State v. Love-Faust ( 2021 )

756
On appellant’s petition for reconsideration filed April 5, reconsideration allowed,
former opinion (309 Or App 734, 483 P3d 45) modified and adhered to as
modified May 26, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL LOVE-FAUST,
aka Michael Love Faust,
aka Michael Faust-Love,
aka Faust Michael Love,
Defendant-Appellant.
Douglas County Circuit Court
19CR19907, 18CR59898;
A171278 (Control), A171279
489 P3d 149
Ann Marie Simmons, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna Belais, Deputy Public Defender, Office of
Public Defense Services, for petition.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Reconsideration allowed; former opinion modified and
adhered to as modified.
Cite as 311 Or App 756 (2021) 757
PER CURIAM
Defendant has petitioned for reconsideration of our
decision in State v. Love-Faust, 309 Or App 734, 483 P3d 45
(2021). In that decision, we concluded that, under the total-
ity of the circumstances, “defendant was not in compelling
circumstances when [probation officer] Woods approached
defendant on the street and asked him about suspected
probation violations.” Id. at 741. Defendant asserts that we
committed a legal error in determining “whether defendant
could terminate the encounter” because the following para-
graph “erroneously framed the issue and analysis as a sub-
jective question”:
“Similarly, we reject defendant’s contention that he was
in compelling circumstances because he could not termi-
nate the encounter. As an initial matter, it is not clear from
the record that defendant subjectively believed that he
could not terminate the encounter. The trial court did not
make an explicit finding on that issue and this is not a situ-
ation in which we would assume that the trial court implic-
itly made such a finding. See Pereida-Alba v. Coursey, 356
Or 654, 671, 342 P3d 70 (2015) (explaining that, although
a reviewing court will presume a trial court resolved a fac-
tual dispute consistently with its ultimate conclusion, the
presumption has its limits; that is, ‘[i]f an implicit factual
finding is not necessary to the trial court’s ultimate conclu-
sion or is not supported by the record, then the presump-
tion does not apply’). In any event, even if defendant subjec-
tively believed that he could not terminate the encounter,
consistent with the reasons described above with respect to
the probation-related questions leading up to the request
for consent, we reject the argument that defendant’s inabil-
ity to terminate the encounter created compelling circum-
stances under the totality of the circumstances presented
by this case.”
Id. at 743.
We grant reconsideration and modify our opinion by
adding the following footnote to the end of the quoted para-
graph above:
“In rejecting defendant’s argument that he was not free
to terminate the encounter, we do not mean to suggest that
the test is a subjective one. As stated above, the test for
758 State v. Love-Faust
evaluating whether the circumstances were compelling
is an objective test. Shaff, 343 Or at 645 (‘The question
[of] whether the circumstances were compelling does not
turn on either the officer’s or the suspect’s subjective belief
or intent; rather, it turns on how a reasonable person in
the suspect’s position would have understood his or her
situation.’).”
Reconsideration allowed; former opinion modified
and adhered to as modified.