 349 Or. at 308-09, 244 P.3d 360. A "mere conversation" is a "non-coercive encounter" that does not involve "any" restraint on the person's liberty or freedom of movement. State v. Arreola-Botello , 365 Or. 695, 701, 451 P.3d 939 (2019) ; see also Ashbaugh , 349 Or. at 307, 317, 244 P.3d 360 (holding that citizen was engaged in "mere conversation" with police officer once she "was free to leave" and when the atmosphere would not convey to a citizen "that she was not free to go"). "Stops" are temporary detentions for investigatory purposes; they impose a "temporary restraint on a person's liberty," constitute a seizure, and generally require reasonable suspicion of a crime or probable cause that a driver has committed a traffic violation. Ashbaugh , 349 Or. at 308-09, 244 P.3d 360; State v. Rodgers/Kirkeby , 347 Or. 610, 623, 227 P.3d 695 (2010) ; see also State v. Brown , 293 Or. App. 772, 779, 427 P.3d 221 (2018) (defendant was stopped because the "overall context of the contact" conveyed that she was "not free to leave"). "Arrests" involve "restraints on an individual's liberty that are steps toward charging individuals with a crime," constitute a seizure, and require probable cause. Ashbaugh , 349 Or. at 309, 244 P.3d 360.

Under current law, the test for whether an encounter is a "seizure" is whether the officer "intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement," or whether "a reasonable person under the totality of the circumstances would believe that [that] has occurred." Fair , 353 Or. at 594, 302 P.3d 417. "In applying that standard, we look to whether the encounter entailed a significant restraint on defendant's liberty imposed either by physical force or through some show of authority." Id . (internal quotation marks and brackets omitted).

In this case, it is undisputed that Kolacz acted in a manner that, in most circumstances, would constitute a seizure, specifically a "stop." Driving a marked...