State v. Rhodes , 106 Or. App. 312 ( 1991 )

WARREN, P. J.

The state charged defendant with driving under the influence of intoxicants. ORS 813.010. The trial court granted his motion to suppress all evidence obtained after an officer discovered him slumped over in his vehicle. The state appeals, and we reverse.

At 1:55 a.m. on a Sunday, Officer Hughes noticed a vehicle in a parking spot on the street with its dome light on. It was parked at a slight angle, with the front end closer to the curb. As he got closer, the officer observed that defendant was inside, slumped toward the passenger side, that the engine was running and that the door was ajar three or four inches. Hughes approached the vehicle and saw that defendant was asleep. Hughes testified that he was checking to see what the problem was. He wanted to see if defendant was all right, but he was also suspicious that defendant was intoxicated. As he pulled the door open wider, he smelled alcohol and saw an open beer can on the floorboard next to defendant’s left foot. He removed the can, turned off the engine and removed the keys, because he knew from experience that awakening an intoxicated person might surprise him and he might put the car in gear. Hughes shook defendant awake. Defendant appeared intoxicated and admitted that he had been drinking.

Defendant argued at the suppression hearing that suppression is required under State v. Bridewell, 306 Or 231, 759 P2d 1054 (1988), because the officer was acting in a community caretaking capacity. The trial court found:

“The facts are almost identical to those in State [v]. Martin, 100 Or App 256[, 785 P2d 801 (1990)]. There are some small differences of note. One is that the officer in the instant case did not knock on the window of the vehicle to try to arouse the defendant prior to entry into the interior of the vehicle. Another was the testimony of the officer at the hearing that he was ‘suspicious’ about the slumped-over driver. This is so, in spite of the fact that at a DMV hearing he had testified that his prime motivation was that of seeing whether the defendant was alright [sic]. Preponderance of the evidence indicates that that was the prime motivation of the officer. Given that finding, all evidence must be suppressed.”

The court’s findings are supported by the record.

In State v. Martin, supra, an officer saw the defendant slumped over in his car with the engine running in a parking lot. The officer tapped on the window to see if he was all right. When she did not receive a response, she opened the door to awaken him and discovered that he was intoxicated. The officer found methamphetamine during a search incident to the arrest. We held:

“Where, as here, the officer’s sole aim is to render emergency assistance, ‘incriminating evidence arising from the intrusion by law enforcement officers must be suppressed.’ ” 100 Or App at 257, quoting State v. Bridewell, supra, 306 Or at 240.

The trial court found that Hughes’ prime motivation was to render assistance. It did not find, however, that that was his sole motive. On the contrary, it also found that he was “suspicious” about defendant. Martin does not require suppression if Hughes was lawfully performing a criminal law enforcement function. See State v. Bridewell, supra, 306 Or at 239.

Hughes had a reasonable suspicion sufficient to permit him to stop defendant before he opened wider the door of the vehicle. Defendant was asleep in his vehicle on a public road at 1:55 a.m. with the engine running and the door open. Although there could be other explanations for defendant’s behavior, Hughes’ suspicion that he may have been driving while intoxicated was “reasonable under the totality of the circumstances.” ORS 131.605(4); see State v. Guerricagoitia, 89 Or App 163, 747 P2d 386 (1987), rev den 305 Or 331 (1988).

Defendant contends that Hughes’ act of opening wider the already open vehicle door and reaching into the vehicle was an unlawful warrantless search. The Supreme Court has stated:

“* * * Article I, section 9, of the Oregon Constitution, does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present.” State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987).

Hughes testified that it is dangerous to awaken an intoxicated driver without first turning off the engine. Hughes’ minimally intrusive act was a reasonable safety precaution under the circumstances. The trial court erred in granting defendant’s motion to suppress.

Reversed and remanded.