State v. Newton

• Decision Date: 14 June 2017
• Docket Number: A157145
• Citation: 398 P.3d 390,286 Or.App. 274
• Parties: STATE of Oregon, Plaintiff-Appellant, v. Lance Paul NEWTON, Defendant-Respondent.
• Court: Oregon Court of Appeals

286 Or.App. 274

398 P.3d 390

STATE of Oregon, Plaintiff-Appellant,

v.Lance Paul NEWTON, Defendant-Respondent.

A157145

Court of Appeals of Oregon.

Argued and submitted December 16, 2015.

June 14, 2017

David B. Thompson, Assistant Attorney General, Portland, argued the cause for appellant. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Morgen E. Daniels, Deputy Public Defender, argued the cause for respondent. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge pro tempore.

FLYNN, J. pro tempore.

The state appeals from a trial court order suppressing evidence that the state obtained after an officer walked up a private driveway late at night and questioned defendant and his girlfriend, who were sitting in a parked van. The state challenges the trial court's conclusion that defendant was stopped for the purposes of Article I, section 9, of the Oregon Constitution at any point before the officer developed reasonable suspicion that defendant had committed a crime. We conclude that the trial court's findings support its conclusion that, under the totality of the circumstances, defendant was stopped after the officer asked defendant to produce identification, asked his girlfriend if she was all right and if she would get out of the van, and then stood behind the van while he questioned defendant's girlfriend and ran a check on defendant's identification. We also conclude that the state did not argue in the trial court that the officer possessed reasonable suspicion of a crime at that point and, thus, decline to reach the unpreserved argument. Accordingly, we affirm.

We review the trial court's ruling on a motion to suppress for legal error. State v. Maciel-Figueroa , 361 Or. 163, 165-66, 389 P.3d 1121 (2017). In conducting that review, "we are bound by the trial court's factual findings if there is any constitutionally sufficient evidence to support them." Id. To the extent that the trial court did not make express findings regarding disputed facts, we will presume that the court found the facts in a manner consistent with its ultimate conclusion, provided the evidence would support such findings. Id. at 166, 389 P.3d 1121. We describe the facts in a manner consistent with that standard of review.

I. FACTUAL BACKGROUND

In Grants Pass shortly after midnight, a call came in to dispatch from a convenience store employee to report that a woman who was crying and appeared to be intoxicated was seen arguing with a man in a van. The employee described the woman as "hysterical," described the man and the van, and reported that the woman had left in the van with the man driving. Officer Lewelling, responding to the call, learned that a woman, R, was the van's registered owner and went to her home address.

Lewelling arrived at the house, which was located in a residential neighborhood, "roughly ten minutes after the initial call." He saw the van parked in the private driveway of the house, with its "nose pointed towards the garage." Lewelling, who was wearing his uniform with a badge, parked his marked police cruiser on the street in a way that did not block the driveway, and he did not turn on his lights or sirens.¹ As he approached the van on foot, Lewelling saw that defendant was sitting in the driver's seat of the van with the window rolled down slightly, and that a woman, R, was sitting in the passenger seat, resting her head on defendant's chest. There was no indication that the two were arguing.

Lewelling could smell the odor of alcohol emanating from the inside of the van. He knocked on the drivers' side window and, using a tone of "concern," Lewelling asked R if she was all right. She responded that she was, and Lewelling noticed that she responded with slurred speech. Lewelling then asked defendant for his name and date of birth. Defendant handed Lewelling his Oregon ID card and, when defendant spoke, Lewelling noticed that "[h]e also had slurred speech."

Lewelling then asked R if she would be willing to "step out of the vehicle and chat" with him, and she agreed. Lewelling stood at the back of the van and "called in" defendant's information. Defendant could hear Lewelling speaking on "his walky talky behind the van." Lewelling began a conversation with R behind the van and, while the two were talking, Lewelling heard back from his identification check and learned that defendant had a "felony level suspension" of his driver's license. After he concluded his interview with R, including questions about whether defendant had been driving the van, Lewelling went to the driver's side door to contact defendant about the crime of driving a vehicle with a suspended license (DWS), ORS 811.182. Through that additional contact with defendant, Lewelling developed probable cause to arrest defendant for driving under the influence of intoxicants (DUII), ORS 813.010. The state charged defendant with both crimes.

II. PROCEDURAL BACKGROUND

Prior to trial, defendant filed a motion to suppress. Defendant's initial motion contended that Lewelling arrested him without probable cause. However, during the motion hearing, defendant's attorney became aware of facts that prompted her to ask the trial court for permission to expand the scope of her motion to include an argument that defendant had been stopped without reasonable suspicion at the point that Lewelling called in defendant's name and date of birth to dispatch. The court allowed defense counsel to proceed on this expanded basis and also allowed the parties to submit additional written arguments.

After considering the parties' post-hearing arguments, in which defendant urged the court to conclude that defendant was stopped under the totality of the circumstances, including Lewelling running "defendant's information through dispatch," the trial court granted defendant's motion. The court emphasized that Lewelling was questioning defendant's passenger, R, "behind the vehicle," and found, "at least during the time the passenger was outside the vehicle that the defendant was not free to start the vehicle and leave the driveway if for nothing else the safety of the passenger." Ultimately, the court concluded that, "under the totality of the circumstances," a reasonable person in defendant's position would believe he was being restrained. The court "suppress [ed] the evidence obtained against the defendant as a result of the stop without reasonable suspicion."

On appeal, the state asserts that the trial court "appears to have determined that Lewelling seized defendant for Article I, section 9 purposes at the point he stood with [R] behind the van."² The state argues that defendant was not stopped at that point and, alternatively, that a stop at that point was supported by reasonable suspicion that defendant had committed the crime of DUII. Defendant disagrees with both arguments. He also contends that the state did not preserve its alternative argument that Lewelling possessed reasonable suspicion of DUII at a point prior to when he recontacted defendant about driving while suspended.

III. ANALYSIS

Article I, section 9, of the Oregon Constitution protects against unreasonable searches and seizures. A person is "seized" for purposes of that constitutional provision: "(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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred." State v. Ashbaugh , 349 Or. 297, 316, 244 P.3d 360 (2010) (emphasis in original). However, " ‘[t]here potentially is an infinite variety of encounters between law enforcement officers and citizens [,]’ and ‘[n]ot every such encounter constitutes a ‘seizure’ of the citizen' for constitutional purposes."

State v. Fair , 353 Or. 588, 593, 302 P.3d 417 (2013) (quoting State v. Holmes, 311 Or. 400, 406-07, 813 P.2d 28 (1991) ). "At one end of the continuum are mere encounters for which no justification is required," while at the other end "are arrests, which involve protracted custodial restraint and require probable cause." Id. In the area between those two ends of the continuum lie "temporary detentions for investigatory purposes, often termed ‘stops,’ " which are seizures for constitutional purposes and generally require reasonable suspicion. Id.

A. General Principles Regarding the Line Between an Encounter and a Seizure

Unfortunately, "the line between a mere encounter and something that rises to the level of a seizure does not lend itself to easy demarcation." State v. Backstrand , 354 Or. 392, 399, 313 P.3d 1084 (2013) (internal quotation marks omitted). Nevertheless, a series of Supreme Court cases in recent years have sought to provide some definition to the line, and a few guiding principles have evolved from those cases. The first principle is that any inquiry into whether a particular encounter constitutes a seizure is necessarily "fact-specific and requires an examination of the totality of the circumstances involved." Id. The question for the court "is whether the circumstances as a whole transformed the encounter into a seizure," even if the circumstances, individually would not create a seizure. State v. Anderson , 354 Or. 440, 453, 313 P.3d 1113 (2013) ; see also State v. Charles , 263 Or.App. 578, 585, 331 P.3d 1012 (2014) (The "question is whether all of the officer's actions combine to form a whole greater than the sum of its parts.").

Another principle is that "the constitutional concern is with police-imposed restraints on citizen liberty, not with limiting contacts between police and citizens." Backstrand , 354 Or. at 400, 313 P.3d 1084. Police officers are " ‘free to approach persons on the street or in public places, seek their cooperation...