State v. Wetzell

*124EDMONDS, J.

Defendant appeals his conviction for driving under the influence of intoxicants (DUII). ORS 813.010. He assigns error to the trial court’s denial of his motion to suppress evidence. We affirm.

On September 16,1994, Oregon State Police Officer Decker was patrolling on Highway 20 near the Santiam Pass. At approximately 9:25 p.m., he saw defendant driving his pickup truck around a curve 10 to 20 miles faster than most drivers were taking the curve. He decided to follow defendant. Within a mile, he saw defendant cross the yellow dividing line, cross the fog line twice, pass a recreational vehicle without signaling, leave his high beam lights on while approaching oncoming traffic, and drive outside his lane of traffic “deep into the yellow solid line.” Decker turned on his emergency lights to stop defendant. When defendant pulled over to the shoulder of the highway, he skidded to a stop, braking abruptly. Decker testified that in his experience very few people “skid” to a stop in that manner.

Decker got out of his car and approached defendant’s vehicle. Defendant rolled his pickup window approximately halfway down. Decker observed that defendant was the only person in the pickup and that there was a “strong” odor of alcohol emanating from the vehicle. Although the temperature was not warm, defendant had a “very flushed, clammy or sweaty face.” His movements were slow and deliberate, his eyes were “very bloodshot,” and he had a “glazed, drawn look about him.” When Decker engaged defendant in conversation, defendant was uncooperative. His voice was tentative and possibly slurred. Throughout the exchange, defendant was “smiling to himself, as if he were telling himself a secret joke.” Defendant refused to roll the window down all the way or, when requested, to get out of the vehicle.

Based on the odor of alcohol and defendant’s actions, Decker believed that there was “a good chance that [defendant] was DUII.” To prevent defendant from driving away, Decker asked him to open his pickup door. When defendant refused, Decker opened the door himself. Decker asked defendant to perform some field sobriety tests in the vehicle *125and warned him that a refusal could be used against him in court. Defendant refused. Decker then asked defendant to perform field sobriety tests outside the vehicle and defendant again refused to perform. Decker testified that, at this point, he was “certain that defendant was under the influence and arrested him.” After resisting arrest, defendant was taken into custody and charged with DUII. This appeal arises from his subsequent conviction.

Defendant argues that Decker conducted a warrant-less search prohibited by Article I, section 9, of the Oregon Constitution, by opening the pickup door without subjective probable cause. In State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986), the court said:

“Probable cause under the Oregon Constitution has both a subjective and an objective component. An officer must subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure, and this belief must be objectively reasonable in the circumstances. The test is not simply what a reasonable officer could have believed when he conducted a warrantless search or seizure, but it is what [the] officer actually believed, based upon the underlying facts of which he was cognizant, together with his own training and experience. Neither is the test whether the officer articulates to the suspect the basis for a second ground for arrest. What is required is that the officer formulates such a basis to himself at the time he acts.” (Emphasis in original.)

Defendant argues that although Decker may have had sufficient “reasonable suspicion” to initiate a stop under ORS 131.615 and ORS 810.410, he lacked the required subjective belief to permit him to open the car door. The state agrees that the opening of the door of the pickup constituted a search but argues that the search was proper because it was conducted with objective and subjective probable cause under exigent circumstances.

“Probable cause” means that it is more likely than not that seizable things will be found in the person or location to be searched. State v. Anspach, 298 Or 375, 380, 692 P2d 602 (1984). Probable cause does not require certainty or proof beyond a reasonable doubt, which is necessary to convict an individual of a crime. State v. Spicer, 254 Or 68, 70, 456 P2d *126965 (1969). In this case, it is clear that defendant’s driving and the odor of alcohol that emanated from his vehicle when the officer first approached constituted objective probable cause. Nonetheless, defendant and the dissent maintain that Decker lacked the subjective belief that it was more likely than not that defendant was under the influence before Decker opened the vehicle door.

In context, the most probative evidence on Decker’s state of mind before he opened the pickup door is his testimony that he had concluded that there was “a good chance that defendant was DUII” and that he opened the door in order to prevent defendant from driving away. There is evidence that Decker suspected that defendant was driving under the influence because of defendant’s driving before he stopped defendant. The odor of alcohol and defendant’s other actions after Decker approached defendant’s vehicle added to Decker’s suspicion. The dissent’s approach would require an officer to articulate magic words that express the requisite legal standard. However, in some cases the officer’s belief that a crime has been committed by the defendant is evident from the circumstances, and there is more than one way to express that it is more likely than not that a crime has been committed. In the context of these facts, the officer’s testimony that there was “a good chance that defendant was DUII” supports the trial court’s finding1 that Decker possessed the requisite belief. We agree with the trial court that *127Decker’s belief was more than a mere suspicion or possibility before he opened the door of defendant’s vehicle. Accordingly, the trial court did not err in denying defendant’s motion.

Affirmed.

The dissent makes much of the fact that the trial court did not explicitly find that Decker had subjective probable cause before he opened the car door. However, the trial court made a number of express findings about Decker’s state of mind and the circumstances. At the time of the stop but before Decker approached defendant’s vehicle, the court found:

“Trooper Decker had probable cause to believe several traffic infractions had occurred and a reasonable suspicion that defendant was under the influence of alcohol.”

The trial court also found that when Decker approached the vehicle, he noticed

“an odor of intoxication emanating from the vehicle and other signs of intoxication. * * * To prevent defendant from driving off, Trooper Decker opened the door of defendant’s vehicle. * * * Once the trooper opened the door of defendant’s vehicle, he became sure defendant was under the influence of intoxicating liquor.”

There is evidence to support all of those findings. Based on them, the trial court concluded that Decker’s subsequent actions were lawful. It is apparent from the court’s findings about the progression of Decker’s beliefs that the officer’s reasonable suspicion that defendant was operating his vehicle under the influence of intoxicants escalated into the state of mind that defendant had to be stopped from driving further for the protection of everyone on the road. A finding about that *127kind of state of mind is, at a minimum, tantamount to the belief that, more likely than not, defendant had committed a crime.