State v. Sinkey

                                       673

 Argued and submitted March 18, 2019, reversed and remanded April 29, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                      ROBERT A. SINKEY,
                       Defendant-Appellant.
                  Hood River County Circuit Court
                       150127CM; A165784
                                   

    Defendant appeals a judgment of conviction for two counts of recklessly
endangering another person, ORS 163.195, after a conditional guilty plea, assigning error to the trial court’s denial of his motion to suppress evidence derived
from an officer’s warrantless entry onto defendant’s property to arrest defendant.
Held: Although the facts known to the officer provided reasonable suspicion that
defendant had committed the crime of recklessly endangering another person,
they did not provide objective probable cause that defendant had committed the
crime so as to support the officer’s entry onto defendant’s property to arrest him.
The trial court therefore erred in denying defendant’s motion to suppress.
    Reversed and remanded.



    Karen Ostrye, Judge.
   Sara F. Werboff, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Christopher Page, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Powers, Presiding Judge, and Armstrong, Judge,
and Kistler, Senior Judge.
    ARMSTRONG, J.
    Reversed and remanded.
674                                           State v. Sinkey

        ARMSTRONG, J.
         Defendant appeals a judgment of conviction for
two counts of recklessly endangering another person, ORS
163.195, after he entered a conditional guilty plea. The
charges arose out of a county sheriff deputy’s investigation
of a call to 9-1-1 to report “a possible drunk driver.” The
trial court denied defendant’s motion to suppress evidence
derived from the deputy’s warrantless entry onto defendant’s
property to arrest defendant. Because we conclude that the
9-1-1 caller’s information did not provide sufficient information for probable cause to arrest defendant for a crime, we
conclude that the trial court erred in denying defendant’s
suppression motion, and we reverse defendant’s convictions.
          We review the trial court’s ruling on a suppression
motion for legal error and are bound by the trial court’s
express and implicit findings of fact if there is constitutionally sufficient evidence in the record to support them. State
v. Ehly, 

, 

 (1993). We recite the facts
consistent with the record and the trial court’s express and
implicit findings. State v. Norgren, 

, 

 (2017), rev dismissed, 

 (2018).
         A named person called 9-1-1 to report that he had
seen a “possible drunk driver,” a person who had been drinking while driving a car that had stopped at a market. The
caller gave a detailed description of the driver and the vehicle. The caller emphasized that the driver “was really slow”
getting out of the car to go into the market and came out
with more beer. The caller said that there were two minors
in the car. The caller followed the driver a short distance
and provided the name of the road and the driver’s direction
of travel.
         Deputy Paulsen responded to the call and determined that the car was licensed to defendant. Believing
that he had probable cause to arrest defendant for driving
under the influence of intoxicants (DUII) and recklessly
endangering another person, Paulsen drove to defendant’s
address. He passed signs along defendant’s driveway stating, “Private Road Keep Out.” A hand-written sign stated,
“Attention . . . this is a private residence!!! If you wish to
Cite as 

 (2020)                                                675

view it . . . Please make an appointment!!! Please respect my
Privacy!!!” Paulsen saw defendant’s car parked in the driveway. He knocked on the front door, which defendant’s teenage son opened. Defendant came to the door, and Paulsen’s
further investigation revealed evidence that led to the two
charges of recklessly endangering another person.1
         Defendant filed a motion to suppress, contending
that Paulsen lacked probable cause and exigent circumstances to enter defendant’s property without a warrant,
and that entry onto defendant’s property violated Article I,
section 9, of the Oregon Constitution. The trial court denied
the motion, concluding that the 9-1-1 caller’s information
had given Paulsen probable cause to arrest defendant for
the offenses of DUII and recklessly endangering another
person. The court concluded further that Paulsen’s entry
onto defendant’s property without a warrant was justified
by exigent circumstances, based on the risk of dissipation of
evidence of DUII and a risk of harm to the minors.
         On appeal, defendant contends that Paulsen’s warrantless entry onto his property was not supported by probable cause or exigent circumstances and therefore violated
Article I, section 9, of the Oregon Constitution. Because we
agree with defendant that Paulsen lacked probable cause
that defendant had committed an offense, we conclude that
the trial court erred in denying defendant’s suppression
motion.
        A warrantless entry and search of premises is “per se
unreasonable unless it falls within one of the few specifically established and carefully delineated exceptions to
the warrant requirement.” State v. Bridewell, 

, 

 (1988). It is undisputed that the signs on
defendant’s driveway communicated defendant’s intention
to exclude the public from his property and that a warrant
or an exception to the warrant requirement was therefore
required for law enforcement officers to enter the property.2

    1
      In a separate case, defendant was charged with DUII, to which he pleaded
no contest.
    2
      The state does not dispute that Paulsen’s entry onto defendant’s property
constituted a search that required a legal justification and that the evidence that
defendant sought to suppress was a product of the search.
676                                             State v. Sinkey

State v. Digby/Dixson, 

, 

 (1988)
(“[I]f a land is fenced, posted or otherwise closed off, one
does not enter it without permission or, in the officers’ situation, permission and a warrant.”). One exception to the warrant requirement allows a search of premises when there
is probable cause that a crime has occurred and the officer
faces exigent circumstances. State v. Stevens, 

, 

 (1991); State v. Perrott, 

,
839, 

 (2017). Defendant contends that Paulsen’s
entry onto his property was not supported by probable cause
that defendant had committed a crime. The state responds
that the caller’s information provided probable cause that
defendant had committed DUII and recklessly endangering
another person.

         An informant’s reliable report can furnish the
required facts and inferences to establish probable cause
of criminal activity. State v. Pollock, 

, 

 (2003), aff’d on other grounds, 

, 

 (2004). The offense of recklessly endangering another
person occurs when a defendant “recklessly engages in conduct which creates a substantial risk of serious physical
injury to another person.” ORS 163.195(1). The focus of the
DUII statute, ORS 813.010, “is on the act of driving, and
doing so while impaired.” State v. Eumana-Moranchel, 

, 

 (2012). The parties agree that here,
the required probable cause for either offense depends on
information that defendant was driving while impaired—a
necessary element of DUII and the conduct alleged to have
created the risk to defendant’s passengers for the offense of
reckless endangerment.

          Defendant does not challenge the 9-1-1 caller’s reliability. See State v. Bybee, 

, 

(1994) (describing indicia of reliability of a citizen informant’s
report). Defendant also does not dispute that the caller provided facts that were sufficient to give rise to a reasonable
suspicion that defendant was driving while intoxicated. See

 (because members of the public have a common
knowledge about whether a person is under the influence
of alcohol, an informant’s statement that a person is intoxicated conveys sufficient information to allow a reviewing
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judge to determine that the facts created reasonable suspicion); State v. Walker, 

, 

,
rev den, 

 (2016) (an officer may have “reasonable
suspicion” sufficient to justify an investigatory stop of a
person even if the officer does not have sufficient reason to
believe that it is probable that the person has committed, or
is about to commit, a crime). But defendant contends that
those facts did not provide objective probable cause that he
drove while impaired.
          Under Article I, section 9, probable cause exists
if the arresting officer subjectively believes that it is more
likely than not that an offense has been committed and that
belief is objectively reasonable. State v. Williams, 

, 

 (2001); see also ORS 131.005(11)
(“probable cause” means that there is a substantial objective
basis for believing that more likely than not an offense has
been committed and a person to be arrested has committed
it). In determining whether objective probable cause exists,
the court considers the totality of the circumstances presented to the officer and the reasonable inferences that may
be drawn from those circumstances; no single factor is dispositive. State v. Miller, 

, 

(2014).
         Here, as relates to probable cause, the evidence supports the following findings and inferences: Defendant had
been drinking beer while driving; defendant got out of his
car at the market very slowly; defendant purchased beer at
the market; and the caller believed he was reporting a “possible drunk driver.” Whether those findings establish probable cause that defendant drove while intoxicated is a legal
question. State v. Woodall, 

, 

(2002). We conclude that they do not.
          A person’s driving is “impaired” for purposes of
DUII if the person is “adversely affected by intoxicants to a
perceptible degree while driving.” State v. Mazzola, 

, 

 (2015); ORS 813.010(1)(b), (c); see
also State v. Stroup, 

, 

 (1997)
(“a person is under the influence of intoxicating liquor or a
controlled substance when the person’s physical or mental
facilities are adversely affected to a noticeable or perceptible
678                                           State v. Sinkey

degree”). To constitute probable cause, there must be information from which a law enforcement officer could conclude
that it is more likely than not that defendant drove while
he was physically or mentally impaired. The caller did not
provide any information about defendant’s driving; nor was
there any information concerning the usual observational
indications of a driver’s impairment from intoxicants, such
as watery or blood shot eyes, slurred speech, or an odor
of alcohol. See, e.g., State v. Forrest, 

,

 (2001) (describing facts giving rise to probable
cause necessary to conduct field-sobriety tests); State v.
Gilmour, 

, 

, rev den, 

 (1995) (same).
         The state contends that the caller’s report of a “possible drunk driver,” that defendant was drinking while driving (showing a lack of judgment), and that defendant moved
very slowly when getting out of the car at the market (possible physical impairment), allow an inference of impaired
driving. Although we agree that those facts allow the
inference that defendant was possibly impaired while driving, which would have provided a basis to stop defendant,
Bybee, 

, they do not allow the inference that defendant probably drove while impaired, which
was required to provide probable cause for Paulsen to enter
defendant’s property without a warrant to arrest him for the
offense of DUII or recklessly endangering another person.
The trial court therefore erred in denying defendant’s suppression motion.
        Reversed and remanded.