State v. Phillips

Protective measures taken by police officers must be proportionate to the perceived threat, reasonable suspicion would develop if a Defendant took some substantial step towards the end alleged.

Defendant appealed a conviction for Driving Under the Influence of Intoxicants (DUII) under ORS 813.01. Defendant assigned error to the trial court’s denial of Defendant’s motion to suppress evidence of his intoxication and, instead, claimed that the police unlawfully seized him. On appeal, Defendant argued that the officer’s suspicion that he had violated ORS 162.247(1)(a) did not offer a “lawful basis for the order to turn around and put his hands behind his back,” thus the evidence obtained should have been suppressed. The State responded by claiming that the seizure was proper under either officer-safety doctrine or reasonable suspicion that Defendant was going to attempt to interfere in the arrest. Protective measures taken by police officers must be proportionate to the perceived threat, reasonable suspicion would develop if a defendant took some substantial step towards the end alleged. The Court found that Defendant never refused an order to stay away from the scene of the arrest. Although Defendant revved the engine of the ATV when he arrived, Defendant did not necessarily indicate aggression. REVERSED and REMANDED.