No. 570 June 24, 2026 795
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Appellant,
v.
BRYON CODY SUING,
Defendant-Respondent.
Crook County Circuit Court
23CR01929; A184459
Annette C. Hillman, Judge.
Argued submitted April 23, 2026.
Kyleigh Gray, Assistant Attorney General, argued the
cause for appellant. Also on the briefs were Dan Rayfield,
Attorney General, and Benjamin Gutman, Solicitor General.
Peter Klym, Deputy Public Defender, argued the cause
for respondent. Also on the brief was Ernest D. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,
Judge.
AOYAGI, P. J.
Reversed and remanded.
796 State v. Suing
AOYAGI, P. J.
In this prosecution for driving under the influence
of intoxicants (DUII), ORS 813.010, the state appeals a pretrial suppression ruling. The state contends that the trial
court erred in concluding that the arresting officer lacked
probable cause to arrest defendant. We agree and, accordingly, reverse and remand for further proceedings.
On December 31, 2022, a security guard at St.
Charles Hospital called 9-1-1 to report that an impaired
patient had driven away from the hospital, heading north
on Combs Flat Road. Officer McKenna was dispatched.
Unable to locate the vehicle, McKenna called the security
guard, who identified defendant by name and described him
as unsteady on his feet, smelling of alcohol, and “obviously drunk.” She told McKenna that she saw defendant “drive
a white Dodge pickup from the parking lot, after being
advised not to drive by medical professionals.” McKenna
used defendant’s name to get the registration address for a
white Dodge truck, went to that address, and found a white
Dodge truck in the driveway that was emanating heat from
its hood.
McKenna knocked on the door of the residence,
which led to his interacting with defendant. The initial
interaction was on the unlit front porch, where defendant
stood in his underwear, unbothered by the 31-degree temperature. McKenna advised defendant of his Miranda rights
and then questioned him. Defendant confirmed that he had
been at the hospital and said that he had been home for
30 minutes. He denied taking any medication but said he
drank a shot of whiskey upon arriving home. Defendant’s
speech was slow but not particularly slurred. The conversation moved indoors, where the lighting was better, and
McKenna observed that defendant had glassy, slightly bloodshot eyes. He also could smell alcohol on defendant’s breath. In McKenna’s training and experience, a single whiskey
shot would not account for the signs of impairment that he
observed. Defendant declined to perform field sobriety tests (FSTs). Believing he had probable cause, McKenna arrested
defendant for DUII.
Cite as 350 Or App 795 (2026) 797
Before trial, defendant moved to suppress evidence
obtained following his arrest, contending that McKenna
lacked probable cause to arrest him.
Article I, section 9, of the Oregon Constitution
establishes the right of the people to be secure from “unreasonable search, or seizure.” A police officer may arrest a
person without violating that right if the officer has probable cause to believe that the person has committed a crime.
ORS 133.310(1). Probable cause exists if the officer has “a
substantial objective basis for believing that more likely
than not an offense has been committed and a person to be
arrested has committed it.” ORS 131.005(11). Thus, there
is both a subjective and an objective component to probable
cause. “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.” State v. Owens, 302 Or 196, 204, 729 P2d
524 (1986).
Here, the trial court found that McKenna subjectively believed that it was more likely than not that defendant had committed DUII, but it concluded that such belief
was not objectively reasonable, and it therefore ordered
suppression. The court focused particularly on the fact that McKenna did not see defendant driving and that McKenna
did not ask defendant whether he drank any alcohol prior
to the whiskey shot at home. It also noted that the whiskey
shot at home could explain defendant’s bloodshot eyes and
the odor of alcohol that McKenna discerned. In the court’s
view, the hospital security guard’s report was enough to
create reasonable suspicion, but that report combined with
what McKenna personally observed was not enough to give
rise to probable cause.
The issue on appeal is whether the trial court erred
as to the objective component of probable cause. On that
issue, “the totality of the circumstances” must be considered. State v. Vasquez-Villagomez, 346 Or 12, 23, 203 P3d
193 (2009). The question is whether the officer had sufficient information to make it objectively reasonable to believe that it was “more likely than not that defendant drove while he
was physically or mentally impaired.” State v. Sinkey, 303
798 State v. Suing
Or App 673, 678, 465 P3d 284 (2020). In answering that
question, we rely on the trial court’s express and implied
findings of historical fact, so long as there is constitutionally sufficient evidence to support them, and we review for legal error. State v. DeJong, 368 Or 640, 643, 497 P3d 710 (2021); State v. Sullivan, 322 Or App 563, 564, 520 P3d 911 (2022),
rev den, 370 Or 827 (2023).
As a preliminary matter, we note that the trial
court suppressed the evidence of defendant’s refusal to perform FSTs on a separate ground, that ruling is not challenged, and the state does not rely on the refusal to perform FSTs in arguing probable cause.
The question then is whether McKenna’s belief that
it was more likely than not that defendant had driven under
the influence of intoxicants was objectively reasonable given the totality of the circumstances, including what the hospital security guard told him, what defendant told him, and
what he personally observed.
A key point of dispute on appeal relates to whether
the hospital security guard saw defendant drive away from
the hospital—or, more precisely, whether she reported to
the police that she saw defendant drive away from the hospital. The trial court’s findings on that issue of historical fact are binding on appeal, DeJong, 368 Or at 643, but the
court made some seemingly contradictory findings in its letter opinion, resulting in a dispute on appeal regarding the
found facts.
It is clear from the letter opinion that the trial
court credited McKenna’s testimony regarding what the
security guard reported. We also understand from the letter opinion that the trial court viewed the security guard’s report as sufficiently reliable to be considered in the probable cause analysis. See State v. Pollock, 189 Or App 38,
42, 73 P3d 297 (2003), aff’d on other grounds, 337 Or 618,
102 P3d 684 (2004) (recognizing that information received
from third parties contributes to probable cause only if it
is “sufficiently reliable” and identifying factors relevant to reliability). With that in mind, we address the trial court’s factual findings.
Cite as 350 Or App 795 (2026) 799
Finding No. 1 includes a finding that, when the
security guard called 9-1-1, she reported “that a patient had driven away from the hospital.” Finding No. 3 includes a finding that McKenna “was dispatched on a call of a suspected
DUII driver heading north on Combs Flat [Road]” and that,
when McKenna spoke by phone with the security guard who
made the report, “[t]he security guard told Officer McKenna
that * * * [she] observed [defendant] drive a white Dodge
pick-up out of the parking lot after being advised not to
drive by medical professionals.” It is undisputed that those findings are supported by evidence admitted at the suppression hearing. The question is what to make of Finding No.
4, which states, “No driving was observed by the security
guard or police officer. No calls or reports were received by law enforcement.”
Taken literally, Finding No. 4 is not supported
by the record and, as such, is not binding for purposes of
appeal. DeJong, 368 Or at 643. McKenna testified that he
did not personally see any driving, so that part of the finding is supported. As for the rest of it, McKenna testified that the security guard did not report seeing defendant driving
badly and that no other reports or calls came in about defendant’s driving.1 It may be that the trial court meant to refer to that testimony. But to the extent that the court intended to find that the security guard did not observe defendant
1
Immediately after McKenna testified that the security guard told him she saw defendant drive out of the hospital parking lot in a white Dodge pickup truck, he was asked and answered the following questions:
“Q. And anywhere does she indicate that she—besides seeing him pull
out of the drive in the parking lot, that she saw any bad driving?
“A. From a position in St. Charles, it would be—
“Q. It’s just a yes or no.
“A. No, she didn’t.
“Q. Okay. And did anyone else report seeing [defendant] driving that
night?
“A. No. We had no other calls.
“Q. Okay. So there’s no report of his driving at all?
“A. No.”
In isolation, the last question and answer could be read to mean that no one reported seeing defendant driving at any point, but, in context, it can only be read to mean that no one reported defendant’s driving after he left the hospital parking lot.
800 State v. Suing
driving and that no one (not even the security guard)
reported defendant, that finding is not supported by any evidence. It also contradicts the court’s other express findings, which are supported by evidence, most notably the very specific finding that the security guard told McKenna that she
saw defendant drive out of the parking lot in a white Dodge
truck.
Accordingly, for purposes of the probable-cause
analysis, we understand the trial court to have found as
historical fact that the hospital security guard told dispatch that a patient “had driven away from the hospital” and was
heading north on Combs Flat Road and then told McKenna
in a follow-up call that she “observed [defendant] drive
a white Dodge pick-up out of the parking lot after being
advised not to drive by medical professionals.” Our resolution of that issue disposes of most of defendant’s arguments on appeal, which depend on the trial court having found
that the security guard did not see defendant drive away
from the hospital. The only remaining issue is whether the
information that McKenna had did not rise to the level of
probable cause due to McKenna having not asked defendant
about alcohol consumption other than the whiskey shot and
because the whiskey shot could explain the signs of intoxication that McKenna observed at defendant’s residence. We
conclude that that is not the case.
The totality of the circumstances made it objectively
reasonable for McKenna to believe that it was more likely
than not that defendant had committed DUII when he drove
home from the hospital. McKenna received a credible report
from a hospital security guard that defendant was unsteady
on his feet, smelled of alcohol, and was “obviously drunk”
when he left the hospital; that medical professionals told
him not to drive; and that the security guard saw him drive
out of the parking lot in a white Dodge pickup heading north on Combs Flat Road. McKenna corroborated that defendant
owned a white Dodge pickup, which was parked in defendant’s driveway and still emanating heat when McKenna
arrived, and defendant admitted that he had come home
from the hospital 30 minutes earlier. McKenna also personally observed signs of intoxication, which he perceived
Cite as 350 Or App 795 (2026) 801
to exceed what could be explained by a single shot of whiskey, and which corroborated the security guard’s report that defendant was “obviously drunk” when he left the hospital,
making it less likely that defendant’s appearance was due
to one recent whiskey shot at home. See State v. Foster, 350 Or 161, 173, 252 P3d 292 (2011) (“[A]n observation made by
police that is consistent with criminal conduct does not have to eliminate any possibility of an innocent explanation to
provide probable cause. Probable cause depends on whether
an incriminating explanation remains a probable one, when
all of the pertinent facts are considered.” (Internal citation omitted.)).
This case is distinguishable from Sinkey, on which
defendant relies, both because the security guard provided
more information than the caller in that case and because
McKenna obtained corroborating evidence before arresting
defendant. See Sinkey, 303 Or App at 678 (a 9-1-1 caller’s
report of a “possible drunk driver”—based on him seeing
the defendant drink some beer while driving, stop at a market, slowly get out of his car, buy more beer, and resume
driving—was not enough on its own to create probable cause
for arrest, where the caller did not report seeing any of the usual signs of impairment, such as bloodshot eyes, slurred
speech, or odor of alcohol, and there was no corroboration
done by police before the defendant’s arrest).
Because McKenna had probable cause to arrest
defendant for DUII, the trial court erred in granting suppression of the evidence derived from the arrest.
Reversed and remanded.