State v. Phillips

                                      239

   Argued and submitted January 26, reversed and remanded June 9, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     DONALD RAY PHILLIPS,
                       Defendant-Appellant.
                    Douglas County Circuit Court
                       18CR54193; A170229
                                   

     Defendant was convicted of 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. He appeals, arguing that the trial court erred in denying his
motion to suppress the evidence of his intoxication because he was unlawfully
seized when one of the deputies directed him to turn around and put his hands
behind his back. The state argues that the seizure was justified by both the deputy’s reasonable concern for safety and by his reasonable suspicion that defendant
had attempted to interfere with his cousin’s arrest by revving his ATV’s engine
and approaching the scene. Held: Neither the officer-safety doctrine nor reasonable suspicion provided justification for the deputy’s order. Assuming that the
deputy’s safety concerns were reasonable, the order for defendant to turn around
and put his hands behind his back to be handcuffed was disproportionate to the
minimal threat that defendant posed. Moreover, although the deputy may have
subjectively believed that defendant was attempting to interfere with the arrest
because he revved his ATV’s engine and approached the arrest scene, that belief
was not objectively reasonable. Permitting the deputy to detain defendant based
solely on a subjective belief that defendant was attempting to interfere would
effectively criminalize observing police officers and render interfering with a
peace officer an attitude crime.
    Reversed and remanded.



    William A. Marshall, Judge.
  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.
240                                     State v. Phillips

  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  KAMINS, J.
  Reversed and remanded.
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        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]
242                                                  State v. Phillips

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.

    1
      The trial court determined that this statement was a mere suggestion
rather than an order.
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         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, 

, 

(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, 

, 

(2010) (internal quotation marks omitted). When an individual is seized without a warrant, that seizure is per se
244                                           State v. Phillips

unreasonable unless justified by one of the established
and well-delineated exceptions to the warrant requirement. State v. Edwards, 

, 

(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, 

, 

 (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. 

 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. 

 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, 

, 

(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
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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-ordeath decisions in a matter of seconds,” we generally allow
“considerable latitude to the police in choosing how to protect
themselves.” State v. Madden, 

, 

(2018). That latitude, however, is bounded by the principle
that “protective measures must be proportionate to the perceived threat.” 

 Accordingly, “the officer safety doctrine
does not excuse protective measures that are disproportionate to any threat that the officers reasonably perceive.” State
v. Rudder, 

, 

 (2009). Although we
are “sensitive to the dangers inherent in police work and
to the difficulties inherent in officer safety decisions, that
does not and cannot mean that we regard those concerns as
having greater weight than the constitutional right of all
persons.” 

          Cutsforth’s decision to immediately order defendant
to turn around to be handcuffed was disproportionate to
any threat defendant posed to the deputies by approaching
the arrest scene and placing his hand in his pocket. At the
time of Cutsforth’s order, defendant was still some distance
away from the arrest scene. Although he did not stop moving, defendant complied with Cutsforth’s warning to stay on
the grass on the far side of the road. The trial court did
not find that he exhibited any violent or aggressive behaviors, and there was no reason to believe that he was armed
with a firearm or any other weapon that could have been
used to cause serious harm to the deputies from a distance.
Handcuffing defendant imposed a significant restraint on
his freedom of movement when, by contrast, the safety risk
that defendant posed to the deputies was minimal. See, e.g.,
State v. Johnson, 

, 

, rev den,

 (1993) (concluding that immediately handcuffing
the defendant was disproportionate to the threat he posed
to officers by being present at the arrest scene with his hand
concealed when police knew he had previously been arrested
on weapons charges).
246                                                       State v. Phillips

          Additionally, any risk defendant posed to the deputies at the scene was mitigated by the fact that Cutsforth
was serving as a designated cover officer. As Cutsforth testified, his job during the arrest was to “ensur[e] that the situation is under control from start to finish,” including “making sure that nobody is interjecting into that contact.” As a
result, Cutsforth was free to monitor defendant to ensure
that he remained at a safe distance and take action if defendant tried to interfere with the arrest or began to act threateningly. See State v. Hebrard, 

, 

 (2011) (concluding that, although officer-safety concerns may have initially justified the lone officer’s order for
four otherwise cooperative suspects to put their hands up,
the safety concerns did not justify handcuffing those individuals once other officers arrived).
         Up until the point that Cutsforth ordered defendant to turn around and put his hands behind his back, the
only risk that defendant reasonably posed to the deputies
was walking toward the scene of an arrest and placing his
hand in his pocket. Apart from revving his engine loudly
and approaching the scene assertively, nothing else about
defendant’s behavior would have suggested that he was so
dangerous that he needed to be placed in handcuffs or that
he would not comply with a more proportionate measure.2
As a result, Cutsforth’s order for defendant to turn around
to be handcuffed was disproportionate to any threat and
was therefore unreasonable. The officer-safety doctrine did
not provide a lawful basis for Cutsforth’s order.
B. Reasonable Suspicion
         The state next asserts that Cutsforth’s order was
justified as part of an investigatory detention after
Cutsforth developed reasonable suspicion that defendant
had attempted to interfere with the performance of his

     2
       Although defendant did not immediately comply with Cutsforth’s order to
turn around and put his hands behind his back, the reasonableness of the protective measures that Cutsforth chose is assessed under the totality of the circumstances at the time that he gave the order. See Madden, 

 (explaining
that the officer-safety doctrine requires evaluation of “whether the precautions
taken were reasonable under the circumstances as they reasonably appeared at
the time that the decision was made” (internal quotation marks omitted; emphasis added)).
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and Pitcher’s duties, in violation of ORS 162.247(1)(a).3 In
relevant part, ORS 162.247(1)(a) prohibits a person from
“[i]ntentionally act[ing] in a manner that prevents, or
attempts to prevent, a peace officer … from performing the
lawful duties of the officer with regards to another person.”
To attempt to prevent an officer from performing the officer’s
lawful duties, a defendant must engage in a physical action
that, although it does not completely stop officers from performing their lawful duties, nevertheless constitutes a substantial step toward that end. State v. Scheirman, 

, 

 (2018).
         Here, the state argues, Cutsforth had a reasonable
suspicion that defendant was attempting to stop the deputies’ performance of their duties after he observed defendant rev his engine six times—loudly enough to distract
both of the deputies from the arrest of defendant’s cousin—
dismount his ATV, and (at least in Cutsforth’s view) aggressively approach the arrest scene. Accordingly, to investigate
that crime, Cutsforth was permitted to detain defendant by
ordering him to turn around and put his hands behind his
back to be handcuffed. Defendant responds that Cutsforth
lacked the requisite reasonable suspicion because, as a matter of law, making a loud noise and approaching the scene of
an arrest from the opposite side of the road cannot violate
the statute.4
        Article I, section 9, of the Oregon Constitution and
ORS 131.615 permit a police officer to conduct a “brief, informal detention for purposes of on-the-scene investigation of
criminal activity” when the officer develops a reasonable
suspicion based on “specific and articulable facts … that
criminal activity is afoot.” State v. Washington, 

      The state does not contend that Cutsforth had reasonable suspicion to
detain defendant for driving his ATV recklessly or exceeding the posted five mileper-hour speed limit.
    4
      Although defendant does not argue this point, we observe that the restriction imposed by handcuffing defendant typically converts a stop into an arrest,
requiring the officer to possess probable cause, not reasonable suspicion, of the
commission of a crime. See ORS 133.005(1) (an arrest occurs when a person is
placed “under actual or constructive restraint”); State v. Werowinski, 

, 

, rev den, 

 (2002) (recognizing that handcuffing a
suspect is often “a key factor in transforming the detention associated with a stop
into an arrest”).
248                                                       State v. Phillips

454, 461, 

 (2017) (internal quotation marks
omitted). The facts giving rise to the officer’s suspicion must
be “particularized to the person [stopped] and based on the
person’s conduct.” State v. Martin, 

, 

 (2014). Moreover, “an officer may not stop a person simply because the person’s conduct is consistent with
criminal conduct; the nature of the conduct matters.” 

.
         Here, the record does not support a reasonable inference that defendant attempted to prevent Cutsforth and
Pitcher from performing their duties by revving his ATV’s
engine and approaching the arrest scene. Although the trial
court’s findings reflect that the deputies were temporarily
prevented from performing their duties when they were distracted by defendant’s approach, they do not suggest that
defendant intended that to happen or was even aware that
his actions prevented their official duties. See Scheirman,

 (“[M]erely creating a distraction, without
the intent to perform an action objectively capable of stopping the performance of duties is not the type of prevention
ORS 162.247(1)(a) addresses.”).
          Here, defendant never refused to comply with a deputy’s command to stay away from the arrest scene or disregarded a warning that he was interfering, so as to support a
reasonable inference that his interference was intentional.
Cf. 

 (record contained sufficient evidence that defendant
intended to interfere with performance of officers’ duties
when he repeatedly approached arrest scene despite officers’ multiple warnings that he was interfering). Defendant
heeded the single warning he was given in the time before
he was arrested and remained some distance away from the
arrest scene on the far side of the road. Further, the trial
court did not find that anything about defendant’s demeanor
suggested that he likely intended to interfere with his cousin’s arrest.5
        The only evidence that may circumstantially suggest that defendant intended to interfere by approaching
     5
       The incident was captured on Cutsforth’s body cam and supports the trial
court’s finding that the manner of defendant’s approach did not suggest an intent
to interfere, nor did it suggest an intent to engage in an altercation.
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the arrest scene was that he loudly revved his ATV’s engine
several times as he parked, and Cutsforth interpreted his
approach as aggressive. Under the totality of the circumstances, we are unpersuaded that that evidence gives
rise to an objectively reasonable suspicion that defendant
attempted to prevent the arrest by approaching. See DeNucci
v. Henningsen, 

, 

 (2012) (ORS
162.247(1)(a) does not apply to mere noise like a person’s voice
that distracts an officer; it applies only to “physical conduct”
that prevents or attempts to prevent an officer from performing the officer’s duties). Although Cutsforth interpreted
defendant revving his ATV’s engine as a sign of aggression
because it is loud, permitting him to detain defendant based
solely on that subjective belief would render ORS 162.247
little more than an attitude crime. See State v. Bledsoe, 

, 

 (2021) (James, J., concurring)
(observing that an arrest under the interfering with a peace
officer statute “largely turns on the subjective perceptions
of the officer about the attitude of the defendant during the
police-citizen encounter”). ORS 162.247 does not criminalize the act of approaching and observing officers performing
their duties, regardless of the officer’s subjective belief as to
the attitude of the observer.
         Particularly at an event like Dunes Fest, it is not
uncommon for a driver of a recreational vehicle to rev the
engine for reasons other than communicating aggression,
or for no reason at all. Given the trial court’s finding that,
at the time that defendant was approaching, the deputies
were unaware that he was the other person that they had
seen accompanying the person that they were arresting,
Cutsforth’s suspicion that defendant attempted to interfere
in the arrest was not objectively reasonable. Accordingly,
we conclude that Cutsforth lacked a legal basis for seizing
defendant.
                     IV. CONCLUSION
        In sum, neither reasonable officer-safety concerns
nor reasonable suspicion justified Cutsforth’s order for defendant to turn around and put his hands behind his back.
Accordingly, Cutsforth’s order violated Article I, section 9,
and the trial court should have granted defendant’s motion
250                                          State v. Phillips

to suppress all the evidence obtained during his detention.
Because that evidence—including defendant’s field sobriety
test results, BAC reading, and incriminating statements—
was critical to the state’s case at trial, the error was not
harmless. See State v. Lachat, 

, 589, 

 (2019), rev den, 

 (2020) (error is only harmless
if there is “little likelihood” that it affected the verdict).
        Reversed and remanded.