concluding that an officer conducted a “search” under Article I, section 9, when he conducted a field sobriety test because, in doing so, “[t]he officer created a situation that exposed information about defendant that was otherwise not observable by either the officer or by members of the general public”
How later courts described this case
- concluding that an officer conducted a “search” under Article I, section 9, when he conducted a field sobriety test because, in doing so, “[t]he officer created a situation that exposed information about defendant that was otherwise not observable by either the officer or by members of the general public”
- explaining that FSTs involve “a series of specialized and unusual acts designed to elicit information that [the] defendant would not have exposed to the public without the officer’s direction” and concluding that the administration of FSTs “constitutes a search within the meaning of Article I, section 9”
- holding that field sobriety tests constitute a search under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, and that the search is reasonable when it is based on probable cause and under exigent circumstances
- stating that “[b]lood-alcohol content is a transitory condition, the evidence of which will dissipate in a relatively short time”
Written by the judges who cited it.
The opinion
GILLETTE, J.,
concurring in part and specially concurring in part.
I join in the lead opinion’s conclusion as to the appropriate outcome of this case, but subject to the various qualifications that I shall discuss below. As will become clear from my explanations, it is not possible for me to join in much of the analysis by which the lead opinion reaches that outcome.
In spite of the fact that this opinion takes us some distance down a new road — a fitting metaphor, I think — the opinion may well be defensible, in the abstract, in the way that it applies, to the narrow range of facts that it chooses to discuss, this court’s previous jurisprudence with respect to what constitutes a “search” under Article I, section 9, of the Oregon Constitution. What I find to be most striking about the lead opinion, however, is the range of issues that the lead opinion does not discuss and, therefore, cannot later fairly be argued as having decided.
*40 I understand the lead opinion to hold that the administration of “field sobriety tests” to a driver whom a police officer reasonably suspects has been driving a motor vehicle while under the influence of intoxicants is a “search” under Article I, section 9, of the Oregon Constitution. As an application of settled principles, the foregoing proposition — while new — does no violence in the abstract to constitutional precepts. That is, the conclusion reached by the lead opinion appears to follow reasonably from such well-settled propositions as (1) a search is “an intrusion by a governmental officer, agent, or employee into the protected privacy interest of an individual,” 1 which intrusion (2) would “significantly impair an individual’s interest in freedom from scrutiny, i.e., [the individual’s] privacy,” 2 and (3) the privacy interest involved is one “to which [a person] has a right.” 3 320 Or at 29. (That last proposition is not exactly self-explanatory, but the point is clear enough.)
To apply the foregoing concepts concretely: A person may wish to conceal, i.e., to maintain as private, the person’s particular state of inebriation. Some indications of that state can be gained by anyone standing in close proximity to the person. No one in this case denies that the arresting officer is entitled to perceive and use observations of that kind. But a constitutionally different situation is presented when the person is somehow required by the officer to take actions that are likely further to disclose the person’s state of inebriation. 4
As I say, the foregoing proposition can be defended abstractly, so long as other arguments and considerations are excluded from the analysis. The lead opinion excludes many *41 such arguments and considerations by not acknowledging or discussing them. Thus insulated from the full range of pertinent questions, the answer given by the lead opinion stands up.
Whether it will stand up when the rest of the pertinent arguments and considerations at last receive appropriate attention in a future case remains a far more difficult question, but I am content to await that case. I note only a few of the more obvious issues that remain open:
1. What Was the Nature of the Decision by Defendant to Take the Test?
Beginning at the beginning, it is important to note the operative verbs by which the majority characterizes the process through which defendant was induced to take the four field sobriety tests that were involved in this case. The officer, the majority says, “directed,” “directed [again],” “instructed,” and “required” defendant to take the tests. 320 Or at 30. But those tests were not conducted at the point of a gun. The only force that was used by the officer to induce defendant to take the tests was that provided by the law itself.
ORS 813.135 provides:
“Any person who operates a vehicle upon premises open to the public or the highways of the state shall be deemed to have given consent to submit to field sobriety tests upon the request of a police officer for the purpose of determining if the person is under the influence of intoxicants if the police officer reasonably suspects that the person has committed the offense of driving while under the influence of intoxicants in violation of ORS 813.010 or a municipal ordinance. Before the tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136[, which provides for the use of such refusal as evidence in any criminal or civil action or proceeding arising out of allegations that the person was driving while under the influence of intoxicants].”
Given the authority granted to the officer by the foregoing statute, why is the majority entitled to use the verbs that it uses in beginning its “search” analysis? Those verbs import into the discussion a suggestion that defendant was denied some choice by the officer, but that is not the case. Defendant *42 agreed to take the tests, coerced to do so by the statute itself. How has the officer “intruded,” as the constitutional test requires that he do if he is searching, when all that the officer observes and records is the result of an informed choice made by defendant? This argument is not considered or addressed by the lead opinion, and so remains open for exploration in a future case.
2. What Precisely is the Act that Constitutes a Search ?
The concluding sentence in the lead opinion’s analysis under Article I, section 9, states: “We conclude that the administration of such tests here constitutes a search * * See 320 Or at 31 (emphasis added). By “such tests,” I presume that the majority is referring to the field sobriety tests described in such painstaking detail earlier. See 320 Or at 30 (describing tests taken by defendant). But — all of them? Collectively? Individually? Some, but not all? Specifically, would it have been a search if the officer had been content to ask only that defendant recite the alphabet backwards, and had noted the response? Had asked only that defendant count backwards? Had asked only that defendant stand on one leg? Walk a straight line, heel to toe? It would have been better if the lead opinion had been more explicit as to this point but, as already noted, the opinion is quite abstract.
The questions that I pose are not asked idly. We are tinkering with more than just a single stop of a single driver by a single officer. The field sobriety tests used in this case are derived from an administrative rule, OAR 257-25-020. That administrative rule is in turn derived from the specific authority granted by statute to police officers to request that certain persons take field sobriety tests. See ORS 813.135, supra (authorizing administration of field sobriety tests). That statute is an adjunct to Oregon’s “Implied Consent Law,” see, generally, ORS 813.100 et seq. To the extent that the administrative rule authorizes the officer to make the request and to administer the tests on the basis of reasonable suspicion, the constitutionality of the rule is placed in considerable doubt (as well as are the things that officers may do pursuant to it).
I assume that the lead opinion’s failure to address the constitutionality of the administrative rule is a reflection *43 of the fact that the majority’s only purpose is to place on the table the reasoning that, at least in the abstract, the idea that a field sobriety test could be a search may be well founded and should be taken seriously.
3. What is the Pertinence of the Fact that Driving a Motor Vehicle is an Intensively Regulated Activity ?
The majority has not considered, and does not today decide, whether, inter alia, (1) searches of the kind involved here may be carried out with less than probable cause, because of the minimal privacy interest involved or the limited nature of the intrusion; 5 or (2) the pervasive nature of the state’s regulation of the activity of driving has so reduced a person’s privacy with respect to that activity that there is, in fact, no search at all under the present circumstances. 6 Much remains to be said about those issues.
One final thing needs to be said about the methodology employed by the court in this case. There is nothing compelling about the majority’s justification for its expedition into the issue of what is a “search.” As recently as two years ago, this court assumed the existence of a search — a somewhat difficult issue under the facts of that case — because, even assuming a search, the acts by a police officer that constituted the search were based on probable cause and exigent circumstances. See State v. Anfield, 313 Or 554, 561 , 836 P2d 1337 (1992) (so holding). There also is perfectly respectable (and only slightly older) precedent to the contrary. See State v. Ainsworth, 310 Or 613, 616-19 , 801 P2d 749 (1990) (focusing on whether a “search” occurred). In other words: This court had a choice of methodologies. It should have taken the Anfield approach, because the answer to the case on probable cause grounds alone was dispositive.
This case could have been disposed of quickly. The officer’s actions that are under scrutiny in this case occurred after the officer acquired probable cause to arrest defendant. Therefore, any “search,” as that concept is embodied in *44 Article I, section 9, of the Oregon Constitution, that may have occurred here was justified by probable cause and exigent circumstances. That is the beginning and the end of the analysis that is necessary to resolve this case. The lead opinion ultimately recognizes the validity of that analysis in reaching its disposition in this case, and I join in that disposition and its rationale.
Graber, J., joins in this concurring in part and specially concurring in part opinion.
VAN HOOMISSEN, J., concurring in part, specially concurring in part.
I agree with the analysis and holding announced by the majority.
I write separately to express my view that the “subjective” component of probable cause recognized (without citation of any authority) in State v. Owens, 302 Or 196, 204 , 729 P2d 524 (1986), is not properly a requirement of probable cause under Article I, section 9, of the Oregon Constitution. 1 In my view, Article I, section 9, is satisfied when it is objectively reasonable under the circumstances for an officer to believe that a crime has been committed and, thus, that a person or thing is subject to seizure. See State v. Cloman, 254 Or 1, 12 , 456 P2d 67 (1969) (“if the officers had probable cause to arrest, the arrest made is not rendered illegal because the officers expressed another and improper cause for arrest”); see also LaFave, 1 Search and Seizure § 3.2(b) at 566-68, Supp at 113 (1987 & Supp 1994) (indicating that the test should be objective, and that the cases holding that there are both objective and subjective components of probable cause, including State v. Owens, supra, are “not the correct view”).
State v. Rhodes, 315 Or 191, 196 , 843 P2d 927 (1992).
State v. Dixson/Digby, 307 Or 195, 211 , 766 P2d 1015 (1988); accord State v. Wacker, 317 Or 419, 426, 856 P2d 1029 (1993).
State v. Campbell, 306 Or 157, 164 , 759 P2d 1040 (1988) (emphasis in original).
In this regard, the lead opinion seems to place emphasis on the “unusual” nature of the acts that the person is required to perform — at least, that label is used at three different points in the lead opinion analysis. See 320 Or at 30.1 am unclear as to what significance that label has, because the principled difference between “unusual” acts and “ordinary” acts escapes me if either kind of act is required by the officer and permits the officer to make observations with respect to the person’s condition that the officer otherwise would be entitled to make. As I explain in the text, it may be that the more important inquiry is what justifies the lead opinion’s use of verbs like “require,” in the first instance.
For a similar treatment of “seizures” under Article I, section 9, see State v. Holmes, 311 Or 400 , 813 P2d 28 (1991) (upholding constitutional permissibility of certain limited kinds of stops on less than probable cause).
See State v. Ainsworth, 310 Or 613, 616 , 801 P2d 749 (1990) (aerial surveillance of private property did not invade privacy of occupants of property).
I was not a member of this court when Owens was decided.