State v. Raymond
| Decision Date | 21 October 2015 |
| Docket Number | 211118438,A151090. |
| Citation | 274 Or.App. 409,360 P.3d 734 |
| Parties | STATE of Oregon, Plaintiff–Appellant, v. James Henry RAYMOND, Defendant–Respondent. |
| Court | Oregon Court of Appeals |
Matthew J. Lysne, Assistant Attorney General, argued the cause for appellant. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
David O. Ferry, Deputy Public Defender, argued the cause for respondent. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
The state appeals an order granting defendant's pre-trial motion to suppress urinalysis results, challenging, inter alia,the trial court's ruling that the exigency exception to the warrant requirement of Article I, section 9, of the Oregon Constitutiondid not excuse the warrantless procurement of a urine sample from defendant. SeeORS 138.060(1)(c)(authorizing state to appeal pretrial order suppressing evidence). We conclude that, because the circumstances under which the urine sample was procured were exigent, there is no state law basis for suppression of the urinalysis results. Furthermore, we decline to exercise our discretion to affirm the trial court's ruling on the alternative grounds that defendant presents on appeal. Accordingly, we reverse and remand.1
In reviewing a trial court's order on a motion to suppress, we are bound by its express and implicit factual findings that are supported by constitutionally sufficient evidence in the record. State v. Ehly,317 Or. 66, 75, 854 P.2d 421 (1993). Accordingly, the material facts, which are undisputed, are drawn from the parties' stipulated facts, which the trial court adopted, as well as the trial court's own findings.
At about 6:45 p.m. on August 1, 2011, Oregon State Police Trooper Bachmeier stopped defendant for failing to stop when pulling out of a Dairy Queen parking lot in Cottage Grove onto Highway 99. During the stop, defendant was “tapping his left food rapidly, grinding his teeth
, and contorting his face,” as well as “speaking rapidly and mumbling”—behavior Bachmeier understood to be consistent with central nervous system stimulant use. Based on those observations and defendant's subsequent poor performance on field sobriety tests (FSTs), Bachmeier concluded that defendant was impaired. Consequently, at 7:14 p.m., a half hour after initiating the stop, Bachmeier read defendant the Mirandawarnings and placed him under arrest.
After a 15–minute ride to the Cottage Grove Police Station, Bachmeier requested a drug recognition expert (DRE) evaluation of defendant. While awaiting the DRE officer's arrival, Bachmeier gave defendant the chance to make a phone call, which defendant declined. At one point, Bachmeier informed defendant that, if he cooperated, Bachmeier would give him a ride home later. Bachmeier also read defendant the statutorily prescribed implied consent warning, informing him of the rights and consequences associated with providing or refusing to provide a breath or blood sample. SeeORS 813.100and ORS 813.130. Defendant agreed to an Intoxilyzer, which revealed 0.00 percent blood alcohol content.
The DRE, Trooper Sether, arrived at the station at 8:04 p.m., and proceeded with the DRE protocol, designed to detect the probable source of defendant's impairment. After completing 11 of the 12 steps of the DRE protocol, Sether concluded that defendant was under the influence of a central nervous system stimulant. Sether then asked defendant if he would consent to a urine test, the twelfth and final step of the DRE protocol. Defendant, who believed that he had to fully cooperate with the DRE evaluation in order to go home that night, replied that he “[didn't] have to pee, but I can try if that's what you want me to do.” Shortly thereafter, defendant produced the urine sample. Bachmeier then drove defendant home.
The investigation, from the initiation of the traffic stop through the urine sample collection, lasted no more than three hours. Defendant, for his part, cooperated both because he had “nothing to hide” and because he thought that, “if [he] had refused [to give the urine sample,] they would have locked me up in jail.” The troopers did not display their weapons, nor did they make any threats or misleading statements to defendant.2
The urine sample later tested positive for methamphetamine, and defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.010. Before trial, the defense moved to suppress the urinalysis results, asserting that the warrant requirement had been violated and that no exception to that requirement applied.
As pertinent here, the defense contended that defendant's consent to the urinalysis “wasn't fully voluntary” and that “the situation was coercive” because defendant believed that, “if he cooperated[,] he would be able to go home, and get a ride home.” Defendant also asserted that the exigency and search incident to arrest exceptions to the warrant requirement did not excuse the failure to seek a warrant for the urine sample under the circumstances. Those arguments were all components of defendant's general assertion that no exception to the warrant requirement was applicable. Defendant did not argue that, even if circumstances were exigent for purposes of Article I, section 9, the manner of procurement of the urine sample somehow violated some other constitutional protection.
Defendant also raised the Fourth Amendment to the United States Constitution as a ground for suppression, albeit perfunctorily. The motion to suppress simply asserted that “[a]dmission of [the urinalysis] evidence would violate Defendant's rights under * * * the Fourth Amendment to the United States Constitution,” and, although the suppression memorandum quoted the Fourth Amendment and asserted that a Fourth Amendment violation had occurred, it did not advance any specific federal law arguments or authorities. Defense counsel made no federal law argument in the suppression hearing.3
In opposing defendant's motion to suppress, the state argued that the search was independently justified by multiple exceptions to the warrant requirement. Specifically, the state asserted that (1) in the totality of the circumstances, defendant's consent to providing the urine sample was fully voluntary; (2) the exigent circumstances exception separately justified the search, with the exigency being the dissipation of evidence of drugs from defendant's urine; and (3) the procurement of the urine sample was also justified as a search incident to arrest.
Thus, as framed by the parties' submissions and arguments, the dispute was straightforward: The state argued that several independently sufficient exceptions to the warrant requirement applied, and defendant countered, simply, that none was applicable.4
In addition, Sether testified about his experience with the warrant process for urine and blood tests
, which included drafting the warrant, contacting a district attorney to review it, and contacting a judge. According to Sether, the time it took to obtain a warrant depended on the circumstances. He estimated that the average time for obtaining a telephone warrant for urine testing was about two hours, but noted that common logistical delays, such as not being able to reach the district attorney or judge right away, could prolong things. In addition, Sether stated that transporting a suspect to a facility where the sample could be collected and conducting the first 11 steps of the DRE protocol before seeking a urine sample might prolong the time it took to actually procure one.
The trial court granted defendant's motion to suppress. In so ruling, it initially explained its reasoning as follows:
In response to the state's request for clarification of its exigency reasoning, the trial court explained that “the testimony as well as the stipulated facts indicated to me that there was sufficient time to get a warrant.”
After reopening the record in response to the state's motion for reconsideration, the trial court reiterated its findings and adhered to its ruling:
The trial court's suppression ruling was predicated solely on state constitutional grounds, without reference to the Fourth Amendment.5
On appeal, the state does not challenge the trial...
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