State v. Thacker
| Citation | 264 Or.App. 150,331 P.3d 1036 |
| Decision Date | 02 July 2014 |
| Docket Number | A151384.,11C47914 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Stacey Lanell THACKER, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Pamela J. Walsh, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.
Defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.010, misdemeanor driving while suspended, ORS 811.182, and refusal to take a breath test, ORS 813.095. Defendant moved to suppress evidence on the ground that she was unlawfully stopped. After the trial court denied the motion, defendant entered a conditional guilty plea to all of the charged counts, reserving her right to appeal the ruling on the motion. On appeal, the sole issue is whether the trial court erred in denying the motion to suppress. We conclude that it did. Accordingly, we reverse and remand.
In reviewing a trial court's denial of a motion to suppress, we are bound by the court's findings of historical fact so long as they are supported by evidence in the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We review the trial court's legal conclusions for legal error. Id.
In this case, there is no dispute as to the facts, which we take from the trial court's letter opinion. Officer Young, of the Keizer Police Department, was notified by his dispatch officer that a caller had reported a possible case of DUII involving a burnt orange Nissan pickup truck with a canopy. The caller reported that the vehicle was being operated by a male driver and that a female passenger, “Stacey,” might be the subject of a warrant for her arrest. The caller said that the vehicle was headed to 3390 Cherry Avenue.
Young went to that address and saw an orange pickup truck pull into the driveway. Young drove his marked patrol car into the driveway behind the truck. Defendant drove all the way to the end of the driveway, which was 30 to 40 feet in length, and stopped with the truck resting against a portion of an awning attached to the house. Young stopped less than one car length behind the truck without having activated his vehicle's overhead lights or spotlight. He got out of his car and approached the driver's side door of the truck. Defendant was behind the wheel, whom Young recognized from previous interactions and believed was the “Stacey” reported to have an outstanding arrest warrant. Young asked defendant for her driver's license; she replied that she did not have it with her but that it was probably inside the house. She stepped out of the truck and said that she would retrieve the license from the house. Young instructed her to remain with him. At that point, he noticed the smell of alcohol and observed that defendant was “swaying.” Young cited defendant for DUII.
Defendant moved to suppress on the ground that Young lacked reasonable suspicion of a crime at the time that he stopped defendant. The arguments before the trial court focused on exactly when the stop occurred. Defendant argued that she was stopped at the moment that Young followed her into the driveway and parked in a manner that blocked her truck from leaving. The state argued that defendant was not stopped until she attempted to enter her house and Young instructed her to remain outside.
In its letter opinion, the trial court determined that Young did not have reasonable suspicion that any crime had been committed at the time that he pulled into defendant's driveway and stopped behind her truck. The court ruled, however, that defendant was not “stopped” until she was prevented from entering her house, by which time Young had probable cause to arrest her for failure to carry and present a driver's license. Accordingly, the court denied defendant's motion.
Our analysis of the trial court's legal conclusion, which begins with Article I, section 9, of the Oregon Constitution, which protects individuals against unreasonable searches and seizures.1 A seizure occurs: “(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). As the Supreme Court explained in State v. Backstrand, “[w]hat distinguishes a seizure (either a stop or an arrest) from a constitutionally insignificant police-citizen encounter ‘is the imposition, either by physical force or through some “show of authority,” of some restraint on the individual's liberty.’ ” 354 Or. 392, 399, 313 P.3d 1084 (2013) (quoting Ashbaugh, 349 Or. at 309, 244 P.3d 360).
Defendant argues that she was seized when Young entered her driveway, parked his patrol car less than a car length behind her truck, and “effectively boxed it in.” The state argues that the seizure did not occur until a few moments later, when Young prevented defendant from entering her house. Defendant does not dispute that, if the stop occurred when the state says that it did, then the stop was lawful because Young then had probable cause to arrest defendant. Similarly, the state concedes that, if the stop occurred when defendant says that it did, then the stop was unlawful because Young lacked reasonable suspicion of any wrongdoing at that time. Thus, the only issue in this appeal is when the seizure occurred.
Defendant directs us to cases in which we have held that a “stop” was effected when a police officer blocked a defendant's vehicle so as to prevent it from leaving. For example, in State v. Mesenbrink, 106 Or.App. 306, 309–10, 807 P.2d 319, rev. den.,312 Or. 235, 819 P.2d 731 (1991), we noted:
The state contends that the proper analysis is somewhat more nuanced. The state agrees that Young's actions “blocked defendant's ability to drive the truck out of the driveway.” In the state's view, however, the correct inquiry is not simply whether a defendant's vehicle was blocked, but, instead, whether the defendant was actually prevented from continuing on to a destination or forced to alter a course of conduct. Here, the state points out, defendant voluntarily drove into her own driveway, and there was no evidence that she wished to leave.
The state relies principally on State v. Porter, 38 Or.App. 169, 589 P.2d 1156 (1979), and State v. Norman, 114 Or.App. 395, 835 P.2d 146 (1992). In Porter, we held that no stop occurred where the defendant had been parked for an hour in a public parking lot, he “gave no indication of an intention to move[,]” and he “was free to move his car, although he would have had to maneuver around the police car.” 38 Or.App. at 171, 589 P.2d 1156. In Norman, a police officer followed the defendant into his driveway and stopped his patrol car behind the defendant's vehicle. 114 Or.App. at 397, 835 P.2d 146. The defendant got out of his vehicle, walked toward the patrol car, and said, “I suppose you fellows want to talk to me.” Id. We held that Id. at 400, 835 P.2d 146.
Neither Porter nor Norman is squarely on point. In Porter, the defendant's vehicle was not actually blocked in the parking lot; to the contrary, we expressly noted that the defendant “was free to move his car,” albeit with some maneuvering required. 38 Or.App. at 171, 589 P.2d 1156. Similarly, in State v. Cordray, 91 Or.App. 436, 440, 755 P.2d 735 (1988), which cited Porter, we held that no stop occurred where police pulled up “nose to nose” with the defendant's parked vehicle on a public street. We did observe that there was “no indication” that the defendant “wished to move at the time the police officers parked their vehicle in front of his car,” id. at 441–42, 755 P.2d 735, but it was clear, as in Porter, that the defendant's vehicle...
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State v. Newton
...is stopped when officers position themselves in a way that prevents the defendant from leaving. See, e.g. , State v. Thacker , 264 Or.App. 150, 156, 331 P.3d 1036 (2014) (officer's patrol car had pulled up behind the defendant and prevented her vehicle from driving away); State v. Wood , 18......
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