State v. Miller

• Decision Date: 26 July 2018
• Docket Number: CC 110646662 (CA A149963) (SC S064136)
• Parties: STATE of Oregon, Petitioner on Review, v. William P. MILLER, Respondent on Review.
• Court: Oregon Supreme Court

363 Or. 374

422 P.3d 240

STATE of Oregon, Petitioner on Review,

v.William P. MILLER, Respondent on Review.

CC 110646662 (CA A149963) (SC S064136)

Supreme Court of Oregon.

Argued and submitted October 19, 2017

July 26, 2018

Jamie K. Contreras, Assistant Attorney General, Salem, argued the cause and filed the brief for the petitioner on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Kali Montague, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for the respondent on review. Also on the brief was Ernest Lannet, Chief Defender.

Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn, and Nelson, Justices.^**

FLYNN, J.

The issue in this criminal case is whether a law enforcement officer, who was lawfully investigating whether defendant had been driving under the influence of intoxicants (DUII), unlawfully extended the investigatory stop by asking if defendant was carrying a firearm. In response to that question, defendant disclosed that he was carrying a knife, which led to his conviction for carrying a concealed weapon, ORS 166.240(1). Defendant contends that the officer's question unlawfully extended the stop because, the officer lacked an objectively reasonable, circumstance-specific perception that defendant posed a danger, as required by Article I, section 9, of the Oregon Constitution. See State v. Jimenez , 357 Or. 417, 353 P.3d 1227 (2015) (describing standard). The Court of Appeals agreed with defendant and reversed his conviction, emphasizing that nothing about defendant's conduct during the encounter gave the officer a reason to be concerned for his safety.

We allowed the state's petition for review of that decision and now reverse. We held in Jimenez that the constitutional standard for an officer to ask a lawfully detained citizen about weapons is less demanding than the particularized reasonable suspicion that Article I, section 9, requires before the officer may search the citizen for weapons. 357 Or. at 427-28, 353 P.3d 1227. Article I, section 9, does not prohibit law enforcement officers from asking about the presence of weapons during a lawful stop if (1) "the officer perceived a circumstance-specific danger and decided that an inquiry about weapons was necessary to address that danger;" and (2) "the officer's perception and decision were objectively reasonable." Id. at 430, 353 P.3d 1227. We conclude that the officer in this case perceived a circumstance-specific of danger, within the meaning of Jimenez , based on his explanation of the risk of performing late-night field sobriety tests on a person whom the officer reasonably suspected was intoxicated. We also conclude that the state met its burden to prove that the officer's perception of danger and decision that a question about firearms was necessary were objectively reasonable.

I. FACTUAL AND PROCEDURAL BACKGROUND

In reviewing the trial court's denial of defendant's motion to suppress, we are bound by the court's findings of historical fact if the evidence in the record supports them. State v. Holdorf , 355 Or. 812, 814, 333 P.3d 982 (2014). To the extent that the trial court failed to make express findings on pertinent historical facts, we will presume that the trial court found those facts in a manner consistent with its ultimate conclusion. Id. In this case, the pertinent historical and procedural facts are undisputed, except as indicated.

While defendant was driving late one night, a law enforcement officer¹ saw defendant's car hesitate before proceeding on a green light and then pull off to the side of the road. The officer pulled his marked patrol car in behind defendant's car and asked if defendant needed assistance. Based on his initial encounter with defendant, the officer developed reasonable suspicion that defendant had committed the crime of DUII. The officer asked defendant for his identification and returned to his own car to conduct a records check.

The officer walked back to defendant and asked if he had a firearm with him.² In response, defendant indicated that he "had a knife on his boot, or leg." The officer removed two knives from defendant's boot. The officer then administered field sobriety tests to defendant. He ultimately determined that defendant was not intoxicated but cited defendant for carrying a concealed weapon in violation of ORS 166.240(1).³

Defendant moved to suppress the evidence that the officer had obtained as a result of his question about weapons. Defendant argued to the trial court that the officer's question had unlawfully extended the stop because the officer did not possess a "reasonable suspicion, based upon specific and articulable facts," that defendant posed an "immediate threat of serious physical injury." In support of that argument, defendant elicited testimony from the officer that nothing about defendant's conduct during the encounter had caused the officer to be concerned for his safety:

"[Defense Counsel:] So he had done absolutely nothing to give you concern that he might attack you at this point, had he?

"[Officer:] No, sir.

"[Defense Counsel:] In fact, he was being civil and cooperative with you, wasn't he?

"[Officer:] Yes, sir.

"[Defense Counsel:] Not threatening or angry, combative in any way?

"[Officer:] That is correct."

The trial court concluded that the officer had asked a reasonable question "from the standpoint of officer safety" and denied defendant's motion. Defendant entered a conditional guilty plea to carrying a concealed weapon, but reserving his right to appeal the trial court's denial of his motion to suppress. See ORS 135.335(3) (providing that a defendant may reserve the right to appeal from a conditional plea of guilty or no contest).

While the case was pending before the Court of Appeals, this court decided Jimenez , 357 Or. 417, 353 P.3d 1227. Applying the standard articulated in Jimenez , the Court of Appeals concluded that the officer had lacked a reasonable circumstance-specific concern that defendant posed a danger and, accordingly, reversed and remanded the judgment of conviction. That court primarily relied on the evidence that nothing about defendant's conduct during the stop had contributed to a perception of danger. State v. Miller , 277 Or. App. 147, 154-55, 370 P.3d 882 (2016).

II. DISCUSSION

We allowed the state's petition for review to consider whether the state proved that the officer perceived an objectively reasonable, circumstance-specific danger that justified the weapons inquiry, despite his acknowledgment that defendant's conduct during the stop was not threatening. Before addressing the parties' arguments, we begin with some general—but critical—constitutional context.

A. Overview of Pertinent Constitutional Principles

Article I, section 9, of the Oregon Constitution establishes a right of the people to be "secure in their persons, houses, papers, and effects, against unreasonable search, or seizure." For purposes of evaluating whether an encounter with law enforcement implicates an individual's rights under Article I, section 9, this court has identified three general categories of encounter: encounters that involve "mere conversation," which are not considered a "seizure" for purposes of Article I, section 9 ; " ‘stops,’ " which involve "a temporary restraint on a person's liberty"; and " ‘arrests’[,] which are restraints on an individual's liberty that are steps toward charging individuals with a crime[.]" State v. Ashbaugh , 349 Or. 297, 308–09, 244 P.3d 360 (2010) (quoting State v. Rodgers/Kirkeby , 347 Or. 610, 621-22, 227 P.3d 695 (2010) ). An officer may stop a person to investigate a crime, without violating Article I, section 9, if the officer has "reasonable suspicion" that the person has committed or is about to commit a crime. Holdorf , 355 Or. at 823, 333 P.3d 982.

There is no dispute that, at the time when the officer asked about the presence of firearms, the encounter between defendant and the officer was a "stop" for purposes of the Article I, section 9, analysis, and there is no dispute that the officer possessed the reasonable suspicion necessary to justify the stop for purposes of investigating whether defendant had committed the crime of DUII. That reasonable suspicion to justify the investigatory stop, however, also defined the constitutionally permissible boundaries of the stop. See , e.g. , State v. Watson , 353 Or. 768, 781, 305 P.3d 94 (2013) (explaining that Article I, section 9, requires that, when law enforcement officers have a justification for stopping a person to conduct an investigation, the officer's activities must "be reasonably related to that investigation and reasonably necessary to effectuate it").

As we emphasized in Jimenez , "when an officer has seized an individual and has a constitutional basis to continue to temporarily detain and question him or her," the officer may ask questions that are "reasonably related to and reasonably necessary to effectuate" the officer's investigation. Jimenez , 357 Or. at 429, 353 P.3d 1227. However, when the officer asks a question that is not reasonably related to the reason for the stop, the question extends the stop, and Article I, section 9, requires that there be an independent basis to justify the extension. State v. Pichardo , 360 Or. 754, 762, 388 P.3d 320 (2017).⁴

B. Jimenez's Standard for Determining Whether a Question About Weapons is Reasonably Related to the Reason for the Stop

In Jimenez , a state trooper stopped the defendant after noticing the defendant cross the street against a "Don't Walk" sign, engaged the defendant in a brief conversation about why he crossed against the light, and then asked if the defendant had any weapons on him. 357 Or. at 419-20, 353 P.3d 1227. The key issue that this court addressed in Jimenez was how to determine if the trooper's question about weapons unlawfully extended the stop. We concluded that the test for...