State v. Weller, 077312; A140409.

• Decision Date: 30 March 2011
• Docket Number: 077312; A140409.
• Parties: STATE of Oregon, Plaintiff–Appellant,v.Patrick William WELLER, Defendant–Respondent.
• Court: Oregon Court of Appeals

241 Or.App. 690
250 P.3d 979

STATE of Oregon, Plaintiff–Appellant,
v.
Patrick William WELLER, Defendant–Respondent.

077312; A140409.

Court of Appeals of Oregon.

Argued and Submitted Nov. 16, 2010.Decided March 30, 2011.

[250 P.3d 979]

Doug M. Petrina, Senior Assistant Attorney General, argued the cause for appellant. With him on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.Kevin T. Lafky, Salem, argued the cause for respondent. With him on the brief was Scott Howell.Before HASELTON, Presiding Judge, and DUNCAN, Judge, and GILLETTE, Senior Judge.DUNCAN, J.

[241 Or.App. 692] This is a criminal case in which the state appeals the trial court's dismissal of the charges against defendant. The state charged defendant with one count of reckless driving, ORS 811.140, and two counts of recklessly endangering another person, ORS 163.195, for speeding on the Astoria–Megler Bridge between Oregon and Washington. Defendant filed a motion to dismiss the case on the ground that the Oregon police officer who arrested him in Washington violated Washington's Fresh Pursuit Act ¹ (the Act)

[250 P.3d 980]

by bringing him back to Oregon without first presenting him to a Washington magistrate for a hearing on the lawfulness of the arrest. Defendant argued that the officer's violation of the Act constituted a due process violation under the Fourteenth Amendment to the United States Constitution. ² The trial court agreed and granted defendant's motion to dismiss, concluding that the officer had violated the Act and that the violation “represented a denial of due process” that “[could] not be condoned.” The trial court explained that, although “dismissal of [defendant's] case may seem a harsh result,” there was “no other suitable remedy given the violation of [d]efendant's basic constitutional rights.”

On appeal, the state does not dispute that the officer violated the Act but contends that that violation does not constitute a due process violation that requires dismissal of the charges against defendant. For the reasons explained below, we agree and, therefore, reverse and remand.

We begin with the facts. On August 31, 2007, Astoria Police Officer Ayet saw defendant driving northbound at a high rate of speed on the Astoria–Megler Bridge between Clatsop County, Oregon, and Pacific County, Washington. [241 Or.App. 693] The speed limit on the bridge is 55 miles per hour. Using radar, Ayet determined that defendant was driving at 121 miles per hour. While on the Oregon side of the bridge, Ayet activated his patrol car's overhead lights to stop defendant. Ayet believed defendant was not simply violating Oregon's speeding statute, ORS 811.100, but was also violating Oregon's reckless driving statute, ORS 811.140.

The bridge is a two-lane road with no shoulder, and defendant was not able to pull over safely until he was off the bridge in Washington. Ayet pulled over behind defendant's car and approached defendant. Ayet informed defendant of the reason for the stop and observed that defendant had two passengers in his car.

Ayet called a Clatsop County prosecutor to ask whether he could bring defendant back to Oregon. Ayet testified that he called the prosecutor because it is “a tangled mess when you cross the bridge, and I wanted to make sure whether I could bring [defendant] back, whether I had to give him a ticket there, whether I had to turn him over to a Washington trooper, or Pacific County.” The deputy district attorney told Ayet that he could bring defendant back to Oregon. Ayet arrested defendant and put him in his patrol car. With defendant's permission, Ayet released defendant's car to defendant's passengers. Ayet then brought defendant to the Clatsop County jail, with the intent that defendant would be processed, cited, and released.

The Clatsop County District Attorney's Office charged defendant by information with one count of reckless driving and two counts of recklessly endangering another person. Defendant filed a motion to suppress evidence and dismiss the case, arguing that Ayet violated his due process rights by violating Washington's Fresh Pursuit Act. As noted, the Act provides, in part, that an officer who is in fresh pursuit of a person suspected of a felony or certain driving crimes, including reckless driving, can arrest the person in Washington, RCW 10.89.010, and, if the officer does so, then the officer has to take the person to a magistrate for a hearing on the lawfulness of the arrest, RCW 10.89.020.

[241 Or.App. 694] Specifically, RCW 10.89.010 provides:

“Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person in order to arrest the person on the

[250 P.3d 981]

ground that he or she is believed to have committed a felony in such other state or a violation of the laws of such other state relating to driving while intoxicated, driving under the influence of drugs or alcohol, driving while impaired, or reckless driving shall have the same authority to arrest and hold such person in custody as has any member of any duly organized state, county or municipal peace unit of this state, to arrest and hold in custody a person on the ground that he or she is believed to have committed a felony or a violation of the laws of such other state relating to driving while intoxicated, driving under the influence of drugs or alcohol, driving while impaired, or reckless driving in this state.”

RCW 10.89.020, in turn, provides:

“If an arrest is made in this state by an officer of another state in accordance with the provisions of RCW 10.89.010, he shall, without unnecessary delay, take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful, he or she shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state. If the magistrate determines that the arrest was unlawful, he or she shall discharge the person arrested.”

Defendant argued that Ayet violated RCW 10.89.020 and, thereby, violated his due process rights. Specifically, defendant argued that the police “essentially kidnapped him and brought him back to the [S]tate of Oregon, without affording him the due process that Washington allows” and that that amounted to a violation of his due process rights.

As noted, the trial court concluded that Ayet had authority to stop and arrest defendant in Washington under RCW 10.89.010, but that Ayet violated RCW 10.89.020 when he failed to bring defendant before a magistrate for a hearing [241 Or.App. 695] on the lawfulness of the arrest. The court further concluded that the violation of RCW 10.89.020 constituted a due process violation. The court set out its findings and conclusions in a letter opinion, stating:

“6. Sgt. [Ayet] had the authority under Washington's ‘fresh pursuit’ statute to enter into Washington for the purpose of pursuing Defendant and arresting him for the crime of Reckless Driving. RCW 10.89.010 and 10.89.020. Sgt. [Ayet's] stop of Defendant in Washington for the crime of Reckless Driving was lawful.

“7. Sgt. [Ayet] did not comply with the provisions of RCW 10.89.020 which require that he take Defendant before a magistrate of Pacific County, Washington, for the purpose of determining the lawfulness of the arrest.

“ * * * * *

“[T]he failure to take Defendant before a magistrate to determine the lawfulness of his arrest, when clearly required to do so, is more than a mere statutory violation. It represented a denial of due process and cannot be condoned. Defendant's potentially dangerous...