State v. Durkin , 329 Or. App. 542 ( 2023 )

542 December 13, 2023 No. 657
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL WILLIAM DURKIN,
Defendant-Appellant.
Lane County Circuit Court
20CR57799; A177188
Stephen W. Morgan, Judge.
Argued and submitted June 5, 2023.
Bruce A. Myers, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Peenesh Shah, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Reversed and remanded.
Nonprecedential Memo Op: 329 Or App 542 (2023) 543
PAGÁN, J.
In this criminal appeal, defendant seeks reversal of
his judgment of conviction for driving under the influence of
intoxicants (DUII) in violation of ORS 813.010. Defendant
contends that the trial court erred when it denied his motion
to suppress evidence. Specifically, defendant argues that he
was unlawfully stopped when Officer Card followed him in
a marked patrol car, parked facing the front of defendant’s
vehicle approximately one car-length away, and said “hello”
when defendant tried to walk away. We agree that defen-
dant was unlawfully stopped and that the trial court erred
in denying defendant’s motion. Accordingly, we reverse and
remand.
We begin our analysis by noting that Card’s greeting
alone did not constitute a seizure. See State v. Backstrand,
354 Or 392, 400, 313 P3d 1084 (2013) (“ ‘[L]aw enforcement
officers remain free to approach persons on the street or in
public places, seek their cooperation or assistance, request or
impart information, or question them without being called
upon to articulate a certain level of suspicion in justification
if a particular encounter proves fruitful.’ ” (Quoting State v.
Holmes, 311 Or 400, 410, 813 P2d 28 (1991).)). However, what
elevated this encounter to a stop was not Card’s greeting,
but her accompanying conduct. Specifically, Card followed
defendant’s car at a close distance and when he parked,
Card pulled up approximately a car-length away and parked
facing the front of defendant’s vehicle. Card then pursued
defendant on foot after he walked away. Even though Card
did not significantly restrict defendant’s movement, she still
placed defendant in a conundrum—she restricted his abil-
ity to drive away and, by greeting him, communicated her
intent for him to stop walking away. A reasonable person,
under the totality of circumstances, would not believe that
they were free to end the encounter. See Backstrand, 354
Or at 401 (A seizure occurs, when an officer conveys to the
person “either by word, action, or both, that the person is not
free to terminate the encounter or otherwise go about his or
her ordinary affairs.”).
In the alternative, the state argues that even if
Card stopped defendant, she had reasonable suspicion of
544 State v. Durkin
DUII because she observed defendant leave a bar and make
evasive maneuvers to avoid her while he was driving. We
disagree. The cases relied on by the state are distinguish-
able. State v. Connell, 186 Or App 620, 622-23, 64 P3d 579,
rev den, 335 Or 504 (2003) (distinguishable because the offi-
cer observed the defendant commit multiple traffic infrac-
tions and display behavior that was very suspicious and eva-
sive); State v. Whitman, 144 Or App 385, 387-88, 927 P2d 132(1996) (distinguishable because the defendant was parked
outside a bar at 3:00 a.m. and suspiciously “laid down in
the seat as if to hide” every time a car drove by); State v.
Nelson, 109 Or App 97, 99-100, 817 P2d 1344 (1991), rev den,
312 Or 589 (1992) (distinguishable because officer observed
the defendant leave a bar at 2:00 a.m. and have “difficulty
walking”).
Here, defendant’s evasive conduct was not remark-
able enough to give rise to reasonable suspicion. See State v.
Mock, 310 Or App 454, 467, 485 P3d 295 (2021) (“[A]n indi-
vidual’s choice to take legal measures to avoid police inter-
action is not indicative of any particular criminal activity.”).
Defendant exited a bar in the late afternoon with a “relaxed
gait” and “leisurely demeanor.” He did not have trouble
walking, show signs of impairment, or commit any traffic
infractions. Defendant’s most evasive maneuver involved
him parking his car on the side of the road and putting
it into reverse to avoid Card. However, that legal conduct,
without more, is not remarkable enough to give rise to rea-
sonable suspicion of criminal activity.
Thus, for the above reasons, defendant was unlaw-
fully seized when Card followed defendant in a marked patrol
car, parked facing the front of defendant’s vehicle approxi-
mately one car-length away, and said “hello” to defendant as
he walked away from her. Because the stop occurred before
Card had reasonable suspicion, it was unlawful. State v.
Reyes-Herrera, 369 Or 54, 67-68, 500 P3d 1 (2021). Thus, we
conclude that the trial court erred in denying the motion to
suppress.
Reversed and remanded.