State v. Westlund
| Decision Date | 20 November 1986 |
| Citation | 729 P.2d 541,302 Or. 225 |
| Parties | STATE of Oregon, Petitioner on Review/Respondent on Review, v. Bernard John WESTLUND, Respondent on Review/Petitioner on Review. TC C83-01-30264; CA A28733; SC S32164; SC S32168. |
| Court | Oregon Supreme Court |
Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for petitioner on review/respondent on review. With him on the petition for review was Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Marc D. Blackman, Portland, filed the petition and argued the cause for respondent on review/petitioner on review. With him on the petition for review was Ransom, Blackman & Simson, Portland.
On the amicus curiae brief of the Oregon Dist. Attys. Ass'n was Irvin D. Smith, President, Michael D. Schrunk, Vice-President, Brenda M. Fitzgerald, Alexander Gordon, and John C. Bradley, members.
Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.
This case presents two issues: (1) whether the failure of a police officer to take an obviously intoxicated person into civil custody before the person operated a motor vehicle renders unlawful the person's arrest for Driving While Under the Influence of Intoxicants (DUII); and (2) whether a warrant is required to test the contents of a transparent vial, lawfully seized in a search incident to an arrest, when there is probable cause to believe that the vial contains a controlled substance.
On June 5, 1982, the Multnomah County Emergency Medical Center was notified that defendant was lying, apparently unconscious, under a motor vehicle in Portland. The ambulance attendant who arrived at the scene found that defendant was conscious, but intoxicated. Fearing that defendant would try to drive again after he changed a flat tire, the attendant flagged down a Portland police officer. Because that officer was responding to another call, she radioed a second officer, who came to the scene. This second officer parked two blocks away and observed defendant for five to seven minutes, while defendant struggled to change a flat tire and staggered across the street. The second officer concluded that defendant was obviously intoxicated, as did the first officer, who by then had returned to the scene and also observed defendant. Both officers believed that if defendant were to operate a motor vehicle, he would be a danger to himself or to others. The officers continued to observe defendant as he replaced the flat tire, got into his motor vehicle and started to drive away. Immediately, the second officer ordered defendant to pull over.
When the officer confronted defendant he noticed that defendant's eyes were bloodshot and watery and that he had the strong odor of alcohol on his breath. When defendant performed poorly on field sobriety tests, he was arrested for DUII.
Former ORS 487.540. (The current version of this statute is codified at ORS 813.010.)
The officer searched defendant and found a transparent brown vial in his front pants pocket. The officer testified that, based upon his six years of experience as a police officer and his specific training and experience in drug investigation, he was "90 percent" certain that the white powder in the transparent vial was a controlled substance. The officer seized the vial and sent it to the State Crime Laboratory for chemical analysis. The contents were determined to be cocaine. No search warrant was obtained before the vial was opened or its contents tested.
Seven months later, in January 1983, when defendant declined to plead guilty to the misdemeanor DUII charge, he was charged with felony Possession of a Controlled Substance. ORS 475.992(4).
Defendant filed a series of pre-trial motions to dismiss and to suppress evidence on the grounds, inter alia, that: (1) the crime (DUII) would never have occurred if the officer had followed his statutory duty under ORS 426.460 to take defendant into civil custody before he drove his motor vehicle; (2) the arrest and search incident thereto were illegal for the same reason; and (3) the warrantless seizure and opening of the vial were unlawful. The motions were denied.
Defendant was tried on stipulated facts and convicted of DUII and Possession of a Controlled Substance. He appealed. A majority of the Court of Appeals, in banc, affirmed the DUII conviction, but reversed and remanded as to the Possession conviction. State v. Westlund, 75 Or.App. 43, 705 P.2d 208 (1985). A separate concurring opinion and two opinions, dissenting in part, were filed on the issue of the warrantless testing of the vial's contents. Both defendant and the state petitioned this court for review.
Defendant asserts that ORS 426.460(1) mandates that a police officer take an obviously intoxicated person into civil custody and transport that person to a treatment facility, rather than observe him passively and allow him to drive a motor vehicle. ORS 426.460(1) provides:
(Emphasis supplied.)
Defendant maintains that the officer's neglect of this statutory duty turned a civil problem (public intoxication) into a criminal offense (DUII). Defendant argues that such police conduct defeats the purpose of the statute, which is to decriminalize public intoxication. Defendant maintains that his arrest on a criminal charge was unlawful, and that the state should be denied the use of any evidence found as a result of the statutory violation.
The state concedes that the police officer violated ORS 426.460(1) by not promptly taking defendant into "protective civil custody" under the mandatory terms of the statute. It argues, however, that the proper issue is what sanction should be imposed for a statutory violation. The state suggests the statutory scheme contemplates that the officer may be held criminally or civilly liable for his actions pursuant to ORS 426.460, when they are not performed in good faith, on probable cause and without malice. ORS 426.470 provides:
"No peace officer, treatment facility and staff, physician or judge shall be held criminally or civilly liable for actions pursuant to ORS 426.450 to 426.470 and 430.315 to 430.335 provided the actions are in good faith, on probable cause and without malice."
The state also suggests that another possible sanction for police noncompliance with ORS 426.460(1) is personal liability of the police officer to an intoxicated person who injures himself or to third persons injured by the intoxicated person, citing Nearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983).
Assuming for the purposes of this opinion that the statute creates a mandatory duty, statutory violations by police officers do not necessarily require dismissal of criminal charges or exclusion of evidence. State v. Valdez, 277 Or. 621, 629, 561 P.2d 1006 (1977). In the absence of legislative direction, we look to the character of the statutory rule to determine whether a violation calls for exclusion of the resulting evidence. When the purpose of a statute is to protect citizens against violation of their constitutional rights, such as the unauthorized searches or seizures of their persons, property or effects, the exclusionary rule will be applied to protect those interests. State v. Davis, 295 Or. 227, 237, 666 P.2d 802 (1983). But where the purpose of a statute is something other than the protection of privacy or property rights, the sanction of denying the state the use of evidence obtained by a statutory violation will not be applied. See, e.g., State v. Cortman, 251 Or. 566, 446 P.2d 681 (1968) (...
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