State v. Martin

785 P.2d 801, 100 Or. App. 256, 1990 Ore. App. LEXIS 32

• Court: Court of Appeals of Oregon
• Decided: January 17, 1990
• Docket: C88-02-30931; CA A49620
• Status: Published

Opinions

PER CURIAM

Defendant appeals from his convictions for driving under the influence of intoxicants, delivery of methamphetamine, and possession of methamphetamine. ORS 813.010; ORS 475.992. He assigns as error the denial of his motion to suppress.

Officer Lish saw defendant slumped over the steering wheel of a car in a store parking lot. The car’s engine was running. She went over “to make sure [that defendant was] all right.” “I didn’t know if he was sick or asleep or what.” When her tapping on the window received no response, she opened the car door and shook defendant’s shoulder. She smelled alcohol and observed other signs of intoxication and arrested defendant for DUII. A search incident to that arrest led to the discovery of the methamphetamine that is the basis for the other convictions.¹ The trial court found that the officer was “inquiring] into the well-being of the defendant,” and the evidence supports that characterization. Where, as here, the officer’s sole aim is to render emergency assistance, “incriminating evidence arising from the intrusion by law enforcement officers must be suppressed.” State v. Bridewell, 306 Or 231, 240, 759 P2d 1054 (1988).² The trial court erred in not suppressing all of the evidence.

Reversed and remanded for a new trial.

1 The state argues that defendant consented to the search. However, the consent followed an improper arrest and was not voluntary in the light of all the circumstances. See State v. Williamson, 307 Or 621, 772 P2d 404 (1989).

2 The record does not support the position of the state and of the dissent that, when Lish opened the door, she was acting in a criminal investigatory role and making a “stop, based on reasonable suspicion.” 100 Or App at 258.