State v. Finney

961 P.2d 256, 154 Or. App. 166, 1998 Ore. App. LEXIS 736
CourtCourt of Appeals of Oregon
DecidedMay 27, 1998
Docket8434; CA A95981
StatusPublished
Cited by4 cases

This text of 961 P.2d 256 (State v. Finney) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Finney, 961 P.2d 256, 154 Or. App. 166, 1998 Ore. App. LEXIS 736 (Or. Ct. App. 1998).

Opinion

ARMSTRONG, J.

The state appeals from an order granting defendant’s motion to suppress evidence. ORS 138.060(3). We reverse.

At approximately 10:50 p.m. on June 14, 1996, Fairview Police Officer Aden saw a pickup truck turn, without signaling, out of a bar’s parking lot onto Sandy Boulevard. Aden began following the pickup, pacing it at 56 mph in a 35-mph zone for two blocks. The pickup came to a full stop at an intersection and continued on another road. Because there was more light on that road, Aden turned on his patrol car’s overhead lights to stop the pickup and cite the driver for the traffic infractions. Defendant, who was the driver of the pickup, did not immediately pull over. Instead, he continued another two blocks before turning into a driveway. He drove to the end of the driveway and stopped in front of a house.

At that point, both doors of the pickup opened. Defendant’s passenger went into the house and defendant took a few steps toward the front of the truck, heading toward the house. Aden believed that defendant intended to follow the passenger inside. He called out to defendant and had to tell him twice to walk to the back of the pickup before defendant complied. Two other officers arrived in separate patrol cars. One parked behind Aden’s patrol car and the other parked about 20 feet to one side of it. The two officers left their patrol cars’ overhead lights on, got out of their cars and proceeded to watch the stop.

When defendant walked back to Aden, Aden asked him for his driver’s license. Aden smelled an odor of alcohol. He asked defendant what he had had to drink and defendant replied, “three rum and cokes.” Aden asked defendant to consent to perform field sobriety tests in order to determine whether he was “under the influence” or “OK to drive.” Aden testified that, if defendant had refused to take the tests, Aden would have arrested him immediately for driving under the influence of intoxicants (DUII). Defendant agreed to do the tests. Defendant completed three tests and, in Aden’s opinion, failed each of them. Aden arrested defendant for DUII.

[169]*169Defendant filed a motion to suppress. He argued that Aden had violated ORS 810.410 when he expanded the scope of the stop to investigate whether defendant was driving under the influence of intoxicants and that, as a result, all evidence discovered after the expansion of the stop had to be suppressed. In the alternative, he argued that he had not voluntarily consented to perform the field sobriety tests and that Aden did not have probable cause to arrest him for DUII prior to his performance of those tests. Therefore, because field sobriety tests are searches under Article I, section 9, of the Oregon Constitution,1 defendant’s Article I, section 9, rights were violated when he performed the tests. Defendant argued that, as a result, the trial court was required to suppress the field sobriety tests and all evidence derived from them.

The trial court ruled on each of defendant’s arguments. First, it concluded that, when Aden asked defendant to walk to the back of the pickup, Aden “moved beyond what he needed to do for purposes of a traffic stop for the unsignaled turn and the speeding in order to smell the alcohol at a different place.” The court concluded, therefore, that Aden had violated ORS 810.410 and that all of the evidence discovered after that violation had to be suppressed. The court also ruled that, under the circumstances, defendant had not voluntarily consented to perform the field sobriety tests. Finally, it ruled that Aden did not have probable cause to arrest defendant before defendant performed the tests. The state appeals pursuant to ORS 138.060(3).

On appeal, the state challenges all three of the court’s rulings. First, it argues that Aden did not violate ORS 810.410(3)(b) when he expanded the scope of the traffic stop to conduct a DUII investigation. We agree. ORS 810.410(3)(b) provides:

[170]*170“A police officer * * * [m]ay stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation.”

Under that statute, an officer may expand the investigation of a person stopped for a traffic infraction only if the officer has a reasonable suspicion that the person has engaged in illegal activity other than the traffic infraction. State v. Aguilar, 139 Or App 175, 181, 912 P2d 379, rev den 323 Or 265 (1996). Thus, in order for Aden to expand the scope of the traffic investigation in this case, he had to have a reasonable suspicion that defendant was driving under the influence of intoxicants.

Aden did not expand the scope of the traffic stop until he asked defendant what he had had to drink that night, which was after Aden had smelled alcohol. At that point, defendant’s having been at a bar, his driving, his failure to pull over immediately after Aden had turned on the patrol car’s overhead lights, his decision, after he got out of his pickup, to walk away from Aden, and the odor of alcohol led Aden to suspect that defendant was driving under the influence of intoxicants. Considering the totality of the circumstances, that suspicion was reasonable. Therefore, Aden’s decision to expand the scope of the stop in order to conduct a DUII investigation did not violate ORS 810.410(3)(b). The trial court erred in granting defendant’s motion to suppress on that ground.

The trial court made that error because it incorrectly concluded that Aden had expanded the scope of the traffic stop when he told defendant to walk to the back of the pickup. At that point, Aden had not detected the odor of alcohol and, the trial court concluded, he did not have a reasonable suspicion that defendant was driving under the influence of intoxicants. Aden testified:

“As soon as he stopped both of the car doors — the pickup doors opened and both gentlemen got out. The passenger went and walked towards the house. And I asked Mr. Finney for his driver’s — asked him to step back to the rear of his vehicle — and then I asked him for his driver’s license.”

[171]*171(Emphasis supplied.) He continued, “When I got close enough to ask [defendant] for his driver’s license, I could smell the alcohol.” Given those facts, the only reasonable interpretation of Aden’s actions is that Aden told defendant to walk to the back of the pickup in order either to begin or continue the traffic investigation. Moreover, it is clear that Aden’s detection of the odor of alcohol is not linked to defendant’s movement in any way but, rather, is linked to Aden’s decision to get close enough to defendant to ask him for his driver’s license.

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342 Or. App. 362 (Court of Appeals of Oregon, 2025)
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Cite This Page — Counsel Stack

Bluebook (online)
961 P.2d 256, 154 Or. App. 166, 1998 Ore. App. LEXIS 736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-finney-orctapp-1998.