State v. Phillips

312 Or.App. 239

491 P.3d 99

STATE of Oregon, Plaintiff-Respondent,

v.Donald Ray PHILLIPS, Defendant-Appellant.

A170229

Court of Appeals of Oregon.

Argued and submitted January 26, 2021.

June 9, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services, argued the cause and filed the brief for appellant.

Daniel Norris, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

KAMINS, J.

Defendant was charged with driving under the influence of intoxicants, ORS 813.010, after police discovered that he was intoxicated while driving his all-terrain vehicle (ATV) to the scene where deputies were arresting his cousin for other crimes. Defendant moved to suppress the evidence of his intoxication, arguing that he was unlawfully seized in violation of Article I, section 9, of the Oregon Constitution when one of the deputies directed him to turn around and put his hands behind his back during the course of the encounter. The trial court denied his motion after determining that the deputy's order was justified under the officer-safety doctrine. We conclude that the deputy's order was not justified by either the officer-safety doctrine or by a reasonable suspicion that defendant had committed the crime of interfering with a peace officer, ORS 162.247. Accordingly, we reverse and remand.

I. FACTUAL BACKGROUND

Just before midnight on July 27, 2018, Douglas County Sheriff's Deputies Cutsforth and Pitcher were riding ATVs out on patrol in the Oregon Dunes Natural Recreation Area. "Dunes Fest"—an annual, multi-day ATV event—was underway, and the nightly concert had just ended. As concertgoers were dispersing, Cutsforth noticed two individuals up by the stage yelling and spinning circles on their ATVs. Cutsforth observed one of them—later identified as defendant's cousin—rev his engine loudly and depart the stage area at a high rate of speed via one of the festival's "road lanes," sand roads that connect the concert area to nearby campsites. Because the posted speed limit for the road lanes was five miles per hour, Pitcher activated his ATV's lights and siren and began pursuing defendant's cousin. As Cutsforth began to follow to assist, he observed the second individual—later identified as defendant—also depart the stage area at a high rate of speed.

Rather than yielding to Pitcher, defendant's cousin attempted to elude him for approximately half a mile. By the time Cutsforth caught up, Pitcher had already ended the chase by "interject[ing] his ATV into [defendant's cousin's] ATV" and was in the process of arresting defendant's cousin on the side of the road lane. At that point, Cutsforth began performing "cover officer functions" for Pitcher, including monitoring the scene to ensure that no one else interfered with the arrest.

Shortly thereafter, Cutsforth noticed a second ATV approaching the arrest site from the far end of the road lane, although he could not see that defendant was the driver. As defendant neared the arrest site, he slowed his ATV and revved the engine loudly six times, causing the ATV's tires to throw sand up into the air. The noise was so loud that it caused Cutsforth and Pitcher to both temporarily stop what they were doing and focus their attention on defendant. Defendant pulled his ATV off to the opposite side of the road lane, dismounted, and began walking across the grass toward the deputies.

As defendant approached, Cutsforth told him that "I suggest you stay on that side of the road, partner."¹ Defendant did not immediately stop walking but did remain on the grass on the far side of the roadway from the deputies. At the same time, defendant ran his left hand through his hair and put it in his pants pocket. Pitcher told Cutsforth to "detain [defendant] for this" and Cutsforth ordered defendant to turn around and put his hands behind his back. Defendant initially refused, arguing that he had heeded Cutsforth's warning and remained on the far side of the road. In response, Cutsforth drew his taser and again ordered defendant to "[p]ut your hands behind your back or you're gonna get tased." Defendant complied and Cutsforth ordered him to get down onto his knees, at which point another backup deputy, who had just arrived, placed defendant in handcuffs. During subsequent questioning, Cutsforth developed a reasonable suspicion that defendant had been driving under the influence of intoxicants and expanded the scope of his investigation. Ultimately, defendant failed several field sobriety tests, registered a blood alcohol content (BAC) of .18 on a breath test, and made several incriminating statements.

Defendant was charged with driving under the influence of intoxicants, ORS 813.010, and moved to suppress all the evidence obtained during his detention. He argued that Cutsforth lacked a legal basis for ordering him to turn around and put his hands behind his back and that his detention therefore violated Article I, section 9, of the Oregon Constitution. The state responded that Cutsforth's order was justified by a reasonable suspicion that defendant had attempted to interfere with a peace officer in violation of ORS 162.247(1)(a) by revving his ATV's engine and approaching the deputies. The trial court concluded that Cutsforth's order was justified by a reasonable officer-safety concern and denied defendant's motion to suppress.

On appeal, defendant challenges the denial of the motion to suppress. He argues that neither officer safety nor Cutsforth's suspicion that he had violated ORS 162.247(1)(a) provided a lawful basis for the order to turn around and put his hands behind his back, and thus the evidence obtained from the seizure should have been suppressed.

II. STANDARD OF REVIEW

We review the trial court's denial of defendant's motion to suppress for legal error and are bound by the court's express and implicit findings of fact, provided that there is constitutionally sufficient evidence in the record to support them. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993).

III. ANALYSIS

Article I, section 9, of the Oregon Constitution establishes "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure." A person is considered "seized" for constitutional purposes when (1) a police officer intentionally and significantly interferes with an individual's liberty or freedom of movement; or (2) a reasonable person, under the totality of the circumstances, would believe that his or her liberty or freedom of movement has been significantly restricted. State v. Ashbaugh , 349 Or. 297, 303, 244 P.3d 360 (2010) (internal quotation marks omitted). When an individual is seized without a warrant, that seizure is per se unreasonable unless justified by one of the established and well-delineated exceptions to the warrant requirement. State v. Edwards , 304 Or. App. 293, 296, 466 P.3d 1034 (2020).

Here, the parties agree that Cutsforth's order for defendant to turn around and put his hands behind his back constituted a seizure. The state contends, and defendant disputes, that the order was justified by an exception to the warrant requirement—either the officer-safety doctrine or reasonable suspicion that defendant committed a crime. We address each in turn.

A. The Officer-Safety Doctrine

Article I, section 9, permits officers to take reasonable steps to protect themselves or others, which can include seizing the defendant, but the state must satisfy a two-part burden of proof and persuasion. State v. Ramirez , 305 Or. App. 195, 205, 468 P.3d 1006 (2020). First, the state bears the burden of establishing that: (1) based on specific and articulable facts known to the officer, the officer (2) had subjective reasonable suspicion, that (3) the defendant posed an immediate threat, and (4) the threat was of serious physical injury. Id. Second, the state must prove that (1) the officer's subjective safety concerns of an immediate threat of serious physical injury were objectively reasonable, and that (2) the officer's response to the safety concerns was, itself, objectively reasonable. Id. To determine whether an officer's suspicion or the precautions that the officer took were reasonable, we look to the totality of the circumstances. State v. Bailey , 307 Or. App. 782, 789, 479 P.3d 304 (2020).

The state points to several facts which it argues justified Cutsforth's safety concerns, including that: (1) it was nighttime; (2) the deputies were making a felony arrest; (3) defendant revved his engine repeatedly making a loud noise as he approached the scene; (4) in Cutsforth's words, defendant approached the arrest scene "like [he was] gonna fight me;" (5) defendant did not immediately stop when Cutsforth suggested that he remain on the far side of the road; and (6) defendant put his hand in his pocket. Assuming these circumstances create a reasonable concern for officer safety, the question is whether Cutsforth's choice of protective measures—immediately ordering defendant to turn around and put his hands behind his back to be handcuffed—was a proportionate response.

Recognizing that police officers must "make life-or-death decisions in a matter of seconds," we generally allow "considerable latitude to the police in choosing how to protect themselves." State v. Madden , 363 Or. 703, 719, 427 P.3d 157 (2018). That latitude, however, is bounded by the principle that "protective measures must be proportionate to the perceived threat." Id . Accordingly, "the officer safety doctrine does not excuse protective measures that are disproportionate to any threat that the officers reasonably perceive." State v. Rudder , 347 Or. 14, 23, 217 P.3d 1064 (2009). Although we are "sensitive to the dangers inherent in police work and to the difficulties inherent in officer safety...