State v. Miller , 120 Or. App. 349 ( 1993 )

852 P.2d 895 (1993) 120 Or. App. 349

STATE of Oregon, Respondent,
v.
Rosella Lee MILLER, Appellant.

T91-2991; CA A75011.

Court of Appeals of Oregon.

Argued and Submitted March 31, 1993. Decided May 19, 1993.

Hari Nam S. Khalsa, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen. and Virginia L. Linder, Sol. Gen.

Before WARREN, P.J., and ROSSMAN and EDMONDS, JJ.

ROSSMAN, Judge.

Defendant appeals her conviction of DUII, ORS 813.010, contending that the trial court erred in denying her motion to suppress. We affirm.

The pertinent facts are that Officer Bowlds saw defendant pull her vehicle over and stop, of her own volition, on the shoulder of a highway at a place that was posted for emergency parking only. He pulled in behind her, activated his flashing yellow lights, and called out to defendant to see if she needed assistance. Defendant, who had gotten out of her car and was walking away from Bowlds to the front of her vehicle, changed direction and walked up to him. Bowlds testified that, as defendant walked toward him,

"she appeared to be unsteady. She was swaying. As she got closer, I could see her face was flushed; and her eyes were droopy; and she was kind of sleepy in appearance."

When he asked her if she was having problems with her vehicle, she replied, slowly, that she had stopped to stretch. Bowlds noticed a strong odor of alcoholic beverage on her breath and advised defendant of her rights. He ultimately arrested her.

Defendant contends that the trial court should have suppressed all evidence of Bowlds' observations of her. She argues that, because Bowlds contacted her in a "community caretaking" capacity, his observations of apparent criminal activity must be suppressed as a product of an unauthorized stop, under the rule she derives from State v. Bridewell, 306 Or. 231, 759 P.2d 1054 (1988).^[1]

Defendant's reliance on Bridewell is misplaced. That case involved an entry onto the defendant's premises. This case does not present us with the same kind and degree of intrusion into a constitutionally protected area. Here, the officer simply came upon a motorist who had stopped her vehicle of her own volition and approached her to ask if she needed assistance. The trial court properly concluded that the contact, up to the time when the officer acquired reason to inquire into defendant's sobriety, had not been converted into a "stop" by the mere fact that the officer activated his flashing yellow lights and called out to defendant as she was walking away from him. See, e.g., State v. Gerrish, 311 Or. 506, 815 P.2d 1244 (1991); State v. Johnson, 93 Or.App. 242, 761 P.2d 1343 (1988), rev. den. 307 Or. 405, 769 P.2d 779 (1980); State v. Dubois, 75 Or.App. 394, 706 P.2d 588, rev. den. 300 Or. 451, 712 P.2d 110 (1985); State v. Tracy, 52 Or.App. 945, 630 P.2d 370, rev. den. 291 Or. 662, 639 P.2d 1280 (1981).

Accordingly, we hold that the officer's observations of defendant were not subject to suppression under the "community caretaking" rationale of State v. Bridewell, supra.^[2]

Affirmed.

NOTES

[1] Defendant also relies on State v. Martin, 100 Or.App. 256, 785 P.2d 801 (1990). After the briefs were filed in this case, the Supreme Court vacated that opinion. 315 Or. 440, 845 P.2d 1294 (1993).

[2] Defendant also cites State v. Johnson, 105 Or. App. 587, 805 P.2d 747 (1991), as authority for the proposition that Bowlds "stopped" her by calling out to her and causing her to walk from the front of her vehicle to the rear. Johnson is readily distinguishable from this case. There, the police were investigating a report of a fight, suspected Johnson of being a participant or a witness, and asked him what he had in his pocket before they directed him to step out from behind a bush and approach them. The circumstances of that contact were more inherently coercive and resulted in more of an interference with Johnson's choice of action than Bowlds' encounter with defendant, which was in the immediate vicinity of the car that she had stopped voluntarily. Johnson is not dispositive.