432 P.3d 245
Or. Ct. App.2018Background
- Officers Crino and Mendez, on patrol in a restaurant parking lot known for thefts, approached defendant near parked cars after the restaurant had closed and defendant refused to speak.
- Defendant walked toward a secluded patio; officers followed and asked questions; defendant refused to answer and became agitated and showed signs of intoxication.
- Crino observed "pre-fight cues" (clenched fists, bladed stance, shifting weight), called for backup, and warned defendant he would be arrested if he did not provide identification.
- When defendant said "I am not going to be arrested," Crino ordered him to turn and put his hands behind his back for handcuffing; defendant refused, resisted, and a struggle ensued until officers subdued and arrested him.
- Defendant was charged with resisting arrest and interfering with a peace officer; jury acquitted him of resisting arrest but convicted him of interfering for refusing the officer’s order.
- On appeal defendant argued the order was an unlawful seizure under Article I, §9 because there was no reasonable-suspicion basis for the initial stop; he also challenged assessment of $1,800 in court-appointed attorney fees.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Lawfulness of order to turn and put hands behind back (seizure) | Order lawful because justified by officer-safety concerns even if initial encounter was unlawful | Order was an unlawful, warrantless seizure absent reasonable suspicion for the initial stop | Order lawful for purposes of ORS 162.247(1)(b); officer-safety can justify order independent of initial encounter (Wilson controls) |
| Applicability of officer-safety doctrine when initial encounter may be unlawful | Officer-safety exception can validate orders even if initial stop lacked reasonable suspicion | Suppression-line cases (Bates) require officer-safety to arise during a lawful encounter | Court follows Oregon appellate precedent holding lawfulness of an order judged independently of initial encounter; Bates-based suppression rule does not control resisting/interfering analysis |
| Claim that court should not assess fees for charges resulting in acquittal | State: ORS 151.505 and ORS 161.665 authorize such money awards at conclusion of a case | Defendant: Fees for resisting-arrest (acquitted) should not be assessed | Fees upheld: statute authorizes assessment of court-appointed counsel fees at conclusion of case regardless of convictions |
| Whether defendant preserved argument that officers lacked reasonable suspicion of immediate serious threat | State notes defendant didn’t raise it below | Defendant (on appeal) argued lack of reasonable suspicion of threat | Issue not preserved; court declines to consider it |
Key Cases Cited
- State v. Wilson, 283 Or. App. 823 (officer-safety can justify orders even if initial stop may have been unlawful)
- State v. Bates, 304 Or. 519 (officer-safety exception in suppression context requires development of reasonable suspicion during lawful encounter)
- State v. Bistrika, 261 Or. App. 710 (lawfulness of an order based on threatening conduct is judged independently of initial stop)
- State v. Neill, 216 Or. App. 499 (lawfulness of directions to reduce risk of violence judged separately from validity of initial search)
- State v. Lupoli, 348 Or. 346 (standard for reviewing denial of judgment of acquittal)
- State v. Madden, 363 Or. 703 (discussion applying Bates in suppression contexts)