ARMSTRONG, P. J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. He assigns error to the trial court’s denial of his motion to suppress evidence obtained after a Washington State Trooper stopped him in Oregon for traffic violations committed in Washington. We conclude that the trooper’s stop of defendant was without lawful authority and thus violated Article I, section 9, of the Oregon Constitution. Accordingly, we reverse and remand.
The relevant facts are undisputed. Thompson, a Washington State Trooper, was driving an unmarked patrol car southbound on 1-5 around 1:40 a.m. Just as he was entering the Interstate Bridge, Thompson saw in his rearview mirror a car approaching at high speed. The special radar in Thompson’s patrol car measured the approaching car’s speed at 25 miles per hour over the posted speed limit. The car then got so close to Thompson’s patrol car that Thompson could no longer see the car’s headlights in his rearview mirror. The car moved into the left lane and accelerated past Thompson.
Based on the Washington traffic violations of speeding and following too close, Thompson decided to initiate a stop. Thompson followed defendant with his emergency lights activated while still in Washington, intending to have defendant pull over on the freeway near the Jantzen Beach exit in Oregon. After defendant did not stop near Jantzen Beach, Thompson activated his siren and his air horn. Defendant then slowed down and got in the right lane, but continued driving. That prompted Thompson to use his public address system to tell defendant to pull over. Defendant took the next freeway exit and stopped on the shoulder of Marine Drive in Portland. Before getting out of his patrol car, Thompson asked his Washington dispatch to contact the Portland police for assistance. Thompson approached defendant and immediately noticed that defendant smelled of alcohol and had bloodshot, watery eyes, and slurred speech. Defendant told Thompson that he had consumed three beers. Thompson returned to his patrol car with defendant’s identification card, requested Portland police assistance for [762]*762a possible DUII, and waited in his patrol car. Portland police officers arrived about eight to 12 minutes from the time of Thompson’s first call. After an investigation, the Portland officers arrested defendant for DUII.
Before trial on the Oregon DUII charge, defendant moved to suppress the evidence obtained as a result of Thompson’s traffic stop. Defendant contended that Thompson had no authority to stop defendant in Oregon for Washington traffic violations and thus the stop was an unlawful seizure in violation of Article I, section 9. The trial court assumed without deciding that Thompson did not have authority to conduct the stop. However, the court concluded that the stop did not violate Article I, section 9, because Thompson had probable cause to justify the initial traffic stop and reasonable suspicion of DUII to justify detaining defendant while waiting for Portland police to arrive. The trial court then convicted defendant of DUII after a stipulated facts trial.
On the undisputed facts in this case, we review the trial court’s denial of defendant’s motion to suppress for legal error. State v. Holdorf 355 Or 812, 814, 333 P3d 982 (2014).
We begin our analysis with the general proposition that, for the evidence obtained from Thompson’s stop to be admissible in defendant’s criminal prosecution, Thompson’s stop of defendant must have complied with the requirements of Article I, section 9. In that respect, it does not matter that Thompson is a Washington Trooper. The Oregon Supreme Court has emphasized that the focus of Article I, section 9, is to protect an individual’s rights in relation to the government; thus,
“[i]f the government seeks to rely on evidence in an Oregon criminal prosecution, that evidence must have been obtained in a manner that comports with the protections given to the individual by Article I, section 9, of the Oregon Constitution. It does not matter where that evidence was obtained (in-state or out-of-state), or what governmental entity (local, state, federal, or out-of-state) obtained it; the constitutionally significant fact is that the Oregon government seeks to use the evidence in an Oregon criminal prosecution.”
[763]*763State v. Davis, 313 Or 246, 254, 834 P2d 1008 (1992) (emphasis in original). Because the state seeks to introduce evidence in a criminal prosecution of defendant that derived from Thompson’s stop of defendant, we must confront whether Thompson’s stop and detention of defendant in Oregon comported with Article I, section 9.
Article I, section 9, provides, in part, that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.” Thus the right protected by Article I, section 9, is the right of the people to be secure from unreasonable searches and seizures. However, the provision does not, of itself, confer any authority on any person to effect a warrantless seizure of a person in Oregon. That authority must come from another source, such as the established common law or an Oregon statute. Compare State v. Meyer, 183 Or App 536, 548, 53 P3d 940 (2002) (reversing traffic conviction where Oregon State Police officer lacked statutory authority to stop defendant in Washington for a traffic violation observed in Oregon), and State v. Pepper, 105 Or App 107, 108, 803 P2d 1213 (1990) (reversing convictions where state provided no authority for Oregon police officer to pursue and arrest the defendant in Washington), with State v. Smith, 246 Or App 614, 623, 268 P3d 644 (2011), rev den, 351 Or 675 (2012) (affirming conviction where tribal code “hot pursuit” provision authorized city police officer to pursue and stop the defendant for a traffic offense on the reservation).
The state concedes on appeal that Thompson lacked statutory authority to pursue and stop defendant in Oregon, and we agree that there is no affirmative authority in Oregon’s statutes for an out-of-state officer to pursue and stop a motorist in Oregon for out-of-state traffic violations.1 Likewise, Thompson lacked authority under the common [764]*764law to stop defendant in Oregon. At common law, a police officer generally had no authority to act outside the governmental unit employing the officer. See State v. Huffman, 49 Or App 823, 826, 621 P2d 78 (1980) (under traditional “bailiwick” rule, “police officers are authorized only to act within the boundaries of the governmental unit employing them”). The limited exception to that general rule allowed officers in “fresh pursuit” of a suspected felon who had committed a crime in the officer’s jurisdiction to pursue and make a warrantless arrest of that person outside the officer’s jurisdiction. See, e.g., State v. Barker, 143 Wash 2d 915, 921, 25 P3d 423, 425-26 (2001) (noting common-law exception for fresh pursuit of a person who committed a felony); Stevenson v. State, 287 Md 504, 509-10, 413 A2d 1340 (1980) (same); People v. Durham, 71 Ill App 3d 725, 726, 390 NE2d 517 (1979) (same).
Free access — add to your briefcase to read the full text and ask questions with AI
ARMSTRONG, P. J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. He assigns error to the trial court’s denial of his motion to suppress evidence obtained after a Washington State Trooper stopped him in Oregon for traffic violations committed in Washington. We conclude that the trooper’s stop of defendant was without lawful authority and thus violated Article I, section 9, of the Oregon Constitution. Accordingly, we reverse and remand.
The relevant facts are undisputed. Thompson, a Washington State Trooper, was driving an unmarked patrol car southbound on 1-5 around 1:40 a.m. Just as he was entering the Interstate Bridge, Thompson saw in his rearview mirror a car approaching at high speed. The special radar in Thompson’s patrol car measured the approaching car’s speed at 25 miles per hour over the posted speed limit. The car then got so close to Thompson’s patrol car that Thompson could no longer see the car’s headlights in his rearview mirror. The car moved into the left lane and accelerated past Thompson.
Based on the Washington traffic violations of speeding and following too close, Thompson decided to initiate a stop. Thompson followed defendant with his emergency lights activated while still in Washington, intending to have defendant pull over on the freeway near the Jantzen Beach exit in Oregon. After defendant did not stop near Jantzen Beach, Thompson activated his siren and his air horn. Defendant then slowed down and got in the right lane, but continued driving. That prompted Thompson to use his public address system to tell defendant to pull over. Defendant took the next freeway exit and stopped on the shoulder of Marine Drive in Portland. Before getting out of his patrol car, Thompson asked his Washington dispatch to contact the Portland police for assistance. Thompson approached defendant and immediately noticed that defendant smelled of alcohol and had bloodshot, watery eyes, and slurred speech. Defendant told Thompson that he had consumed three beers. Thompson returned to his patrol car with defendant’s identification card, requested Portland police assistance for [762]*762a possible DUII, and waited in his patrol car. Portland police officers arrived about eight to 12 minutes from the time of Thompson’s first call. After an investigation, the Portland officers arrested defendant for DUII.
Before trial on the Oregon DUII charge, defendant moved to suppress the evidence obtained as a result of Thompson’s traffic stop. Defendant contended that Thompson had no authority to stop defendant in Oregon for Washington traffic violations and thus the stop was an unlawful seizure in violation of Article I, section 9. The trial court assumed without deciding that Thompson did not have authority to conduct the stop. However, the court concluded that the stop did not violate Article I, section 9, because Thompson had probable cause to justify the initial traffic stop and reasonable suspicion of DUII to justify detaining defendant while waiting for Portland police to arrive. The trial court then convicted defendant of DUII after a stipulated facts trial.
On the undisputed facts in this case, we review the trial court’s denial of defendant’s motion to suppress for legal error. State v. Holdorf 355 Or 812, 814, 333 P3d 982 (2014).
We begin our analysis with the general proposition that, for the evidence obtained from Thompson’s stop to be admissible in defendant’s criminal prosecution, Thompson’s stop of defendant must have complied with the requirements of Article I, section 9. In that respect, it does not matter that Thompson is a Washington Trooper. The Oregon Supreme Court has emphasized that the focus of Article I, section 9, is to protect an individual’s rights in relation to the government; thus,
“[i]f the government seeks to rely on evidence in an Oregon criminal prosecution, that evidence must have been obtained in a manner that comports with the protections given to the individual by Article I, section 9, of the Oregon Constitution. It does not matter where that evidence was obtained (in-state or out-of-state), or what governmental entity (local, state, federal, or out-of-state) obtained it; the constitutionally significant fact is that the Oregon government seeks to use the evidence in an Oregon criminal prosecution.”
[763]*763State v. Davis, 313 Or 246, 254, 834 P2d 1008 (1992) (emphasis in original). Because the state seeks to introduce evidence in a criminal prosecution of defendant that derived from Thompson’s stop of defendant, we must confront whether Thompson’s stop and detention of defendant in Oregon comported with Article I, section 9.
Article I, section 9, provides, in part, that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.” Thus the right protected by Article I, section 9, is the right of the people to be secure from unreasonable searches and seizures. However, the provision does not, of itself, confer any authority on any person to effect a warrantless seizure of a person in Oregon. That authority must come from another source, such as the established common law or an Oregon statute. Compare State v. Meyer, 183 Or App 536, 548, 53 P3d 940 (2002) (reversing traffic conviction where Oregon State Police officer lacked statutory authority to stop defendant in Washington for a traffic violation observed in Oregon), and State v. Pepper, 105 Or App 107, 108, 803 P2d 1213 (1990) (reversing convictions where state provided no authority for Oregon police officer to pursue and arrest the defendant in Washington), with State v. Smith, 246 Or App 614, 623, 268 P3d 644 (2011), rev den, 351 Or 675 (2012) (affirming conviction where tribal code “hot pursuit” provision authorized city police officer to pursue and stop the defendant for a traffic offense on the reservation).
The state concedes on appeal that Thompson lacked statutory authority to pursue and stop defendant in Oregon, and we agree that there is no affirmative authority in Oregon’s statutes for an out-of-state officer to pursue and stop a motorist in Oregon for out-of-state traffic violations.1 Likewise, Thompson lacked authority under the common [764]*764law to stop defendant in Oregon. At common law, a police officer generally had no authority to act outside the governmental unit employing the officer. See State v. Huffman, 49 Or App 823, 826, 621 P2d 78 (1980) (under traditional “bailiwick” rule, “police officers are authorized only to act within the boundaries of the governmental unit employing them”). The limited exception to that general rule allowed officers in “fresh pursuit” of a suspected felon who had committed a crime in the officer’s jurisdiction to pursue and make a warrantless arrest of that person outside the officer’s jurisdiction. See, e.g., State v. Barker, 143 Wash 2d 915, 921, 25 P3d 423, 425-26 (2001) (noting common-law exception for fresh pursuit of a person who committed a felony); Stevenson v. State, 287 Md 504, 509-10, 413 A2d 1340 (1980) (same); People v. Durham, 71 Ill App 3d 725, 726, 390 NE2d 517 (1979) (same). Thus, at common law, probable cause, in the absence of fresh pursuit of a suspected felon, was not an independent source of authority for an officer to act in his or her official capacity outside the officer’s jurisdiction. The Oregon legislature has codified a version of the common-law fresh-pursuit rule, ORS 133.430, but, as noted, 278 Or App at 763 n 1, Thompson’s conduct did not fall within the authorization of that statute.
Our inquiry thus reduces to whether Thompson’s lack of authority to stop defendant in Oregon, under the circumstances presented here, constitutes a violation of Article I, section 9, because the stop was “unreasonable.” The state argues that, because Thompson had probable cause to stop defendant for traffic violations and developed reasonable suspicion of DUII during the stop, the seizure of defendant was lawful under Article I, section 9. The state characterizes the deficiency in Thompson’s authority for the stop as only having exceeded the authority granted to him by Oregon statute and emphasizes that whether a seizure is constitutional is not measured by statutory standards.
The state’s argument, however, does not confront what is afoot in this case. Thompson did not merely violate an Oregon statute, which would not provide a basis for the suppression of evidence. See ORS 136.432. Thompson acted without authority of law because, as an out-of-state officer, he had no authority to act in Oregon. This is not a case in [765]*765which statutory standards stricter than those imposed by the constitution were violated; this is a case in which there has never been a lawful basis for the stop that Thompson made of defendant in Oregon. Cf. State v. Atkinson, 298 Or 1, 8-9, 688 P2d 832 (1984) (“Lawful impoundment of a vehicle is a necessary prerequisite to an inventory of its contents by the government or its agents. *** If the government agents had no authority to take custody of the property, then there can be no lawful intrusion into it. The inquiry [under Article I, section 9] ends there”).
The touchstone for Article I, section 9, is reasonableness. State v. Fair, 353 Or 588, 602, 302 P3d 417 (2013). That concept of reasonableness logically presupposes that the police effecting a search or seizure based on probable cause are exercising their lawful authority to act in their official capacity as the police. When Thompson stopped defendant for traffic violations in Oregon, he acted beyond his jurisdiction and was thus not exercising his lawful authority as a Washington State Trooper. As a result, Thompson’s unlawful seizure of defendant was just as unreasonable as a traffic stop made without the requisite probable cause. Because Thompson’s unlawful stop of defendant violated Article I, section 9, the evidence derived from that stop must be suppressed.2 Accordingly, the trial court erred when it [766]*766denied defendant’s motion to suppress evidence obtained from Thompson’s stop of defendant.
Reversed and remanded.