State v. Ankeny
| Decision Date | 02 September 2020 |
| Docket Number | A164630 (Control),A164631 |
| Citation | 306 Or.App. 300,474 P.3d 406 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Kelly David ANKENY, Jr., Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Erin J. Snyder Severe, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
In this consolidated appeal, defendant appeals the judgments revoking his probation in two cases, 15CR42153 and 130431551. In both cases, defendant contends that the trial court erred in denying his motion to suppress evidence obtained during a traffic stop for improper display of a permit, ORS 803.655. We conclude that the officer's probable cause in this case dissipated prior to the officer obtaining the evidence that defendant sought to suppress. Therefore, we conclude that the trial court erred in denying the motion to suppress. We reverse and remand.
"We review the denial of a motion to suppress for errors of law." State v. Brown , 293 Or. App. 772, 774, 427 P.3d 221 (2018). "We are bound by the trial court's express and implicit factual findings so long as they are supported by the record." Id. We state the facts in accordance with our standard of review.
While on patrol, a police officer saw a car that had a temporary permit mounted in the left corner of the rear window. Due to the angle of the rear window, the permit could not be read by a car following behind it. The officer followed the car for approximately three-quarters of a mile in an attempt to read the temporary permit and during that time was unable to read the permit at all.
The officer then stopped the car for what the officer characterized as "improper display of the temp tag." After stopping the car, the officer approached the car on foot and while doing so was able to read the temporary permit that was in the rear window. The officer then walked to the car's window, told the driver—defendant in this case—why the officer had stopped him, and asked defendant for his driver's license. Defendant responded that he did not have a driver's license and that he was not supposed to be driving.1
Defendant's driver's license was, in fact, revoked, and because he was driving, the state alleged that defendant had violated his probation in two cases, 15CR42153 and 130431551. At a subsequent probation violation hearing for both cases, defendant moved to suppress evidence that was obtained as a result of the stop.
At the hearing, the state argued that the stop was lawful because the temporary permit defendant displayed was not "readable." Defendant argued that no probable cause existed for the stop because the temporary permit was "visible" and that, in any event, prior to even contacting the defendant—i.e. , when the officer approached defendant's car—it became clear to the officer that the permit was not "somehow invalid or expired."
The trial court denied defendant's motion to suppress, finding that the rear window of defendant's vehicle was "slanted" and that it was more likely than not the officer "couldn't see" the permit and stopped defendant for that violation. Because the uncontroverted evidence during the suppression hearing was that the officer could see the temporary permit that was in defendant's window but could not read it while he was following defendant's car, and given the arguments made to the trial court, we understand the trial court's finding that it was more likely than not that the officer "couldn't see" the permit to be a finding that the officer could not see what was written on the temporary permit during the time the officer was following defendant's vehicle and that that was due to the design of defendant's vehicle rather than the placement of the permit.
After denying the suppression motion, the trial court determined that defendant had violated the conditions of his probations and revoked his probations.
"Under Article I, section 9, of the Oregon Constitution, before a police officer may stop a citizen for a traffic violation, the officer must have probable cause to believe that a violation occurred." State v. Husk , 288 Or. App. 737, 739, 407 P.3d 932 (2017), rev. den. , 362 Or. 665, 415 P.3d 583 (2018). "An officer has probable cause when two conditions are met." Id. "First, the officer must subjectively believe that an offense occurred." Id. "Second, the officer's subjective belief must be objectively reasonable[.]" Id. "[I]n 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." State v. Boatright , 222 Or. App. 406, 410, 193 P.3d 78, rev. den. , 345 Or. 503, 200 P.3d 147 (2008) (emphasis in original). "Whether the facts establish probable cause to stop someone for a traffic violation is a question of law that we review for legal error." Husk , 288 Or. App. at 739, 407 P.3d 932.
In this case, defendant does not dispute that the officer who stopped him subjectively believed that defendant had an improperly displayed temporary permit. Thus, the issue on appeal is whether that belief was objectively reasonable.
As relevant to our analysis in this case, ORS 803.655(1) creates the offense of improper display of a permit. It provides:
"A person commits the offense of improper display of a permit if the person is issued a permit under ORS 803.600, 803.615 or 803.625, and the person does not display the permit on the vehicle in the manner required by ORS 803.650 or as required by the Department of Transportation by rule."
ORS 803.655(1). ORS 803.650 provides:
Thus, under ORS 803.650(1), trip permits issued under ORS 803.600 and temporary permits issued under ORS 803.615 and ORS 803.625, must be placed on the left side of the rear window of a vehicle, unless one of two exceptions apply. Those two exceptions are when (1) a vehicle has no rear window or (2) a vehicle's design or any equipment lawfully added to the vehicle makes it so the permit cannot "easily be seen from outside the vehicle." ORS 803.650(1)(a), (b).
Additionally, ORS 803.650(2) directs the Oregon Department of Transportation (ODOT) to adopt rules for the placement of permits that cannot be placed on the left side of the rear window of a vehicle.
ODOT has adopted OAR 735-032-0030, which provides, in relevant part:
Thus, OAR 735-032-0030(1) requires that, when a vehicle has a rear window, such as the vehicle defendant was driving, temporary registration permits issued under ORS 803.625 must be (1) "readable from the outside of the vehicle" and (2) placed "inside, on the left side and lower corner of the rear window." If a permit cannot be placed in such a way, then, under OAR 735-032-0030(2), the permit must "accompany the vehicle and be available for inspection upon request by a law enforcement officer or any other person authorized to inspect vehicle registration."
Turning to the parties’ arguments on appeal, defendant argues that the officer lacked probable cause to stop him for a traffic violation. Defendant contends that, as used in ORS 803.650(1)(b), "easily be seen" means "visible," and, accordingly, "all ORS 803.650 requires is that the permit be visible from outside the vehicle." In defendant's view, the placement of the temporary permit in this case was in accordance with ORS 803.650(1) because the permit was on the left side of the rear window and was visible from outside the vehicle.
Defendant further contends that OAR 735-032-0030 is inapplicable because, given his proffered construction of ORS 803.650(1)(b) —that "easily be seen" means "visible"—the statutory prerequisites for application of that rule under ORS 803.650 were not met and that, even if OAR 735-032-0030 is applicable, the officer's probable cause to stop defendant dissipated once the officer could read the permit from outside the vehicle.
The state, for its part, argues that both ORS 803.650 and OAR 735-032-0030 require that temporary permits be readable by officers following a vehicle, and defendant's temporary permit was not. In the state's view, the purpose of the temporary permit display requirement is to ensure that state agents tasked with ensuring compliance with the state's vehicle registration rules can read temporary permits from patrol cars. Accordingly, as the state views it, the officer perceived facts that satisfied the elements of a traffic violation, and the officer's probable cause did not dissipate even though, when the officer approached defendant's vehicle, the officer...
To continue reading
Request your trial
-
State v. Hughes
...9, of the Oregon Constitution requires that an officer "have probable cause to believe that a violation occurred." State v. Ankeny , 306 Or. App. 300, 302, 474 P.3d 406 (2020) (internal quotation marks omitted). To have probable cause, an "officer must subjectively believe that an offense o......
-
State v. Sullivan
...violation, Article I, section 9, requires that an officer have probable cause to believe that a violation occurred. State v. Ankeny , 306 Or App 300, 302, 474 P.3d 406 (2020). Probable cause exists where an officer subjectively believes that it is more likely than not that an offense occurr......