State v. Nagel

• Decision Date: 09 September 1994
• Citation: 320 Or. 24,880 P.2d 451
• Parties: STATE of Oregon, Respondent on Review, v. Jeffrey Dean NAGEL, Petitioner on Review. DC 91-3459; CA A76823; SC S40605.
• Court: Oregon Supreme Court

Page 451

880 P.2d 451

320 Or. 24

STATE of Oregon, Respondent on Review, v. Jeffrey Dean NAGEL, Petitioner on Review.

DC 91-3459; CA A76823; SC S40605.

Supreme Court of Oregon In Banc.

Argued and Submitted April 19, 1994.

Resubmitted May 27, 1994.

Decided Sept. 9, 1994.

James N. Varner, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the petition and a response to the Court's questions was Sally L. Avera, Public Defender.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response to the Court's questions were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

CARSON, Chief Justice.

The central issue in this case is whether the administration of field sobriety tests violated defendant's right to be free from unreasonable searches and seizures under Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the Constitution of the United States.

The following statement of facts is uncontroverted. In August 1991, at a time of day when headlights were required by law to be illuminated, a Lincoln County Deputy Sheriff saw defendant driving his automobile on a public road, with only one headlight illuminated. The officer turned his automobile around and put on his overhead lights. Defendant immediately pulled his automobile to the side of the road. The officer testified at the suppression hearing that, when he asked defendant for his driver license, he noticed that defendant's breath smelled strongly of alcohol and that defendant's eyes were "very bloodshot and glassy." The officer also testified that defendant had difficulty removing his license from his wallet, even though the license was clearly visible to the officer. The officer asked defendant how much he had had to drink. Defendant responded, "none."

The officer testified that he then told defendant that he wanted to administer field sobriety tests. He asked defendant to get out of his automobile, and he read defendant the statutory consequences for refusing to perform field sobriety tests. ¹ See ORS 813.136 (if a person refuses or fails to submit to field sobriety tests as required by ORS 813.135, evidence of the refusal is admissible in any proceeding arising from allegations that the person was driving while intoxicated).

The officer had defendant perform the following five field sobriety tests. First, the officer asked defendant to recite the alphabet from A to Z. After stopping once and starting over, defendant satisfactorily completed that test. Second, the officer asked defendant to count backward from 107 to 87. Defendant started over twice but never completed that test. Third, the officer asked defendant to stand on one leg with either foot about six inches off the ground. The officer asked defendant to count, with his leg still off the ground, from 1001 to 1030. Defendant started the test three times and never completed the test, stating that he was unable to complete it. Fourth, the officer asked defendant to walk in a straight line, touching heel to toe, for nine steps, and then to turn around and walk back the same way. Defendant did not touch heel to toe on any of the steps. Finally, the officer performed the "Horizontal Gaze Nystagmus" test, which the officer did not describe in his testimony. ² The officer testified that he had conducted the field sobriety tests to "[t]est [defendant's] coordination, his hand-eye coordination, his memory, [and] his ability to [perform] divided attention tests."

After defendant completed the field sobriety tests, the officer arrested defendant for driving under the influence of intoxicants (DUII). ³ The officer testified that he would have arrested defendant for DUII even if defendant had refused to submit to the field sobriety tests.

Before trial, defendant moved to suppress all evidence derived from the field sobriety tests, arguing that the tests violated his right to be free from unreasonable searches and seizures under Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the Constitution of the United States. ⁴

The trial court denied defendant's motion to suppress. After a trial to the court on stipulated facts, the trial court found defendant guilty of DUII and sentenced him to three years probation with several general and specific conditions. Defendant appealed his conviction to the Court of Appeals. The Court of Appeals affirmed defendant's conviction from the bench without opinion. State v. Nagel, 122 Or.App. 638, 858 P.2d 181 (1993).

We allowed defendant's petition for review and affirm the decision of the Court of Appeals.

We first turn to defendant's argument that the administration of field sobriety tests violated his right to be free from unreasonable searches and seizures under Article I, section 9, of the Oregon Constitution. See State v. Rodriguez, 317 Or. 27, 32, 854 P.2d 399 (1993) ("Before addressing defendant's claims under the federal constitution, we address defendant's claims under the state constitution."). Article I, section 9, of the Oregon Constitution, provides:

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

In conducting an Article I, section 9, inquiry, we first ask whether the police conduct at issue was a search or a seizure. Article I, section 9, protects the people from unreasonable search or seizure. If the police conduct at issue was not a search or a seizure, the constitutional protection does not apply, and it is of no moment that the conduct was "reasonable." We will not scrutinize police conduct for a factual justification, i.e., determine whether the conduct was "reasonable," unless we first have determined that the conduct is covered by Article I, section 9. As this court has stated:

"[Article I, section 9,] does not protect citizens from all forms of governmental observation, but only from unreasonable 'searches' (and seizures). It follows, therefore, that the threshold question in any Article I, section 9, search analysis is whether the police conduct at issue is sufficiently intrusive to be classified as a search." State v. Ainsworth, 310 Or. 613, 616, 801 P.2d 749 (1990). (Emphasis added.)

See also State v. Wacker, 317 Or. 419, 426, 856 P.2d 1029 (1993) ("If the police conduct is not a search within the meaning of Article I, section 9, this court will not reach the issue of whether the conduct was unreasonable.").

Under Article I, section 9, a search is "an intrusion by a governmental officer, agent, or employee into the protected privacy interest of an individual." State v. Rhodes, 315 Or. 191, 196, 843 P.2d 927 (1992). Unlike under the federal constitution, a search is not defined by a reasonable expectation of privacy, but in terms of "the privacy to which one has a right." State v. Campbell, 306 Or. 157, 164, 759 P.2d 1040 (1988). (Emphasis in original.)

In order to determine whether particular police conduct constitutes a search, "we must look to the nature of the act asserted to be a search." Id. at 170, 759 P.2d 1040. The test to determine whether police conduct rises to the level of a search is "whether the government's conduct 'would significantly impair an individual's interest in freedom from scrutiny, i.e., his privacy.' " State v. Wacker, supra, 317 Or. at 425, 856 P.2d 1029 (quoting State v. Dixson/Digby, 307 Or. 195, 211, 766 P.2d 1015 (1988)). We must decide "whether the practice, if engaged in wholly at the discretion of the government, will significantly impair 'the people's' freedom from scrutiny." State v. Campbell, supra, 306 Or. at 171, 759 P.2d 1040.

This court's decision in Campbell is instructive in this case. In that case, the police attached a radio transmitter to the defendant's automobile and followed the movements of defendant's automobile both by a ground-based receiver and by an airplane. Id. at 160-61, 759 P.2d 1040. The court held that the use of the radio transmitter to follow the movements of the defendant's automobile was a search under Article I, section 9. Id. at 172, 759 P.2d 1040. In that case, the state argued that the defendant did not have a right of privacy in the movements of his automobile because his automobile was in places open to public view. Id. at 165, 759 P.2d 1040. This court rejected that argument stating that "[w]hether police conduct is a search does not turn on whether its object could be discovered by conduct that is not a search." Id. at 167, 759 P.2d 1040. The court focused on whether the police conduct was sufficiently intrusive to "significantly impair 'the people's' freedom from scrutiny." Id. at 171, 759 P.2d 1040. The court held that the "use of a radio transmitter to locate an object to which the transmitter is attached cannot be equated with visual tracking." Id. at 171-72, 759 P.2d 1040.

In this case, the officer directed defendant to recite the alphabet from A to Z. The officer next directed defendant to count backward from 107 to 87. The officer also instructed defendant to stand on one leg with his foot about six inches off the ground while counting from 1001 to 1030. Finally, the officer required defendant to walk in a straight line, touching heel to toe, for nine steps, and then to turn around and walk back the same way.

By requiring defendant to perform a series of unusual maneuvers and acts, the officer was able to detect certain aspects of defendant's physical and psychological condition that were not detectable through simple observation by any member of the public or by a police officer located in a public place. ⁵ As with the use of the radio transmitter, the officer in this case created an unusual situation in which h...