State v. Kepsel ( 2023 )

752
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted January 26, affirmed May 3, petition for review denied
August 31, 2023 (371 Or 332)
STATE OF OREGON,
Plaintiff-Respondent,
v.
ELI BENSON KEPSEL,
Defendant-Appellant.
Douglas County Circuit Court
20CR21972; A175969
Frances Elaine Burge, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
Nonprecedential Memo Op: 325 Or App 752 (2023) 753
EGAN, J.
Defendant appeals his conviction for driving under
the influence of intoxicants, ORS 813.010 (Count 1) and pos-
session of methadone, ORS 475.824 (Count 3).1 He assigns
error to the trial court’s denial of his motion to suppress
evidence derived from a stop that he asserts was unlawful.
We affirm.
We review a trial court’s denial of a motion to sup-
press for legal error, and we are “bound by the trial court’s
factual findings if there is any constitutionally sufficient evi-
dence in the record to support” those findings. State v. Ehly,
317 Or 66, 75, 854 P2d 421 (1993). In this appeal, defen-
dant argues that a state trooper lacked reasonable suspicion
to stop him on suspicion of driving under the influence of
intoxicants (DUII) based on an informant’s report because
the report was not sufficiently reliable, and the trooper’s
own observations did not support reasonable suspicion.
See State v. Villegas-Varela, 132 Or App 112, 115, 887 P2d
809 (1994) (“When reasonable suspicion is based solely on
a citizen informant’s report, that report must contain some
indicia of reliability.”). According to defendant, the infor-
mant’s report that defendant was “messed up on something”
was not based on the informant’s personal observations
because the informant did not observe defendant drinking
or doing drugs, and he did not observe defendant’s physi-
cal demeanor. See id. (“[W]e identified three factors that are
important in determining the reliability of a citizen infor-
mant’s report. One is whether the informant is exposed to
possible criminal and civil prosecution if the report is false.
* * * The second factor is whether the report is based on the
personal observations of the informant. * * * The final factor
is whether the officer’s own observations corroborated the
informant’s information.”).
Here, the informant’s report was based on his per-
sonal observations of defendant’s driving. The informant
provided his name, date of birth, driver’s license number,
address, and phone number to the police. The informant
reported that he saw defendant drive over the centerline
1
Defendant was also charged with reckless driving, ORS 811.140 (Count 2),
but the trial court dismissed that charge.
754 State v. Kepsel
and fog line more than 10 times, and that he “thought the
driver was probably messed up on something” based on the
way that defendant drove. In addition, the informant fol-
lowed defendant’s car, and once the informant saw the state
trooper, he flashed his lights to indicate the driver. Not only
did the informant report that the driver was “messed up on
something,” the informant also provided details that led to
his conclusion.
That report, combined with the trooper’s observa-
tions that defendant was weaving within his lane and flail-
ing his arms, provided sufficient bases for the trooper to
reasonably suspect defendant committed DUII. See State v.
Perrin, 143 Or App 123, 128, 923 P2d 1249 (1996) (citing
State v. Lichty, 313 Or 579, 585, 835 P2d 904 (1992) (“The
fact that [an informant] reported an ‘intoxicated driver’
rather than describing the details that led him to that opin-
ion does not, in and of itself, negate reasonable suspicion.”));
see also State v. Sulser, 127 Or App 45, 48, 871 P2d 126(1994) (“Indications that a driver is impaired may come in
many ways[.] * * * [W]eaving within a lane and touching or
crossing the center line are examples of erratic driving that
may indicate driver impairment.” (Internal quotation marks
and citations omitted.)).
Affirmed.