STATE OF OREGON, Rеspondent, v. VIDYA ANIL PREMSINGH, aka Anil Mark Premsingh, Appellant.
(C9412-37982; CA A93385)
Court of Appeals of Oregon
Argued and submitted January 3, 1997; taken En Banc and resubmitted February 11, reversed and remanded June 24, 1998
962 P.2d 732 | 154 Or. App. 682
ARMSTRONG, J.
De Muniz, J., dissenting.
Defendant appeals his conviction for possession of a controlled substance. He assigns error to the trial court‘s denial of his motion to suppress evidenсe. We reverse.
On November 13, 1994, defendant‘s sister called the police because defendant was scaring her. Portland Police Officers Woodward and Krantz responded to the call. When the officers arrived, defendant‘s sister told them that defendant had purchased drugs that evening and had drug paraphernalia in his room. Defendant‘s mother and sister both told the officers that defendant was “behaving in an abnormal manner, that he was paranoid, agitated, * * * accusatory and nervous.” The officers’ observations of defendant were consistent with his family‘s. The officers believed that defendant was on drugs and that his family members feared for their safety. The officers interviewed defendant inside his house while his sister went outside to smoke a cigarette. Woodward testified that defendant was extremely agitated during the interview and that he kept looking out the window at his sister. Near the end of the interview, defendant asked, “Are we done?” When Woodward said “yes,” defendant charged toward his sister who was still in the front yard. Woodward decided to stop defendant. She testified:
“Well, he was charging towards his sister. And because of his behavior and the concerns that had been expressed about his previous paranoid-type behavior towards his sister and his mother, I was concerned that he was perhaps going to have some physical violence towards his sister at that point, so we placed him into custody at that point.
“Q: And were you going to take him down to [jail], or where were you going to take him?
“A: Well, my initial response was simply to get him under control, and we then decided to take him to detox.”
Based on that decision, the offiсers walked defendant to their patrol car to transport him to the detoxification center. Before putting defendant in the car, Krantz patted him down. When asked about the patdown, Woodward testified:
“It was for officer safety. And any time we, for officer-safety purposes, put somebody in the car, we generally pat [the person] down. Also, given the kind of behavior he had been exhibiting, I considered him a threat to my safety, yes.”
During the patdown, Krantz felt a long object that he believed could be a weapon. On further investigatiоn, he discovered that it was a “metalish-type filter” with what he suspected was cocaine residue in it. The officers took defendant to jail. He was charged with possession of a controlled substance.
Before trial, defendant moved to suppress the evidence discovered as a result of the search. He argued that the officers did not have authority to take him into custody under
On appeal, defendant assigns error to the trial court‘s denial of his motion to suppress. According to the record, the officers took defendant into custody before Krantz patted him down. Krantz performed the patdown because the officers were planning to transport defendant to a detoxification center. Because the patdown was conducted as a result of taking defendant into custody for detoxification, it was permissible only if the officers had lawful custody of defendant. The legality of the patdown depends, therefore, on whether
“Any person who is intoxicated or under the influence of controlled substances in a public place may be taken or sent home or to a treatment facility by the police. However, if the person is incapacitated, the health of the person appears to be in immediate danger, or the police have reasonable cause to believe the person is dangerous to self or to any other person, the person shall be taken by the police to an appropriate treatment facility. A person shall be deemed incapacitated when in the opinion of the police officer or director of the treatment facility the person is unable to make a rational decision as to acceptance of assistance.”
(Emphasis supplied.) Defendant was in his fenced-in yard on a path leading from his house to the sidewalk when Woodward and Krantz took him into custody. The officers believed that defendant was under the influence of a controlled substance and they decided to take him to a detoxification center. The trial court concluded that
On appeal, the state does not dispute that defendant was on private property when the officers took him into custody but argues that that location was still a “public place” as that phrase is used in
Until 1971, public intoxication was a criminal offense. See former
“Any person who enters or is found in a state of intoxication upon any railway engine, railway car, railway train, aircraft, boat, landing wharf or depot of any common carrier, or on any highway or street, or in any public place or building, or any person who creates, while in a state of intoxication, any disturbance of the public in any private business or place, shall be punished upon conviction by a fine of not less than $5$ nor more than $100$, or by imprisonment in the county jail for a period not exceeding 50 days or both.”
(Emphasis supplied.) The statute served two purposes. First, it gave police authority to remove intoxicated people from public places. The mere presence of intoxicated people can be offensive to others. By making it a crime to be intoxicated in a public place, the statute provided the means to remove intoxicated people from places that they and the public otherwise had a right to be. Second, it provided the means to deal with intoxicated people who were in private places but who caused public disturbances. In that light, we conclude that the statute drew a distinction between places that the public could enter at will and those that they could not. The former were public places and the latter were private.
The legislature repealed former
The state argues that defendant was in such a place because he was on the path leading from the sidewalk to his house when the police took him into custody. According to the state, that path is the ordinary means by which the public is authorized to approach the residence to contaсt its occupants, so it is a place that the public is free to enter at will. We disagree. We have held that, unless the occupants of a house “evidence[ ] a desire to exclude casual visitors,” approaching a front door to contact the occupants is not a trespass. State v. Hitesman / Page, 113 Or App 356, 359, 833 P2d 306, rev den 314 Or 574 (1992). The law assumes that people impliedly consent to that conduct, because “social and legal norms of
The state also argues that we should interpret the statute to make a рath leading to a private residence a public place because that interpretation would fulfill the purpose of the statute. It asserts:
“It would make little sense to permit police officers to take an intoxicated and dangerous (or incapacitated) person into protective custody if he is lying on a public sidewalk, but not if he rolls a foot over the property line into his front yard, even though he is lying in the pathway that the general public is free to use to approach his house. Such a persоn—and defendant in this case—poses just as much a risk of harm to others or himself whether he is intoxicated on one side of the imaginary ‘property line’ or the other.”
That argument is not well taken. Regardless of the legislature‘s broad social aim when it enacted
The dissent does not endorse the state‘s argument that defendant was in a public place because he was on the path leading to his house. It argues, instead, that our interpretation of the statute leads to an unreasonable result because, under it, “the police would not be authorized to take for treatment a person passеd out in a drunken stupor in a front yard when the temperature is minus 20 degrees. Nor would the police be able to take for treatment a person having delirium tremens in a night club restricted to members only.” 154 Or App at 695. In order to address those situations, the dissent argues that a public place must be understood to be any place that is either accessible or visible to the public. It concludes, as a result, that defendant was in a public place when he was taken into custody because his front yard is visible to the public. The dissent‘s definition of a public place cannot be sustained in light of the historical context of
Moreover, it is worth noting that, although the dissent is correct that
Neither of those provisions is at issue in this case because the state has not argued that either of them authorized the officers’ actions. Here, while on private property, the
Reversed and remanded.
DE MUNIZ, J., dissenting.
The majority accepts defendant‘s position that the only justification for the patdown here is if defendant was validly in custody for detoxification.1 The majority holds that he was not because, under the majority‘s statutory interpretation, defendant‘s mother‘s front yard is not a “public place” for purposes of
The offiсers were invited onto the mother‘s property by defendant‘s sister, who was frightened by defendant‘s behavior and had called the police.2 When the officers arrived, defendant‘s mother and sister told them that defendant had been acting paranoid and accusatory, was agitated, was following them around and had threatened to kick the bathroom door down when the mother was in the bathroom.
When defendant‘s sister went outside defendant kept pulling the curtains aside to try to see what she was doing and, when the officers told defendant that their conversation was over, he bolted out the front door, charging toward his sister. The officers intervened. When they put their hands on defendant, “he stiffened up,” started to scream, tried to resist putting his hands behind him and resisted being moved to the police car. Officer Woodward testified that the officers “placed [defendant] into custody at that point,” that her “initial response was simply to get [defendant] under control, and we then decided to take him to detox.” The officers then searched defendant.
The majority concludes that the record establishes that “the officers took defendаnt into custody before [the officer] patted him down. [The officer] performed the patdown because the officers were planning to transport defendant to a detoxification center.” 154 Or App at 686. However, the majority‘s reading of the record ignores Woodward‘s testimony that the reason for the search was
“for officer safety. And any time we, for officer-safety purposes, put somebody in the car, we generally pat them down. Also given the kind of behavior [defendant] had been exhibiting, I considered him a threat to my safety, yes.”
An officer may take reasonable steps to protect the officer or others if the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present. State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987). It is the totality of the circumstances at the time that must be evaluated to determine whether the
Here, the officers had been told of defendant‘s past drug behavior and his purchase of crack that night and had observed his erratic conduct. The officers had an objective basis for their belief that defendant was under the influence of intoxiсants. In that intoxicated condition, defendant had acted in a bizarre and aggressive manner. Defendant charged his sister and resisted and screamed when the officers tried to subdue him. Those circumstances viewed as a whole support the trial court‘s finding that the officers had reason to fear for their safety. The search was a reasonable precaution under the circumstances, and I would affirm the trial court on that basis.
However, if the majority is correct that the search is valid only if defendant was legally in custody for detоxification, I do not agree that defendant‘s mother‘s front yard is not a “public place” for purposes of
However, the majority‘s interpretation ignores the legislature‘s specific treatment of “public place” in the 1971 enactments. At the same time that it enacted former
The majority‘s analysis bypasses the framework of PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993), under which the starting place in statutory interpretation is the text in context, giving words of common usage their ordinary meaning. “Public” is commonly understood to mean “accessible or visible to all members of the community” and includes that which is “exposed to general view.” Webster‘s Third New International Dictionary, 1836 (unabridged 1993) (emphasis supplied). Applying the common understanding to “public place” in the text of
The majority‘s limitation of police intervention in situations involving intoxicated persons leads to an unreasonable result. Under the majority‘s interpretation, the police would not be authorized to take for treatment a person passed out in a drunken stupor in a front yard when the temperature is minus 20 degrees. Nor would the police be able to take for treatment a person having delirium tremens in a
Deits, C. J., and Warren and Riggs, JJ., join in this dissent.