State v. Nichols

• Decision Date: 04 March 2015
• Docket Number: A151058.,D113550T
• Citation: 269 Or.App. 429,345 P.3d 468
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Burton Lee Asker NICHOLS, Defendant–Appellant.
• Court: Oregon Court of Appeals

269 Or.App. 429

345 P.3d 468

STATE of Oregon, Plaintiff–Respondent

v.Burton Lee Asker NICHOLS, Defendant–Appellant.

D113550T

A151058.

Court of Appeals of Oregon.

Argued and Submitted Jan. 30, 2014.

Decided March 4, 2015.

Elizabeth G. Daily, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Michael Seung Moak Shin, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jake J. Hogue, Assistant Attorney General.

Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and DE MUNIZ, Senior Judge.

Opinion

ARMSTRONG, P.J.

Defendant appeals his judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. He argues that the trial court erred in denying his motion to suppress evidence because the police officer who stopped him lacked reasonable suspicion that he was committing DUII and, hence, the officer violated Article I, section 9, of the Oregon Constitution¹ and the Fourth Amendment to the United States Constitution² by stopping him. We conclude that, under the totality of the circumstances observed and articulated by the officer, the officer's stop of defendant was justified by reasonable suspicion. Accordingly, we affirm.

We review a trial court's denial of a suppression motion for legal error, and defer to the trial court's findings of fact when there is sufficient evidence in the record to support them. State v. Bertha, 256 Or.App. 375, 378, 300 P.3d 265 (2013). In the absence of express findings, we assume that the trial court resolved any factual disputes consistently with its ultimate conclusion. Id. In accordance with that standard, the pertinent facts are as follows.

Around 2:00 p.m., Washington County Sherriff's Deputy Braun was near a pub responding to an unrelated call. Braun is a field-training officer and a field sobriety test (FST) instructor, with significant training and experience identifying signs of intoxication and handling DUII stops. While on the original call, he went into the pub to speak to a patron and noticed two loud, boisterous women sitting in a patio area who appeared to be intoxicated. After Braun left the pub, he was standing with other officers in the parking lot area away from the pub. Braun saw the two intoxicated women from the pub leave and head toward a vehicle, when defendant came out to join them. The two women were “very intoxicated” and “appeared to be almost falling down” when they got into the vehicle. Defendant followed them over to the vehicle with “slow and deliberate” steps that “did not appear to be fluid and natural” and, upon reaching the vehicle, he kept touching it with his hand. Braun testified in response to the prosecutor's questions about defendant's movement:

“I just remember it was very unusual. It wasn't like he was dragging his hand down the length of the vehicle as if to orient himself with in the world. But it was just more like a motion as if to verify, ‘Hey, this is still here. This is still here. This is still here.’

“Q Almost as if steadying himself?

“A No. Almost as if you're walking down a hall at night and you're just trying to make sure the wall is still there, just kind of, ‘Okay, I know where I am in the hallway just by the position of the wall.’ ”

Defendant then got into his vehicle, which was partially blocked in by a semi-truck. Braun testified that defendant could have come out with “a three- or four-point turn.” Instead of trying to leave, defendant waited in his vehicle. After “a while,” the semi-truck driver finished loading his truck and honked his horn before backing up. Defendant honked his horn in return. Defendant then backed out without difficulty and began driving down the center of a two-way driving lane in the parking lot, blocking both lanes, instead of toward the right side where a painted line on the right-hand side of the driving lane indicated where to stop before proceeding out of that section of parking. After driving about 20 feet, Braun, who was in uniform, walked over and flagged defendant to stop. Defendant started to drive away, so Braun flagged him down again, and defendant stopped while still within the parking lot. Braun testified that he found defendant's touching of the vehicle and driving down the middle of the lane “alarming,” because it indicated that defendant's spatial recognition was impaired.

The trial court denied defendant's motion to suppress evidence obtained from Braun's stop. The court readily found that Braun had a subjective belief that he had reasonable suspicion to justify a stop; the question was whether that belief was objectively reasonable. On that point, the trial court concluded, based on the totality of the circumstances, that it was, even though each piece of information relied on by Braun individually would not have been enough to create reasonable suspicion of DUII.

The Oregon Supreme Court has recently resummarized Oregon case law on reasonable suspicion to support an investigatory stop:

“The people have a liberty interest to be free from unreasonable searches and seizures that is protected by provisions of the Oregon and federal constitutions. The standard of ‘reasonable suspicion’ justifying a police intrusion on that liberty interest when a person is stopped was intended to be less than the standard of probable cause to arrest. A stop is unlawful unless it meets an objective test of reasonableness based on observable facts. Officer intuition and experience alone are not sufficient to meet that objective test. However, if an officer is able to point to specific and articulable facts that a person has committed a crime or is about to commit a crime, the officer has a ‘reasonable suspicion’ and may stop the person to investigate.”

State v. Holdorf, 355 Or. 812, 822–23, 333 P.3d 982 (2014).

The “specific and articulable facts” on which Braun relied were that (1) defendant left the pub in the company of two very intoxicated women, (2) defendant walked in a “slow and deliberate” manner that did not appear fluid or natural, (3) defendant touched his vehicle with his hand repeatedly as if to orient himself spatially, (4) defendant waited for the semi-truck to pull out and gave it a return honk, and (5) after defendant pulled out, he drove down the center of a two-way driving lane.

Defendant argues that, because there was a noncriminal explanation for all of his conduct, Braun's observations, whether taken individually or collectively, were insufficient to give rise to an objectively reasonable suspicion that he was driving under the influence of intoxicants. In making his argument, defendant picks apart each of the identified facts and provides an “innocent” explanation for them. However, as the Supreme Court has instructed, that is not the approach that we are required to take in determining if an officer had reasonable suspicion for a stop. Instead, our “judicial review looks to the totality of the circumstances confronting a police officer.” Holdorf, 355 Or. at 824, 333 P.3d 982.

Although defendant is correct that merely being in the company of visibly intoxicated people while leaving a pub would be insufficient by itself to establish reasonable suspicion in this case, that fact is nonetheless part of the totality of the circumstances that Braun confronted and that we must thus consider. See id. (rejecting analysis that rejected any information pointing to criminal activity not relating to “defendant himself” and reiterating that our review looks to the totality of the circumstances and “not just those circumstances that directly relate to a suspect or are personally observed by the police officer stopping a suspect”). Here, it was the two intoxicated women who appeared to be going to a car, without defendant, that drew Braun's attention in...