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
GRABER, J.,
specially concurring.
I agree with the majority that the officer had probable cause to arrest defendant for driving under the influence of intoxicants, before asking him to perform field sobriety tests, that the trial court made proper and sufficient findings in that regard, and that there were exigent circumstances *45 when the officer administered the tests. That being so, even assuming that the field sobriety tests were a “search” or a “seizure” within the meaning of the pertinent constitutional provisions, defendant’s arguments fail. I therefore concur in the judgment.
I cannot, however, join the majority’s dictum as to whether the field sobriety tests administered to defendant were a search. The majority’s discussion of that issue is immaterial to the outcome. Because there is probable cause, it matters not whether the field sobriety tests were, or were not, a search within the meaning of Article I,- section 9, and the Fourth Amendment. Stated differently: as to this defendant, there was probable cause, so it is only a theoretical exercise to decide whether field sobriety tests could be administered constitutionally to someone else for whom there is less than probable cause. 1
Before oral argument, this court submitted questions to the parties and asked for written responses. The third question was this:
“If the trial court did conclude that there was probable cause to search or seize defendant before the field sobriety tests were administered, can this court reach the question whether the statutes and rules providing for field sobriety tests violate Article I, section 9, or the Fourth Amendment by allowing a ‘search’ or ‘seizure’ on less than probable cause?” (Citation omitted.)
Both parties answered that question in the negative. Defendant responded simply:
“Assuming, but not conceding, that this court finds (contrary to defendant’s argument) that the trial court properly found that both subjective and objective probable cause existed prior to the administration of the field sobriety tests, this would obviate the need to reach the issue of whether the field sobriety test statutes unconstitutionally allow administration of field sobriety tests on a standard less demanding than probable cause.” (Emphasis in original.)
*46 The state’s answer was longer, but similar. It stated in part:
“Because the trial court correctly concluded that the officer had probable cause before he requested defendant to perform field sobriety tests, the issue posed by the court is not presented in this case. Whichever way this court were to rule on the lawfulness of requiring performance of field sobriety tests on less than probable cause, the outcome of this case would be the same: The Court of Appeals and trial court would be affirmed. Deciding the issue in this case would constitute nothing more than an abstract or advisory opinion. This court has refused to issue such opinions.”
This court is not bound, of course, to accept the parties’ answer to a legal question, even when the parties agree. See State v. Bea, 318 Or 220, 224 , 864 P2d 854 (1993) (appellate court need not accept concession concerning legal conclusion). In this instance, however, the parties are right.
I concur specially.
Gillette, J., joins in this specially concurring opinion.
Because the dictum is announced by five members of the court, I also join the separate opinion of Gillette, J., which casts doubt on the substantive correctness of what the majority states.