State v. Rabanales-Ramos

• Decision Date: 19 August 2015
• Docket Number: A156353.,C132295CR
• Citation: 273 Or.App. 228,359 P.3d 250
• Parties: STATE of Oregon, Plaintiff–Appellant, v. Esmirna Edith RABANALES–RAMOS, Defendant–Respondent.
• Court: Oregon Court of Appeals

273 Or.App. 228

359 P.3d 250

STATE of Oregon, Plaintiff–Appellant

v.Esmirna Edith RABANALES–RAMOS, Defendant–Respondent.

C132295CR

A156353.

Court of Appeals of Oregon.

Argued and Submitted May 19, 2015.

Aug. 19, 2015.

Peenesh H. Shah, Assistant Attorney General, argued the cause for appellant. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Rond Chananudech, Deputy Public Defender, argued the cause for respondent. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Before SERCOMBE, Presiding Judge, and TOOKEY, Judge, and EDMONDS, Senior Judge.

Opinion

TOOKEY, J.

An Oregon State Police trooper stopped defendant for driving while using a mobile communication device, a violation of ORS 811.507. During the traffic stop, the trooper developed probable cause to arrest defendant for the crime of driving under the influence of intoxicants, and defendant was later charged with felony driving under the influence of intoxicants, ORS 813.011. Before trial, defendant moved to suppress the evidence obtained during the stop, arguing that the trooper did not have probable cause to initiate the traffic stop. The trial court granted defendant's motion, and the state now appeals. We conclude that the trooper's belief that defendant had “use[d]” a cell phone while driving, in violation of ORS 811.507, was not objectively reasonable under the circumstances. Accordingly, we affirm.

This case centers on the correct interpretation of ORS 811.507.¹ That statute provides, in part:

“(1) As used in this section:

“(a) ‘Hands-free accessory’ means an attachment or built-in feature for or an addition to a mobile communication device, whether or not permanently installed in a motor vehicle, that when used allows a person to maintain both hands on the steering wheel.

“(b) ‘Mobile communication device’ means a text messaging device or a wireless, two-way communication device designed to receive and transmit voice or text communication.

“(2) A person commits the offense of operating a motor vehicle while using a mobile communication device if the person, while operating a motor vehicle on a highway, uses a mobile communication device.

“(3) This section does not apply to a person who activates or deactivates a mobile communication device or a function of the device or who uses the device for voice communication if the person:

“(a) Is summoning medical or other emergency help if no other person in the vehicle is capable of summoning help;

“(b) Is using a mobile communication device for the purpose of farming or agricultural operations;

“(c) Is operating an ambulance or emergency vehicle;

“(d) Is 18 years of age or older and is using a hands-free accessory;

“(e) Is operating a motor vehicle while providing public safety services or emergency services;

“(f) Is operating a motor vehicle while acting in the scope of the person's employment as a public safety officer, as defined in ORS 348.270 ;

“(g) Is operating a tow vehicle or roadside assistance vehicle while acting in the scope of the person's employment;

“(h) Holds a valid amateur radio operator license issued or any other license issued by the Federal Communications Commission and is operating an amateur radio;

“(i) Is operating a two-way radio device that transmits radio communication transmitted by a station operating on an authorized frequency within the citizens' or family radio service bands in accordance with rules of the Federal Communications Commission;

“(j) Is operating a vehicle owned or contracted by a utility for the purpose of installing, repairing, maintaining, operating or upgrading utility service, including but not limited to natural gas, electricity, water or telecommunications, while acting in the scope of the person's employment; or

“(k) Is using a function of the mobile communication device that allows for only one-way voice communication while the person is:

“(A) Operating a motor vehicle in the scope of the person's employment;

“(B) Providing transit services; or

“(C) Participating in public safety or emergency service activities.

“(4) The offense described in this section, operating a motor vehicle while using a mobile communication device, is a Class C traffic violation.”

(Emphases added.)

Except as noted below, the relevant facts are undisputed. Defendant was driving a vehicle in the right lane of a public highway at approximately 2:00 a.m. when an Oregon State Police trooper, who was driving in the left lane, pulled up alongside her in his patrol vehicle. As the trooper drove alongside defendant, he observed “light coming up to [defendant's] face” that he believed was coming “from a device that was in her hand that she was looking down at.” The trooper slowed down and let defendant pass him, and then he moved into the right lane behind her. The light from the device remained on for approximately 10 seconds.² The trooper did not see defendant put the device up to her ear, move her lips as if she were talking, or push any buttons.

Believing that defendant had “use[d] a mobile communication device” in violation of ORS 811.507, the trooper initiated a traffic stop. During the course of the traffic stop, the trooper smelled an odor of alcohol coming from inside the vehicle, and he noticed that defendant's speech was slightly slurred and that she had bloodshot, glassy, and watery eyes, droopy eyelids

, and a “lethargic” look on her face. The trooper administered field sobriety tests and subsequently arrested defendant for driving under the influence of intoxicants.

Before trial, defendant filed a motion to suppress the evidence obtained during the traffic stop, on the ground that the trooper did not have probable cause to stop defendant for using a mobile communication device while driving in violation of ORS 811.507. Specifically, defendant argued that, because the trooper did not have probable cause to believe that the device in defendant's hand was a “mobile communication device”—and not, for example, a GPS mapping device or music-playing device—the evidence obtained during the stop should be suppressed under both Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution.³ Further, defendant argued that, even assuming that the trooper had probable cause to believe that the device in defendant's hand was a mobile communication device, “simply looking at a [cell phone], without more,” does not constitute “use” for purposes of ORS 811.507(2). Thus, defendant argued, because the trooper only saw defendant looking down at what he believed was a cell phone, and not holding it up to her ear, moving her lips as if she were talking, or pushing any buttons, he did not have probable cause to believe that defendant had “use[d]” a mobile communication device, as prohibited by ORS 811.507.

In response, the state argued that the trooper had probable cause to believe that the device in defendant's hand was a cell phone, based on “the prevalence of cell phones in [the trooper's] observations as a police officer,” which, according to the state, was “consistent with common sense and experience.” The state also argued that the trooper had probable cause to believe that defendant “use[d]” the cell phone, because ORS 811.507 not only prohibits the use of such a device for communication purposes while driving, it prohibits “any use” of such a device, subject only to the limited exceptions set forth in ORS 811.507(3).

The trial court granted defendant's motion to suppress, concluding, without further explanation, that “at most the police officer had a reasonable suspicion to believe that [defendant] was violating the statute, and not probable cause[;] it didn't reach that level.”

The state now appeals, arguing that the trooper observed facts that, “when combined with his training and experience, objectively established that” (1) “the device at issue was more likely than not a [cell phone], which is a ‘mobile communication device’ under ORS 811.507(2) ”; and (2) “defendant was more likely than not employing her [cell phone] for a purpose prohibited by ORS 811.507(2).” According to the state, ORS 811.507(2) prohibits any use of a mobile communication device, “with limited exception only for adjusting settings such as volume or power.” The state argues that the trooper, based on his observation of defendant looking down at a lit screen over a period of 10 seconds, had a “substantial objective basis for believing” that the device in defendant's hand was a cell phone, and that, after observing defendant “looking at and operating” the cell phone over the course of approximately 10 seconds, the trooper reasonably believed that defendant was “us[ing]” the cell phone in violation of ORS 811.507(2).

Defendant responds that the trooper's belief that defendant had violated ORS 811.507 was not objectively reasonable under the circumstances. First, defendant contends that the trooper's “belief that defendant had a [cell phone]—as opposed to an iPod, a Kindle Fire, or a small tablet—required a stacking of inferences.” Second, defendant contends that, even assuming that the trooper reasonably believed that defendant had a cell phone, his belief that defendant had “use[d]” the cell phone in violation of ORS 811.507 was not objectively reasonable. In defendant's view, a person violates ORS 811.507 only when that person uses a mobile communication device for communication purposes—i.e., for voice communication or text messaging. Further, defendant argues, the exception for activating or deactivating the device or a function of the device, as set forth in ORS 811.507(3), can include turning a cell phone on or off, or opening an application on a smartphone.⁴ In other words, according to defendant, the trooper's observation that defendant had looked down at a lit screen at least twice within 10 seconds was not sufficient to create an objectively reasonable belief that she had violated ORS 811.507.

We review a...