S054940, Opinion — State v. Miller

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Argued and submitted March 4, decision of Court of Appeals reversed and case
remanded to that court for further proceedings August 14, 2008
See 226 Or App 78, 202 P3d 919 (2009)

STATE OF OREGON,
Petitioner on Review,
v.
ROBERT ARTHUR MILLER,
Respondent on Review.
(CC 02CR0420; CA A121431; SC S054940)
191 P3d 651

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On review from the Court of Appeals .*

Robert M. Atkinson, Assistant Attorney General, Salem,
argued the cause for petitioner on review. With him on the
briefs were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.

Erin K. Galli, Chilton, Ebbett & Galli, LLC, Portland,
argued the cause and filed the brief for respondent on review.

Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Walters, Justices .**

DE MUNIZ, C. J.

The decision of the Court of Appeals is reversed and the
case is remanded to that court for further proceedings.

\* Appeal from Josephine County Circuit Court, Allan H. Coon, Judge. 211 Or
App 667, 156 P3d 125 (2007).

** Linder, J., did not participate in the consideration or decision of this case.

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# DE MUNIZ, C. J.

The state seeks review of a Court of Appeals decision
reversing defendant's convictions for drug manufacturing.
The Court of Appeals reversed defendant's convictions rea-
soning, in part, that (1) on appeal, the state had conceded
that defendant was placed under arrest when first
restrained; and (2) at a pretrial hearing, the deputy sheriff
who arrested defendant had testified that he lacked probable
cause for the arrest. State v. Miller, 211 Or App 667, 156 P3d
125 (2007). For the reasons that follow, we now reverse the
Court of Appeals decision and remand this case to that court
for further proceedings.

We take the facts from the record and the Court of
Appeals opinion. In June 2002, a Josephine County Deputy
Sheriff was dispatched to investigate a single vehicle acci-
dent in which a pickup truck had reportedly rolled over on a
highway. En route, the deputy came across defendant walk-
ing alone along the road about a half mile from the reported
crash site. The deputy observed that the description he had
received of the pickup's driver matched that of defendant and
that defendant had debris in his hair and on his clothing, as
well as a number of fresh cuts and scrapes on his arms. The
deputy stopped and spoke with defendant. When asked if he
had been involved in an accident, defendant replied, "That's
not my truck. I wasn't driving." Despite that denial, the dep-
uty nevertheless held defendant until a second officer arrived
at their location. The deputy then handcuffed defendant,
placed him in the second patrol car, and both patrol vehicles
proceeded to the crash site.

Arriving at the crash site, the deputy observed a
pickup truck turned upside down on the roadway and the
remains of a methamphetamine laboratory and precursor
chemicals strewn around the vehicle and inside the cab of the
truck. Shortly after that discovery, a third officer at the scene
positively identified defendant as having been the pickup's
driver shortly before the crash. Defendant was then informed
that he was under arrest for "failure to leave his name at the
scene of an accident,"1 and manufacture of a controlled sub-
stance; the deputy then advised defendant of his Miranda
rights.

! The offense-more properly known as the failure to perform the duties of a
driver-is a Class A misdemeanor. ORS 811.700(1)(c) provides:

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Defendant subsequently was charged on a number
of criminal counts relating to the illegal manufacture of con-
trolled substances. Before trial, he moved to suppress all the
evidence against him that had been seized at the crash site.
Defendant argued that his actual arrest had not taken place
at the crash site but had occurred earlier when the deputy
initially handcuffed him and put him in the patrol car for
transport back to the accident scene. Defendant contended
that, at that point, the deputy had lacked probable cause to
arrest him, thereby nullifying both his arrest and the seizure
of any evidence thereafter.

At the suppression hearing that followed, the deputy
testified to the events leading to his discovery of the illicit
drug manufacturing materials, including taking defendant
into custody after their roadside encounter and transporting
him to the accident scene. On cross-examination, defense
counsel and the deputy engaged in the following exchange
concerning the deputy's initial basis for connecting defendant
with the reported accident:

"[Defense Counsel]: And isn't it true that even the
whole time you were-well, when you took [defendant] back
to the [accident] scene, you really did not know whether he
had been involved in that at all?

"[Deputy]: I had reasonable suspicion, but I had not
yet reached sufficiently [sic] to call it probable cause."

The trial court denied defendant's motion to sup-
press, concluding that, at the time that defendant was first
stopped and taken into custody, the deputy had possessed
probable cause to arrest defendant for "failure to leave his
name at the scene of an accident." Defendant subsequently

"A person commits the offense of failure to perform the duties of a driver
when property is damaged if the person is the driver of any vehicle and the per-
son does not perform duties required under any of the following:

"(c) If the person is the driver of any vehicle involved in an accident result-
ing only in damage to fixtures or property legally upon or adjacent to a high-
way, the person shall do all of the following:

"(A) Take reasonable steps to notify the owner or person in charge of the
property of such fact and of the driver's name and address and of the registra-
tion number of the vehicle the driver is driving.

"(B) Upon request and if available, exhibit any document issued as official
evidence of a grant of driving privileges to the driver."

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entered conditional pleas of no contest under ORS 135.3352 to
one count of possessing a precursor substance with intent to
manufacture a controlled substance, ORS 475.967, and two
counts of manufacturing a controlled substance, former ORS
475.992 (2001), renumbered as ORS 475.840 (2005). The trial
court imposed consecutive sentences for defendant's crimes.

On defendant's appeal, the state did not dispute that
defendant was arrested at the time that he was handcuffed,
placed in the patrol car, and taken to the crash site. Miller,
211 Or App at 671. Viewing that concession together with the
deputy's testimony at trial, the Court of Appeals framed the
issue before it as

"whether the officer's testimony that he did not have prob-
able cause to arrest defendant is dispositive, or whether the
trial court could properly rely on the surrounding circum-
stances to infer that the officer subjectively believed that
defendant had committed a criminal offense in his
presence."

Id. To resolve that question, the Court of Appeals relied on
the following statement from this court's decision in State v.
Owens, 302 Or 196, 204, 729 P2d 524 (1986):

" "The test is not simply what a reasonable officer could
have believed when he conducted a warrantless search or
seizure, but it is what this officer actually believed, based
upon the underlying facts of which he was cognizant,
together with his own training and experience. Neither is
the test whether the officer articulates to the suspect the
basis for a second ground for arrest. What is required is that
the officer formulate such a basis to himself at the time he
acts.'"

Miller, 211 Or App at 671-72, quoting Owens, 302 Or at 204
(first emphasis in original; second emphasis added by Court
of Appeals).

2 ORS 135.335(3) provides:

"With the consent of the court and the state, a defendant may enter a con-
ditional plea of guilty or no contest reserving, in writing, the right, on appeal
from the judgment, to a review of an adverse determination of any specified
pretrial motion. A defendant who finally prevails on appeal may withdraw the
plea."

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Focusing on the deputy's testimony that he had
lacked probable cause to arrest when he first restrained
defendant, the Court of Appeals held that, under Owens, the
deputy had arrested defendant before possessing the subjec-
tive belief of wrongdoing required to constitutionally do so.
Id. at 672. That is, the Court of Appeals determined that,
given the deputy's testimony, the trial court could not reason-
ably have inferred from the circumstances and actions follow-
ing the deputy's initial contact with defendant that the dep-
uty subjectively believed that he had probable cause. It would
be improper to do so, the Court of Appeals opined, because,

"generally, it is only when the record is silent as to what an
officer actually believed at the time of the arrest that we
resort to reasonable inferences based on the officer's con-
duct and surrounding circumstances to ascertain whether
he formulated a probable cause belief at the time that he
effected the arrest. * * * Here, there is nothing in the record
to cast doubt on the intended meaning of the officer's testi-
mony when he testified that he had not yet formulated a
probable cause belief at the time of the arrest."

Id. at 672 (internal citations omitted). As a result, the Court
of Appeals reversed defendant's convictions.3 We allowed the
state's petition for review to examine the Court of Appeals'
analysis of the subjective probable cause requirement enun-
ciated in Owens and its application to the facts of this case.

On review, the state contends that this court should
revisit and overturn the probable cause analysis articulated
in Owens. Specifically, the state argues that the identifica-
tion in Owens of subjective belief as a component of probable
cause represents an "unprecedented aspect" of Oregon search
and seizure law. The state also argues that, for purposes of
Article I, section 9, of the Oregon Constitution,4 Owens

3 Because it reversed defendant's convictions, the Court of Appeals did not
address defendant's other assignment of error relating to the trial court's imposi-
tion of consecutive sentences.

4 Article I, section 9, provides:

"No law shall violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or seizure; and no
warrant shall issue but upon probable cause, supported by oath, or affirmation,
and particularly describing the place to be searched, and the person or thing to
be seized."

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appears to confer on criminal defendants the right to require
law enforcement officers to subjectively reach, and articulate
in court, the correct legal conclusions regarding the factual
bases for the arrests they make. The existence of such a right,
the state continues, is not supported by the text, history, or
interpretive case law of Article I, section 9, and, as a result,
has no place in Oregon's search and seizure jurisprudence.

We begin our examination of this case by first noting
that the state's focus on Owens as the wellspring of the sub-
jective component of the probable cause inquiry in Oregon is
misplaced. Long before Owens, this court recognized that law
enforcement officers' belief in the culpability of those they
subjected to warrantless arrests was a key factor in deter-
mining the legality of those arrests.

One of the early applications of that principle is
found in State v. Lee, 120 Or 643, 253 P 533 (1927). In Lee,
after police officers had executed a search warrant for an ille-
gal distillery on a small farm, they followed the odor of fer-
menting mash to a neighboring farm-that of the defen-
dant-some distance away. Although the officers did not
have a warrant to search the second farm, the odor of mash
led them to the barn, where they discovered a 100-gallon still
and 600 gallons of corn mash. The officers then arrested the
defendant. In upholding the validity of that arrest, the court
concluded:

"It is not essential in making an arrest without a war-
rant that the officer must absolutely know that an offense is
being committed. He must believe it is being committed and
must so believe upon the evidence of his own senses."

Id. at 650 (emphasis added).

Although the defendant in Lee had argued that the
search leading to his arrest had violated Article I, section 9,
the court declined to consider that claim as a constitutional
one. It reasoned that the defendant's barn-unused for any
family or domestic purpose other than a distillery-was inca-
pable of being viewed as a dwelling place and was therefore
not entitled to the state constitutional protections that defen-
dant had urged. Id. at 649-50.5 Four years later, however,

5 Of course, this court no longer adheres to Lee's holding that Article I, section
9, applies to dwellings but not barns. See State v. Smith, 327 Or 366, 372, 963 P2d
642 (1998) (defining protected spaces for the purposes of Article I, section 9).

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this court gave the belief requirement set out in Lee a consti-
tutional dimension in the course of deciding another illegal
liquor case, State v. Duffy, 135 Or 290, 301, 295 P 953 (1931).

In Duffy, police officers once again followed the odor
of fermenting mash to the site of an illegal distilling opera-
tion, this time in a residential Portland neighborhood. Acting
only on the limited information that a still was operating
somewhere in the area, none of the officers possessed a war-
rant to search or arrest. Coming to the house that they deter-
mined was the source of the odor, the officers knocked, were
let in by one of the inhabitants and, shortly thereafter, pro-
ceeded upstairs and arrested the defendant as he tended a
225-gallon still. Following an unsuccessful pretrial motion to
suppress the evidence found at the home, the defendant and
an accomplice were both convicted of operating an illegal
still.

On appeal, the court concluded that the structure
that housed the illegal still in Duffy was indeed a home and,
therefore-for purposes of search and seizure law-subject to
the protections of the Fourth Amendment to the United
States Constitution and Article I, section 9, of the Oregon
Constitution. Consequently, a threshold issue for the court
was whether the arresting officers had "possessed enough
evidence before they entered the house to constitute justifi-
cation for their act." Duffy, 135 Or at 301. In concluding that
the odor from the still had, for constitutional purposes, pro-
vided the required foundation for the arrests that followed,
the court again relied on the belief component articulated in
Lee. At the same time, however, it also recognized that some
objective foundation was required to support that belief:

"To justify an officer in making an arrest without a war-
rant, mere suspicion is insufficient; likewise a belief unsup-
ported by facts or circumstances will not justify his action.
In State v. Lee, supra, this court said:

" 'It is not essential in making an arrest without a
warrant that the officer must absolutely know that an
offense is being committed. He must believe it is being
committed and must so believe upon the evidence of his
own senses.'

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"The officer must have probable cause to believe in the
guilt of the suspected party, and 'probable cause' has been
defined as the existence of such circumstances which would
lead a reasonably prudent man to believe in the guilt of the
accused party."

Id.

Lee and Duffy demonstrate that this court wrestled
with the concept of probable cause under the Oregon Consti-
tution more than 50 years before deciding Owens. That fact,
by itself, is unremarkable. However, those cases also demon-
strate that, long before Owens, the court defined the mechan-
ics of probable cause using the same components that Owens
would set out again some 50 years later; i.e., a subjective com-
ponent coupled with an objective basis for concluding that
there was probable cause to arrest. Consequently, although
Owens did not expressly draw on Lee and Duffy in its discus-
sion of probable cause, those prior decisions nevertheless
make it difficult to view Owens-as the state would have us
do now-as having announced a new paradigm for probable
cause analysis. As we explain below, the court's use of the
term "subjective belief" in Owens was not intended to estab-
lish a new, more rigorous probable cause standard for war-
rantless arrests but, instead, was intended to confirm that an
officer's subjective state of mind remains an important part
of the Oregon constitutional analysis.6

That said, we nevertheless agree with the state that
defendant has no right to suppression of the evidence against
him. In State v. Pollock, 337 Or 618, 622-23, 102 P3d 684
(2004), this court summarized the particulars of probable
cause to arrest with respect to both its statutory components
and the constitutional components set out in Owens:

"A warrantless arrest is appropriate if a police officer has
probable cause to believe that a person has committed a fel-
ony. ORS 133.310(1)(a). Probable cause to arrest must be
based on 'a substantial objective basis for believing that

6 Probable cause and subjective belief of wrongdoing have also long been linked
in other contexts. See, e.g., Rose v. Whitlock, 277 Or 791, 799, 562 P2d 188 (1977)
("[F]or one to have probable cause to initiate a criminal prosecution he must have
both a reasonable belief and a subjective belief in the guilt of the accused[.]");
Gustafson v. Payless Stores Northwest, Inc., 269 Or 354, 357, 525 P2d 118 (1974)
(same).

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more likely than not an offense has been committed and a
person to be arrested has committed it.' ORS 131.005(11).
From a constitutional perspective, two components com-
prise probable cause: '[a]n officer must subjectively believe
that a crime has been committed and thus that a person or
thing is subject to seizure, and this belief must be objec-
tively reasonable in the circumstances.' State v. Owens, 302
Or 196, 204, 729 P2d 524 (1986)."

As Pollock's quotation from Owens makes clear, the subjec-
tive component of the probable cause inquiry is satisfied if
the officer believes that he or she has lawful authority to
restrain the individual's liberty. The fact that the officer may
be mistaken about the basis or the extent of the restraint is
not fatal for the purposes of the subjective component, as long
as objectively there is a constitutionally sufficient basis for
the officer's actions.

Over the years, the court has analyzed different
arrest scenarios to determine whether the requisite subjec-
tive belief was present for probable cause purposes. In the
course of doing so, however, the court has never articulated
any principle-constitutional or otherwise-requiring that
the state establish the arresting officers' subjective belief in
court through express declarations from such officers that
they possessed probable cause to arrest at the time that they
acted. Indeed, to do so would contravene decisions from this
court that have minimized the utility of such testimony in
determining the legality of a warrantless arrest.

For example, in State v. Cloman, 254 Or 1, 456 P2d
67 (1969), two police officers on patrol received a radio dis-
patch alerting them to the fact that three men in a Cadillac
had recently been observed leaving a location where a large
cache of stolen copper wire had just been discovered by other
officers. The two officers later stopped the Cadillac and rec-
ognized the defendant-driver as having "a reputation as a
copper wire thief." After arresting defendant on charges of
violating an "after-hours" city ordinance, the officers
searched the trunk of the Cadillac and discovered a quantity
of stolen copper wire. At trial, the trial court concluded that
the rationale given for the arrest was not enough to justify
the seizure and search of the defendant and his vehicle.

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Although this court agreed with that proposition, it neverthe-
less concluded that the officers' actions were legally justified
because those actions had been supported by probable cause
to arrest for a different crime:

"The question arises whether it is material that the offi-
cers had probable cause to arrest defendant for the commis-
sion of a crime in connection with the stolen copper wire.
The officers' expressed cause for arresting the defendant
was a violation of an 'after hours' city ordinance. We believe
it reasonable to conclude that the officers gave this cause
for arrest because of their uncertainty of the law of probable
cause for arrest. We also believe it reasonable to conclude
that the actual cause for which the officers arrested [the
defendant] was some charge concerning the stolen wire.
Under these circumstances, we find nothing to be served by
holding the arrest invalid because the officers were uncer-
tain about a problem which puzzles the courts. We hold that
if the officers had probable cause to arrest, the arrest made is
not rendered illegal because the officers expressed another
and improper cause for arrest."

Id. at 12 (emphasis added).

Cloman established that an officer's expressed rea-
son for making an arrest does not control a court's determi-
nation of that arrest's legality-so long as the officer acted on
the belief that there was a legal justification for that action
(the subjective component) and the officer's belief was objec-
tively reasonable (the objective component). For the purposes
of the subjective component of the probable cause inquiry, it
is sufficient if the trial court finds (and there is evidence to
support its findings) that the officer reasonably believed that
he had lawful authority to act, even if the officer's subjective
basis for acting turns out to be incorrect. Of course, in order to
prove a valid arrest, the state also must establish, in addition
to the officer's subjective belief that he or she had lawful
authority to act, that the facts objectively are sufficient to
establish probable cause.

In this case, we assume that the deputy placed defen-
dant under arrest before transporting him to the crash site.7

7 As we have already noted, the Court of Appeals concluded that, on appeal, the
state had conceded defendant's arrest in the scenario noted above. Whether a
police officer has made an arrest as opposed to a limited duration stop, however, is

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We also conclude that, objectively, the deputy had probable
cause to arrest defendant for failing to perform the duties of a
driver. The only question then is whether the trial court
erred in implicitly finding that the deputy believed he had
lawful authority to restrain defendant to the extent he did.
As noted, the Court of Appeals held that, given the deputy's
statement that he lacked probable cause, the trial court could
not have found that the deputy possessed the requisite sub-
jective belief. We disagree with the Court of Appeals' analysis
for two reasons.

First, under Oregon law, the purpose of presenting
evidence at a trial or in a pretrial hearing-evidence such as
the deputy's testimony in this case-is to adduce the truth
concerning questions of fact. ORS 41.010 provides:

"Judicial evidence is the means, sanctioned by law, of
ascertaining in a judicial proceeding the truth respecting a
question of fact. Proof is the effect of evidence, the establish-
ment of the fact by evidence."

Whether probable cause has properly preceded an arrest,
however, is not a question of fact; it is a question of law. See
State v. Snow, 337 Or 219, 223 n 2, 94 P3d 872 (2004) (stating
that whether facts establish probable cause is a question of
law). Deciding questions of law is the province of the court,
not the witnesses who come before it:

"All questions of law, including the admissibility of tes-
timony, the facts preliminary to such admission and the
construction of statutes and other writings and other rules
of evidence shall be decided by the court."

ORS 136.310. Because the presence or absence of probable
cause is a question of law, the deputy's testimony at trial-"I
had reasonable suspicion, but I had not yet reached suffi-
ciently [sic] to call it probable cause"-reflects, at best, the
deputy's opinion on a complex legal issue, not a statement of

a question of law, and a "concession" to such a question means only that the party
agrees with (and chooses not to contest) a particular legal conclusion. Conse-
quently, this court is not obliged to accept such concessions at face value. See State
v. Bea, 318 Or 220, 224, 864 P2d 854 (1993) (holding that court need not accept
state's concession concerning legal conclusion that stop had been unlawful). In any
event, resolution of that question has no impact on the proper disposition of this
case.

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fact. It did not require the trial court to conclude that the dep-
uty subjectively believed that he lacked legal authority to
restrain defendant's liberty to the extent that he did.

Second, to the extent that the Court of Appeals
understood Owens to require a conclusion that the deputy's
arrest of defendant was unlawful because the deputy had tes-
tified that he possessed reasonable suspicion, but not proba-
ble cause, the Court of Appeals erred. With regard to war-
rantless arrests, our case law has consistently demonstrated
that the probable cause formulation in Owens was not
intended to make an officer's in-court assessment of his or
her degree of suspicion dispositive of the broader question,
viz., was the arrest justified by probable cause? A court must
make that objective determination after considering all the
circumstances relevant to the arrest. The subjective belief
component of Owens's probable cause calculus was intended
only to restate principles regarding warrantless arrests that
have deep roots in the Oregon cases: law enforcement officers
must reasonably believe that their conduct is legally justi-
fied, and they must have acted on that belief in restraining a
defendant's liberty.

In this case, the deputy who initially stopped defen-
dant knew that: (1) a serious single vehicle accident recently
had occurred on a public highway; (2) the suspect-whom he
had stopped on foot-not only matched the description of the
vehicle's driver, but also bore physical indicators of having
been in an accident; and (3) the suspect independently knew
what kind of vehicle had been involved in the accident, but
disavowed any connection with the crashed vehicle or the
accident in which it been involved. Given those facts, (1) the
trial court could find the deputy was aware of facts that were
sufficient to establish probable cause to believe that defen-
dant had committed the misdemeanor of failing to perform
the duties of a driver, ORS 811.700, and (2) the deputy's con-
duct permitted the trial court to infer that the deputy had
acted in response to those facts. See ORS 133.310(1) (when
probable cause to do so exists, peace officers may arrest a per-
son for committing a misdemeanor). Even if the deputy
believed that, legally, those facts only created a reasonable
suspicion sufficient to stop defendant and that he was doing
nothing more than that, the deputy reasonably believed that

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he had the lawful authority to do so. That is enough to estab-
lish the subjective component of the inquiry. Because the
facts also were sufficient objectively to establish probable
cause, the deputy's actions did not violate defendant's statu-
tory or constitutional rights.

As already noted, because the Court of Appeals
reversed defendant's convictions, it did not address his other
assignment of error regarding the imposition of consecutive
sentences in his case. The Court of Appeals must now take up
that issue on remand.

The decision of the Court of Appeals is reversed and
the case is remanded to that court for further proceedings.