State v. Payne, 041421 ORCA, A167457
| Opinion Judge | KAMINS, J. |
| Party Name | STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL ALLEN PAYNE, Defendant-Appellant. |
| Attorney | David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Philip Thoennes, Assistant Attorney General, argued the cause for respondent. Also on the brief were... |
| Judge Panel | Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge. |
| Case Date | April 14, 2021 |
| Court | Oregon Court of Appeals |
Argued and Submitted May 6, 2020
Baker County Circuit Court 17CR84874; Gregory L. Baxter, Judge.
David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.
Philip Thoennes, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.
[310 Or.App. 673]
[310 Or.App. 674] KAMINS, J.
Defendant, a passenger in a vehicle that was stopped after eluding the police, appeals from a judgment of conviction after a jury trial for a number of crimes stemming from defendant's refusal to comply with an officer's order to remain at the scene of the stop, subsequent altercation with officers, and drugs that were recovered at the scene. Defendant contends that he was unlawfully seized at the outset of the encounter, meaning that the evidence obtained should have been suppressed and that he should have been acquitted of charges stemming from disobeying the order effectuating the unlawful seizure and the charges stemming from the subsequent physical altercation with the officers.[1] We conclude that defendant was lawfully seized when the vehicle in which he was a passenger was stopped and therefore affirm.
We review a trial court's denial of a motion to suppress for legal error, and we are bound by the trial court's findings of historical fact as long as there is constitutionally sufficient evidence in the record to support those findings. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). Similarly, we also review the denial of a motion for a judgment of acquittal for legal error, and we consider the facts in the light most favorable to the state and draw all reasonable inferences in the state's favor. State v. Lupoli, 348 Or. 346, 366, 234 P.3d 117 (2010). We begin with the operative facts, described with these standards in mind.
Baker City Police Officer Smith was on patrol at around 11:20 p.m. on December 23, 2017, when he noticed a car driving with an obscured license plate. Smith activated his overhead lights and attempted to stop the car, but, after slowing briefly, the car sped back up to between 30 and 35 miles per hour. Smith turned on his spotlight and sirens and pursued the car. Through the spotlight illuminating the [310 Or.App. 675] compartment, Smith could see defendant-the passenger in the car-making "very, very rapid movements," including a lot of movements around the floorboard, all around the side, and "leaning over towards the driver, yelling, talking, something like that, seemed very frantic." Smith drove up next to the vehicle as if performing a "pit maneuver" and motioned for the car to pull over. The car slowed down so Smith "backed off, thinking maybe they'd stop." Instead of stopping, however, the car again sped up. Smith attempted the same tactic, again pulling up and flanking the car, and again, the car slowed until Smith backed off, only to speed up again.
The pursuit lasted between one-third and three-fourths of a mile, at which point the car made a left turn off the main road into a large industrial site that Smith knew to be frequented by cars and campers occupied by people engaged in drug use. Smith followed as the car traveled between one-eighth and one-quarter of a mile down a long driveway, finally stopping in front of the shop and on the other side of a large log pile that hid the main road from view.
Smith testified that he was "very concerned" with the fact that the driver was "taking [him]" to this secluded site and he was "more concerned" with the passenger than the driver based on the passenger's frantic movements. He further testified that once a stop involves an attempt to elude the officer, it is no longer "routine." He had received training on the correlation between attempts to elude and officer shootings, and that the nature of an elude is inherently dangerous to an officer because the driver has already decided to disobey a police officer rather than stop and take a ticket. Consistent with this training, once the car stopped, Smith immediately got out of his car and held the car at gunpoint while he waited for the cover officer.2
At the same time that Smith drew his gun, defendant got out of the car. Smith ordered the driver and defendant [310 Or.App. 676] to stay where they were and show him their hands. The driver remained in the car and placed his hand on the window, but defendant refused and attempted to leave. Smith told defendant that he was under arrest and that he was being detained because he was "part of this felony incident." Defendant was angry and yelling at the officer while reaching back into the car to remove two bags. He took the bags and began walking away from the vehicle, in the direction of Smith's patrol car.
During this encounter, Baker County Sheriffs Deputy Maldonado arrived on the scene. When Maldonado attempted to handcuff defendant, defendant dropped the bags he was carrying and "square[d] off' with Maldonado. They struggled, and an altercation ensued. Police subsequently deployed a drug detection dog on the bags that defendant had dropped, and, after the dog alerted, obtained a search warrant and found 50 grams of methamphetamine in one of defendant's bags. Defendant was charged with interfering with a peace officer, ORS 162.247; third-degree escape, ORS 162.145; resisting arrest, ORS 162.315; fourth-degree assault, ORS 163.160; unlawful delivery of methamphetamine, ORS 475.890; and unlawful possession of methamphetamine, ORS 475.894.
Defendant moved to suppress all of the evidence derived from Smith stopping him, including his conduct at the scene and the drug evidence. Defendant argued that Smith did not have reasonable suspicion that he had committed or was about to commit a crime, that Smith had therefore seized him unlawfully, and that all evidence derived from that unlawful seizure must be suppressed. The trial court denied defendant's motion, concluding that the seizure was justified by the officer-safety doctrine and that "the second [defendant] begins to disobey that order, he's interfering with a peace officer and at that point he's subject to not only stop, but arrest."
At the close of the state's case, defendant moved for a judgment of acquittal on all six charged counts. To support that motion, he argued that the charges for interfering with a peace officer and escape require that the officer's orders and arrest, respectively, be lawful, and neither were. [310 Or.App. 677] The state relied on the officer-safety doctrine to establish the lawfulness of the officer's orders. The trial court denied defendant's motion, concluding that "a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt on all six matters."
On appeal, defendant assigns error to the denial of his motion to suppress and for judgment of acquittal. Defendant argues primarily that he was unlawfully seized when Smith first pointed his gun at the vehicle and ordered both defendant and the driver to remain with the vehicle and show their hands. As a result, defendant argues that he was entitled to a judgment of acquittal because the initial order Smith gave seizing him was not lawful so defendant did not commit interfering with a peace officer for disobeying it, or third-degree escape by attempting to leave the scene.
In response, the state argues that Smith's initial order seizing defendant was justified under the officer-safety doctrine and was therefore lawful. Assuming that the initial order was lawful, the state asserts that defendant's subsequent arrest was also lawful, that the evidence of defendant's conduct and the drugs found in his bag was properly admitted, and defendant was not entitled to a judgment of acquittal on the charge of either interfering with a peace officer or third-degree escape.
To resolve this issue, we must answer a threshold question: Was defendant lawfully seized? If the answer is yes, then the officer was authorized to order him not to leave and arrest him for refusing to comply. Defendant's decision to disobey that lawful order and leave the scene despite the officer's attempt to arrest him would constitute the crime of interfering with a peace officer and third-degree escape, justifying the denial of his motion for judgment of acquittal. If, however, the answer is no, then the denial of defendant's motion for judgment of acquittal may require reversal. See State v. Kreis, 365 Or. 659, 664, 677, 451 P.3d 954 (2019) (holding that an order that restrains an individual's liberty in violation of Article I, section 9, is not a "lawful order" for purposes of "the crime of interfering with a peace officer").
[310 Or.App. 678] Before we can answer even our threshold question, however, we must first cross another threshold: when was defendant seized in the first place? For purposes of Article I, section 9, of the Oregon Constitution, a seizure occurs when (1) a police officer intentionally and significantly interferes with an individual's liberty or freedom of movement; or (2) a reasonable person, under the totality of the circumstances, would believe that his or her liberty or freedom of movement has been significantly restricted. State v. Arreola-Botello, 365 Or. 695, 701, 451 P.3d...
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