State v. Love-Faust

On appellant’s petition for reconsideration filed April 5, reconsideration allowed, former opinion (309 Or App 734, 483 P3d 45) modified and adhered to as modified May 26, 2021

STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL LOVE-FAUST, aka Michael Love Faust, aka Michael Faust-Love, aka Faust Michael Love, Defendant-Appellant. Douglas County Circuit Court 19CR19907, 18CR59898; A171278 (Control), A171279 489 P3d 149

Ann Marie Simmons, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anna Belais, Deputy Public Defender, Office of Public Defense Services, for petition. Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge. PER CURIAM Reconsideration allowed; former opinion modified and adhered to as modified.

Cite as 311 Or App 756 (2021) 757

PER CURIAM Defendant has petitioned for reconsideration of our decision in State v. Love-Faust, 309 Or App 734, 483 P3d 45 (2021). In that decision, we concluded that, under the total- ity of the circumstances, “defendant was not in compelling circumstances when [probation officer] Woods approached defendant on the street and asked him about suspected probation violations.” Id. at 741. Defendant asserts that we committed a legal error in determining “whether defendant could terminate the encounter” because the following para- graph “erroneously framed the issue and analysis as a sub- jective question”: “Similarly, we reject defendant’s contention that he was in compelling circumstances because he could not termi- nate the encounter. As an initial matter, it is not clear from the record that defendant subjectively believed that he could not terminate the encounter. The trial court did not make an explicit finding on that issue and this is not a situ- ation in which we would assume that the trial court implic- itly made such a finding. See Pereida-Alba v. Coursey, 356 Or 654, 671, 342 P3d 70 (2015) (explaining that, although a reviewing court will presume a trial court resolved a fac- tual dispute consistently with its ultimate conclusion, the presumption has its limits; that is, ‘[i]f an implicit factual finding is not necessary to the trial court’s ultimate conclu- sion or is not supported by the record, then the presump- tion does not apply’). In any event, even if defendant subjec- tively believed that he could not terminate the encounter, consistent with the reasons described above with respect to the probation-related questions leading up to the request for consent, we reject the argument that defendant’s inabil- ity to terminate the encounter created compelling circum- stances under the totality of the circumstances presented by this case.” Id. at 743. We grant reconsideration and modify our opinion by adding the following footnote to the end of the quoted para- graph above: “In rejecting defendant’s argument that he was not free to terminate the encounter, we do not mean to suggest that the test is a subjective one. As stated above, the test for

758 State v. Love-Faust

evaluating whether the circumstances were compelling is an objective test. Shaff, 343 Or at 645 (‘The question [of] whether the circumstances were compelling does not turn on either the officer’s or the suspect’s subjective belief or intent; rather, it turns on how a reasonable person in the suspect’s position would have understood his or her situation.’).” Reconsideration allowed; former opinion modified and adhered to as modified.