State v. Spruill, 95-4481-C

• Decision Date: 22 October 1997
• Docket Number: No. 95-4481-C,95-4481-C
• Citation: 151 Or.App. 87,948 P.2d 726
• Parties: STATE of Oregon, Appellant, v. David SPRUILL, Respondent. ; CA A93798.
• Court: Oregon Court of Appeals

Page 726

948 P.2d 726

151 Or.App. 87

STATE of Oregon, Appellant, v. David SPRUILL, Respondent.

No. 95-4481-C; CA A93798.

Court of Appeals of Oregon.

Argued and Submitted Dec. 20, 1996.

Decided Oct. 22, 1997.

Janet A. Klapstein, Assistant Attorney General, argued the cause for appellant. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Hari Nam S. Khalsa, Deputy Public Defender, argued the cause for respondent. With him on the brief was Sally L. Avera, Public Defender.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

ARMSTRONG, Judge.

Defendant was charged with driving under the influence of intoxicants (DUII). ORS 813.010. The state appeals an order granting defendant's motion to suppress evidence obtained by and resulting from defendant's performance of field sobriety tests. ORS 138.060(3). We reverse.

The following evidence was introduced at the hearing on defendant's motion to suppress: At approximately 1:00 a.m. on October 12, 1995, Ashland Police Officer Bailey stopped defendant because the license tags on his pickup truck had expired. When Bailey turned the overhead lights on her patrol car on, defendant immediately pulled over, abruptly got out of his truck and approached her. Bailey testified that that reaction to getting pulled over was "very uncommon" and made her "observation [of defendant] a little more heightened and alert." She testified:

"As soon as we met face to face, he immediately started talking and explaining. He talked about how he had just purchased the truck, he was trying to re-register it.

He was talking quite rapidly at that point, without much prompting."

The prosecutor then asked Bailey if she had noticed any factors that had led her to believe that defendant had been drinking. She responded:

"I did. As soon as we were speaking, I could smell on his breath * * * an odor of an alcoholic beverage[.] He also appeared to be somewhat distracted. He would lose his train of thought and not answer my questions directly when we were talking."

Bailey stated that it was a mild-to-moderate odor of alcohol on defendant's breath. She asked defendant directly if he had been drinking. He said that he "had been drinking since about eight o'clock that night." At that point, Bailey "was convinced that defendant was impaired." She testified that, based on her "experience and training" as a police officer, she concluded that she had probable cause to believe defendant was driving under the influence of intoxicants and she asked him to perform field sobriety tests. After defendant performed the tests, Bailey arrested him for driving under the influence of intoxicants.

Before trial, defendant moved to suppress any evidence obtained by and resulting from defendant's performance of field sobriety tests. Defendant argued that Bailey conducted an unlawful search under Article I, section 9, of the Oregon Constitution when she administered the field sobriety tests. The state conceded that Bailey had conducted a search but argued that the search was justified by probable cause and exigent circumstances. The trial court concluded that Bailey did not have probable cause before she administered the field sobriety tests because, although she subjectively believed that she had probable cause, that belief was not objectively reasonable. Therefore, it granted defendant's motion to suppress. The state appeals.

The state conducts a search under Article I, section 9, of the Oregon Constitution when it requires a person to perform field sobriety tests. Winroth v. DMV, 140 Or.App. 622, 625, 915 P.2d 991 (1996); see also State v. Nagel, 320 Or. 24, 31, 880 P.2d 451 (1994). As a consequence, before conducting those tests, the state must have a warrant or the search must come within one of the recognized exceptions to the warrant requirement. See State v. Paulson, 313 Or. 346, 351, 833 P.2d 1278 (1992). On appeal, the state argues that Bailey's request that defendant perform field sobriety tests was proper because it was made after she had probable cause to believe that defendant was driving under the influence of intoxicants and under exigent circumstances, a recognized exception to the warrant requirement. See State v. Moylett, 313 Or. 540, 548, 836 P.2d 1329 (1992).

Probable cause exists when an officer subjectively believes that a crime has been committed and that belief is objectively reasonable in the circumstances. State v. Owens, 302 Or. 196, 204, 729 P.2d 524 (1986). The belief must be that it is more likely than not that a crime has been committed. State v. Chambless, 111 Or.App. 76, 80, 824 P.2d 1183, rev. den. 313 Or. 210, 830 P.2d 596 (1992). Therefore, to establish that Bailey had probable cause, the state had to show that, before administering the field sobriety tests, Bailey subjectively believed that it was more likely than not that defendant was perceptibly impaired due to the consumption of alcohol and that that belief was objectively reasonable. ORS 813.010. On appeal, defendant does not contest the trial court's ruling that Bailey held the requisite subjective belief. Therefore, the only issue presented is whether that belief was objectively reasonable. ¹ In making that determination,

"[w]e look at the totality of the facts and circumstances, not isolated facts. Acts that might be viewed as innocent or equivocal to a lay person may be incriminating when viewed by a trained, experienced police officer."

State v. Mendoza, 123 Or.App. 237, 241, 858 P.2d 1350 (1993).

We...