State v. Wright

• Decision Date: 24 December 1992
• Docket Number: D-106823
• Citation: 315 Or. 124,843 P.2d 436
• Parties: STATE of Oregon, Respondent on Review, v. Billy J. WRIGHT, Petitioner on Review. DC 90; CA A68328; SC S39281.
• Court: Oregon Supreme Court

Page 436

843 P.2d 436

315 Or. 124

STATE of Oregon, Respondent on Review, v. Billy J. WRIGHT, Petitioner on Review.

DC 90D-106823; CA A68328; SC S39281.

Supreme Court of Oregon In Banc.

Argued and Submitted Nov. 5, 1992.

Decided Dec. 24, 1992.

Walter J. Todd, Salem, argued the cause and filed the petition for petitioner on review.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the responses were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

GRABER, Justice.

We decide two questions in this case. (1) In ruling on a pretrial motion to suppress evidence in a criminal case, based on an allegedly illegal search or seizure, is a trial court bound by the rules of evidence relating to the admissibility of hearsay? We answer that question "no." (2) Was an out-of-court statement that an officer "observed" defendant, who was driving, to be "very visibly intoxicated" sufficient to allow a reasonable trier of fact to conclude that the officer had a reasonable suspicion that defendant was driving under the influence of intoxicants in violation of a Salem ordinance? We answer that question "yes." ¹

The material facts are not disputed. On June 7, 1990, Sergeant Martino stopped a car in Salem. Defendant was the driver. Shortly thereafter, Corporal Shimmin learned of the stop and went to the scene to assist Martino. When Shimmin arrived, Martino told him why he had stopped defendant. Shimmin administered field sobriety tests to defendant and, based on the results, arrested him for driving under the influence of intoxicants.

Defendant moved to suppress "any and all evidence obtained in the stop of [defendant]." The issue at the pretrial omnibus hearing on defendant's motion to suppress was whether Martino had a reasonable suspicion to stop defendant. ²

The state called Shimmin, who testified:

"PROSECUTOR: What did you respond to at about 7:52 hours, 7:52 p.m. that night?

"CORPORAL SHIMMIN: I was a cover car that--we were being sent back to an incident that had arisen again, and I was a cover car being sent back to that area.

" * * * * *

"PROSECUTOR: What happened when you got there?

"CORPORAL SHIMMIN: When I arrived, I had--I was quite a distance away, and by the time I got there the other officers had already arrived and I made contact with the supervisor at the scene, Sergeant Martino, and he indicated to me that--"

At that point, defense counsel objected on the ground that whatever Martino had told Shimmin was hearsay and inadmissible. ³ The trial court sustained the objection, and the state made this offer of proof:

"PROSECUTOR: Officer Shimmin, when you arrived there, you were contacted by Sergeant Martino. What did he tell you about the defendant that night?

"CORPORAL SHIMMIN: He said that he had observed him earlier at the first dispatch and that he had--at that time Sergeant Martino indicated the subject was very visibly intoxicated and when he arrived at the second call at 7:52 he observed the subject driving a car and therefore stopped him. Waved him down. * * * [A]nd therefore he performed his stop and then he turned him over to me.

"PROSECUTOR: And you subsequently arrested him?

"CORPORAL SHIMMIN: Yes."

The trial court granted defendant's motion to suppress:

"IT FURTHER APPEARING that the State, having the burden of proof, failed to produce witnesses with personal observations pertaining to the alleged bad stop and

"IT FURTHER APPEARING that the State was only able to produce non-admissible hearsay evidence on that issue

"IT IS HEREBY ORDERED that Defendant's Motion is granted."

Pursuant to ORS 138.060(3), ⁴ the state appealed.

The Court of Appeals reversed, holding that the trial court should have admitted and considered the excluded testimony and that the state's offer of proof was sufficient to demonstrate the validity of the stop. State v. Wright, 112 Or.App. 567, 829 P.2d 93 (1992). We affirm the decision of the Court of Appeals.

OEC 101(4)(a) provides:

"OEC 100 to 412 and OEC 601 to 1008 do not apply in the following situations:

"(a) The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under OEC 104."

That paragraph restates the provisions of the second sentence of OEC 104(1), relating to preliminary questions. 1981 Conference Committee Commentary to OEC 101, reprinted in Oregon Rules of Court, State 147 (1992). OEC 104(1) provides in part:

"Preliminary questions concerning * * * the admissibility of evidence shall be determined by the court * * *. In making its determination the court is not bound by the rules of evidence except those with respect to privileges."

We turn first to the question whether a motion to suppress evidence in a criminal case involves a preliminary question concerning the admissibility of evidence within the scope of OEC 104(1). In interpreting a statute, our task is to discern the intent of the legislature. ORS 174.020; State ex rel Juv. Dept. v. Ashley, 312 Or. 169, 174, 818 P.2d 1270 (1991). We begin with the text and context of the statute. ORS 174.010; Porter v. Hill, 314 Or. 86, 91, 838 P.2d 45 (1992).

Defendant's motion to suppress asked the trial court to rule preliminarily, outside the presence of the jury, on the admissibility of evidence resulting from the stop. On their face, the words of OEC 104(1) apply to the determination made here. See State v. Carlson, 311 Or. 201, 210-13, 808 P.2d 1002 (1991) (wording of OEC 104(1) and commentary to it suggest that the issue whether the defendant's nonverbal reaction to his wife's accusatory statement manifested his intention to adopt the statement was a preliminary question of fact for the trial judge under OEC 104(1)). See also Kirkpatrick, Oregon Evidence 30 (2d ed 1989) ("[s]uppression hearings * * * are exempted by Rule 104(1) from the rules of evidence other than the privilege rules, although courts may apply the rules of evidence by analogy").

An additional indicator that OEC 104(1) encompasses motions to suppress evidence in criminal cases is found in another subsection of the same rule. OEC 104(3) provides that "[h]earings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if the accused so requests." That subsection makes clear that the preliminary matters covered by OEC 104 include questions of admissibility of evidence in criminal trials; include questions of admissibility involving constitutional issues; and contemplate various situations in which an accused is expected to testify. A criminal defendant's motion to suppress evidence based on an allegedly illegal stop is a preliminary matter of just that type.

We conclude that a hearing on a motion to suppress evidence involves a preliminary question of fact concerning the admissibility of evidence to which OEC 104(1) ¹ applies. That being so, the hearsay rules of the Oregon Evidence Code do not apply therein. OEC 101(4)(a). ⁵

Defendant argues that the hearsay rules apply, because ORS 135.173 makes the evidence code applicable to "any preliminary hearing under this chapter." ⁶ The problem with that argument is that ORS 135.070 to 135.225 reveal that the "preliminary hearing" to which ORS 135.173 refers is a preliminary hearing to determine whether probable cause exists to try a defendant who has been charged by information rather than by indictment.

ORS 135.070, the first section in ORS chapter 135 to use the phrase "preliminary hearing," provides in part:

"When the defendant against whom an information has been filed in a preliminary proceeding appears before a magistrate on a charge of having committed a crime punishable as a felony, before any further proceedings are had the magistrate shall read to the defendant the information and shall inform the defendant:

" * * * * *

"(2) That the defendant is entitled to a preliminary hearing and of the nature of a preliminary hearing. If a preliminary hearing is requested, it shall be held as soon as practicable but in any event within five days, unless such time is extended for good cause shown."

In addition, ORS 135.185 describes the effect of admitting hearsay evidence, pursuant to ORS 135.173, in that "preliminary hearing":

"If it appears from the preliminary hearing that there is probable cause to believe that a crime has been committed and that the defendant committed it, the magistrate shall make a written order holding the defendant for further proceedings on the charge. When hearsay evidence was admitted at the preliminary hearing, the magistrate, in determining the existence of probable cause, shall consider (a) the extent to which the hearsay quality of the evidence affects the weight it should be given, and (b) the likelihood of evidence other than hearsay being available at trial to provide the information furnished by hearsay at the preliminary hearing."

By contrast, the legislature referred to pretrial hearings on motions to suppress evidence as "omnibus hearing[s]." ORS 135.037(2)(a). We conclude that defendant's reliance on ORS 135.173 is misplaced.

In summary, we hold that the hearsay rules of the Oregon Evidence Code do not apply to pretrial hearings on motions to suppress evidence, based on an allegedly illegal search or seizure, in a criminal case. In the trial court, defendant objected only on the ground that the excluded evidence was hearsay. (Indeed, he made no other argument for its exclusion to the Court of Appeals or to us.) Accordingly, the trial court erred in sustaining defendant's objection.

We next consider defendant's main contention on review: that the state's offer of proof "failed to establish an objective basis" for stopping his car. Defendant argues that Shimmin's testimony about Martino's reported reasons for...