State v. Anderson

• Decision Date: 14 November 2013
• Docket Number: 105119MI; A149005.
• Citation: 314 P.3d 335,259 Or.App. 448
• Parties: STATE of Oregon, Plaintiff–Respondent, v. George Duane ANDERSON, Defendant–Appellant.
• Court: Oregon Court of Appeals

259 Or.App. 448

314 P.3d 335

STATE of Oregon, Plaintiff–Respondent,

v.George Duane ANDERSON, Defendant–Appellant.

105119MI; A149005.

Court of Appeals of Oregon.

Argued and Submitted Aug. 21, 2013.

Decided Nov. 14, 2013.

Lindsey J. Burrows, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

EGAN, J.

Defendant appeals a judgment of conviction for driving while suspended, ORS 811.182(4), contending that the trial court erred in denying his motion to suppress evidence that was obtained during a traffic stop. After observing a crack in defendant's windshield, a sheriff's deputy stopped defendant's pickup truck and, in the course of the stop, discovered that defendant's license was suspended. Defendant contends that the officer lacked objective probable cause to believe that the windshield crack placed defendant in violation of either ORS 815.020 or ORS 815.270. For the following reasons, we reverse and remand.

The facts are not in dispute. Jackson County Sheriff's Deputy McKay was traveling north when he saw a pickup truck turn south onto the same road; he observed that the pickup truck's windshield was cracked. The only description of the crack that appears in the record was provided at the motion to suppress hearing during the state's direct examination of McKay:

“[MCKAY]: I noticed a large crack going through the windshield of that vehicle and that is why I stopped the vehicle.

“[STATE]: And can you describe that crack for us, please?

“[MCKAY]: The crack was going from—stretching from the passenger side across the windshield all the way to the driver's side of the vehicle.

“[STATE]: And what part of the windshield was it located, down near the wipers or up towards the ceiling of the cab?

“[MCKAY]: It was more up. It was more in the area to where it could have, I guess, impeded the vision of the driver. So it would have been kind of in the eyesight area.

“[STATE]: And was any portion of that a spiderweb crack?

“[MCKAY]: It was off to the passenger side, so off to the right of the driver there was some spiderwebbing.

“[STATE]: Okay. And then the line goes all the way across from the passenger side to the driver's side?

“[MCKAY]: Correct.

“[STATE]: And it's basically a level line all the way across maintaining at that somewhere in the eye level area the whole way across?

“[MCKAY]: Yeah.

“[STATE]: Depending on the height of the driver, obviously?

“[MCKAY]: Yeah, exactly.

“[STATE]: Now, did you feel like that violated any statutes?

“[MCKAY]: Yes. I believe that would be operating an unsafe vehicle.

“[STATE]: And what about a crack would make it an unsafe driving situation?

“[MCKAY]: Well, there's * * * numerous things that I believe makes it unsafe. For one, you have a crack going roughly through the eyesight of a driver. So he's not only focusing down the road from what he's looking at, he also has something in his vision that is gonna be—his eye is gonna be focusing on somewhat. So he's kind of looking back and forth. In addition to [that] you have spiderwebbing off to the right so if he's looking to the right clearing for a turn or if he's looking at oncoming traffic coming from the right, that's gonna be in the way of his vision as well.”

McKay went on to explain that he was concerned that light could potentially refract off the crack into the passenger compartment of the vehicle. He was also concerned that the crack had compromised the integrity of the windshield so that it would not offer the same protection as an uncracked windshield in the event that an object struck it.

As noted, McKay stopped defendant because of the cracked windshield. During the course of that stop, McKay learned that defendant's license had been suspended. McKay accordingly issued defendant a citation for a violation of ORS 811.182—driving while suspended—and ORS 815.220—obstruction of vehicle windows.

Defendant filed a motion to suppress all evidence obtained as a result of the traffic stop, contending that McKay lacked probable cause to believe that he had committed a traffic violation and that suppression was therefore required under Article I, section 9, of the Oregon Constitution.¹

“In order to stop and detain a person for a traffic violation, an officer must have probable cause to believe that the person has committed a violation. Probable cause has two components. First, at the time of the stop, the officer must subjectively believe that a violation has occurred, and second, that belief must be objectively reasonable under the circumstances. For an officer's belief to be objectively reasonable, the facts, as the officer perceives them, must actually constitute a violation. Thus, an officer's belief may be objectively reasonable even if the officer is mistaken as to the facts.”

State v. Stookey, 255 Or.App. 489, 491, 297 P.3d 548 (2013) (citations omitted) (emphasis in original).

At the hearing on defendant's motion to suppress, McKay stated that, although he had cited defendant for driving with an obstructed window under ORS 815.220, he had listed the wrong statute in the citation. Thus, the state made no argument that it was objectively reasonable for McKay to think that defendant's windshield placed him in violation of ORS 815.220. Instead, the state argued—as it does in this appeal—that the facts that McKay perceived constituted a violation of both ORS 815.020—operation of an unsafe vehicle—and ORS 815.270—operation of a vehicle that is loaded or equipped to obstruct the driver. See State v. Boatright, 222 Or.App. 406, 410, 193 P.3d 78,rev. den.,345 Or. 503, 200 P.3d 147 (2008) (stating that “probable cause may be based on a mistake as to which law the defendant violated” and that “in order to satisfy the objective component, the facts that the officer perceives to exist must establish the elements of an offense, even if not the offense that the officer believed the defendant committed” (emphasis in original)).

The trial court denied the motion to suppress. It concluded that the stop was supported by probable cause because the facts that McKay perceived about the windshield made it objectively reasonable for him to conclude that the condition of defendant's windshield placed him in violation of ORS 815.020. Defendant subsequently pleaded no contest to the charge of driving while suspended pursuant to a plea agreement that preserved, in writing, his right to appeal the denial of his motion to suppress. This timely appeal followed.

On appeal, defendant contends that McKay lacked an objectively reasonable basis for stopping him because the facts, as McKay perceived them, did not constitute a violation of either ORS 815.020 or ORS 815.270. Before turning to the merits of the parties' arguments under those two statutes, we first address the state's contention that defendant failed to adequately present the trial court with the statutory interpretation argument under ORS 815.020 that he now advances and that it is, consequently, unpreserved for purposes of this appeal.

The Supreme Court has summarized the policies underlying the preservation requirement as follows:

“Preservation gives a trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made, which in turn may obviate the need for an appeal. Preservation also ensures fairness to an opposing party, by permitting the opposing party to respond to a contention and by otherwise not taking the opposing party by surprise. Finally, preservation fosters full development of the record, which aids the trial court in making a decision and the appellate court in reviewing it. Our jurisprudence, thus, has embraced the preservation requirement, not to promote form over substance but to promote an efficient administration of justice and the saving of judicial time.

“Preservation rules are pragmatic as well as prudential. What is required of a party to adequately present a contention to the trial court can vary depending on the nature of the claim or argument; the touchstone in that regard, ultimately, is procedural fairness to the parties and to the trial court.”

Peeples v. Lampert, 345 Or. 209, 219–20, 191 P.3d 637 (2008) (internal quotation marks, citations, and brackets omitted). Thus, to preserve an argument for appeal, “a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately * * *.” State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000).

The record reveals that defendant adequately preserved his argument under ORS 815.020. The trial court clearly understood that the state was relying on that statute as support for its argument that there was probable cause for the stop; the court explicitly asked defense counsel why the statute did not apply to support probable cause. Defense counsel responded that ORS 815.020 did not apply because the windshield crack was insufficient to render the vehicle unsafe under the statute. That is, at its core, the same issue that defendant raises in this appeal. See State v. Hitz, 307 Or. 183, 188, 766 P.2d 373 (1988) (noting the distinction “between raising an issue at trial, identifying a source for a claimed position, and making a particular argument ” and that “[t]he first ordinarily is essential, the second less so, the third least” (emphasis in original)). Although defendant's arguments concerning a proper interpretation of ORS 815.020 are undoubtedly more fully articulated in this appeal than they were before the trial court, the policies...