The state appeals the trial court’s order suppressing evidence obtained after a police officer stopped defendant and drove him to the scene of a crime. ORS 137.060(l)(c). The trial court concluded that the officer had arrested defendant without probable cause, and rejected the state’s inevitable discovery argument. We affirm.
We take the following facts from the trial court record and the trial court’s findings.
See State v. Ehly,
Officer Barringer heard a report that the suspect was last seen wearing a gray hooded sweatshirt and walking north on Riverside near the Cascade Inn. Four minutes after the 9-1-1 call, at 5:04 a.m., Barringer turned north on Riverside toward the Cascade Inn and saw defendant walking south on Riverside, approximately one-third mile south of the Cascade Inn. Defendant was wearing a gray hooded sweatshirt and was the only person Barringer saw on Riverside. Defendant saw Barringer and continued walking. Barringer turned on his patrol car’s overhead lights and ordered defendant to stop, and defendant complied. Because defendant’s hands were concealed in his pockets, Barringer grew concerned for his safety. Barringer immediately frisked defendant and found no weapons.
*91 Based on his interaction with defendant, Barringer concluded that defendant was intoxicated. Barringer also was suspicious that defendant was responsible for the incident at the Cascade Inn. Accordingly, Barringer placed defendant in the patrol car and drove him to the Cascade Inn. Barringer testified that, if the guest had not identified defendant as the person he had seen, Barringer would have taken defendant to an alcohol treatment facility.
Back at the Cascade Inn, Barringer presented defendant to the guest for identification. The guest first saw defendant in the back of the patrol car and in handcuffs. The guest stated that, because defendant’s build matched the suspect’s build, defendant was the person that the guest saw. Officer Arnold, the officer at the Cascade Inn, arrested defendant based on the guest’s positive identification, read defendant Miranda warnings, and searched defendant’s pockets. Arnold discovered paystubs belonging to different people in defendant’s pockets. Defendant was charged in two indictments. The first indictment, based on the vending machine incident, alleged two counts of criminal mischief in the first degree, ORS 164.365, and two counts of criminal mischief in the second degree, ORS 164.354. Based on the paystubs found in defendant’s pockets, the second indictment alleged burglary in the second degree, ORS 164.215, two counts of identity theft, ORS 165.800, and theft in the third degree, ORS 164.043.
Before trial, defendant moved to suppress evidence of the guest’s identification of him, the paystubs that Arnold had discovered in defendant’s pockets, and all other evidence discovered after Barringer stopped defendant. Defendant argued that the stop evolved into an arrest that was not supported by probable cause when Barringer handcuffed defendant and put him in the patrol car. Defendant relied on both the Oregon and the United States constitutions in his motion to suppress. In addition, defendant argued that, because this was a warrantless search, the state had the burden of proving an exception to the warrant requirement. The state contended that Barringer merely stopped defendant and reasonable suspicion supported the stop or, alternatively, that *92 Barringer had probable cause to arrest defendant. Furthermore, the state asserted that the officers would have inevitably discovered the paystubs in defendant’s pockets during an inventory at the treatment facility. The trial court concluded that defendant was arrested at the time that he was handcuffed and placed in the patrol car, that Barringer did not have probable cause for that arrest, and that the state’s inevitable discovery argument lacked merit. Accordingly, the trial court granted defendant’s motion to suppress. The state appeals, and the parties renew their arguments on appeal.
We first consider whether Barringer arrested defendant before the guest identified him.
1
The parties agree that Barringer at least stopped defendant during the initial encounter on Riverside and that defendant was arrested at the Cascade Inn at the time that Arnold read defendant
Miranda
warnings. The officers’ arrest of defendant was lawful if it was supported by probable cause. If the officers’ arrest was unlawful, evidence that they discovered because of the unlawful arrest is subject to suppression under Article I, section 9, of the Oregon Constitution.
2
State v. Hall,
During a stop, a police officer may make a reasonable inquiry, but “[t]he detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.” ORS 131.615(2). An officer may also “use the degree of force reasonably necessary to make the stop and ensure the
*93
safety of the peace officer, the person stopped or other persons who are present.” ORS 131.615(5). However, the duration of the detention or intensity of the officer’s actions can convert a stop into an arrest under Article I, section 9.
State v. Johnson,
Under the totality of the circumstances here, we conclude that Barringer converted the stop into an arrest when, after frisking defendant and determining that defendant had no weapons, Barringer handcuffed defendant and placed him in the patrol car.
See State v. Morgan,
We next consider whether Barringer had probable cause to arrest defendant. “The determination of probable cause is a legal, not a factual, conclusion. Probable cause does not require certainty.”
State v. Herbert,
The state argues that Barringer had objective probable cause to arrest defendant at their initial encounter on *94 Riverside south of the Cascade Inn based on the following circumstances: (1) defendant’s behavior was “strange and furtive” when Barringer approached him; (2) Barringer encountered defendant one-third of a mile from the Cascade Inn, where Barringer knew a crime had recently been committed; (3) defendant wore a gray hooded sweatshirt just as the suspect reportedly wore; (4) defendant was the only person seen outside; and (5) defendant was intoxicated. Under the totality of the circumstances, we conclude that Barringer did not have objective probable cause to arrest defendant.
The first of the circumstances that the state relies on, defendant’s “strange and furtive behavior,” is irrelevant to our inquiry in this case. Barringer’s testimony that defendant tried to avoid an interaction with Barringer, but stopped when ordered and then refused to answer Barringer’s questions, does not constitute strange or furtive behavior. Defendant had a constitutionally protected right to refuse to answer Barringer’s questions.
See State v. Davis,
We are left with four additional circumstances: defendant wore a gray hooded sweatshirt like the suspect, Barringer found defendant one-third of a mile from the crime scene, defendant was the only person seen in the vicinity, and defendant was intoxicated. None of those circumstances is independently sufficient to establish probable cause. The description of defendant was generic, and defendant’s presence one-third of a mile from the crime scene cannot give rise
*95
to probable cause by itself, even if he was the only person seen within one-third of a mile of the crime scene.
See Gressel,
Taking those circumstances as a whole, we still conclude that the state failed to establish that Barringer had objective probable cause. In
Vasquez-Villagomez,
Here, the description of defendant — a person wearing a gray hooded sweatshirt and viewed from the rear by a person not wearing his glasses — is more generic than the description in
Vasquez-Villagomez,
where the description included the defendants’ race, gender, age, weight, and height. Unlike
Vasquez-Villagomez,
the context of the ongoing investigation does not help the state. Although defendant was one-third of a mile away from the crime scene four minutes after the crime was reported, that proximity is insufficient to establish probable cause.
See Gressel,
Finally, the state argues that, even if defendant was unlawfully seized, the evidence of paystubs discovered in defendant’s pockets should not be suppressed because they would have been inevitably discovered. Generally, evidence that police officers discover as a result of an unlawful seizure must be suppressed under Article I, section 9. An exception is that evidence that law enforcement officers would have inevitably discovered will not be suppressed.
Hall,
To prevail on a theory of inevitable discovery by inventory, the state must prove by a preponderance of the evidence that the inventory would have been conducted according to a properly authorized administrative program so that the inventory involves no exercise of discretion, and that the evidence would have been discovered during the inventory.
See State v. Herrin,
In sum, we conclude that the trial court did not err in suppressing evidence that police officers discovered after *98 defendant was unlawfully arrested. The officers would not have discovered the evidence but for the unlawful arrest of defendant and the state failed to prove that the evidence would have been inevitably discovered.
Affirmed.
Notes
Defendant argues that we should not consider the state’s assignment of error because defendant raised arguments under both the federal and state constitutions to the trial court and the state did not argue, in its opening brief, that the trial court erred under the federal constitution. The state argues that, because the federal standard is less stringent,
see State v. Anfield,
Article I, section 9, of the Oregon Constitution provides, in part:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.”
Specifically, Barringer testified about the inventory procedure:
“Once at detox you bring him back — you bring him inside the facility. You put him up — you have him stand in front of the desk, take off his handcuffs, you have him sit in the chair that’s next to it.
“At that point, he’s emptying out his pockets into the basket. He’s taking off his shoes, watches, necklaces, rings, anything of value he might have on him. At that point he puts it all in the basket.”