State v. Stookey

• Decision Date: 27 February 2013
• Docket Number: A147101.,10CR0539
• Citation: 255 Or.App. 489,297 P.3d 548
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Robert Jason STOOKEY, Defendant–Appellant.
• Court: Oregon Court of Appeals

255 Or.App. 489

297 P.3d 548

STATE of Oregon, Plaintiff–Respondent,

v.Robert Jason STOOKEY, Defendant–Appellant.

10CR0539; A147101.

Court of Appeals of Oregon.

Argued and Submitted July 31, 2012.

Decided Feb. 27, 2013.

David L. Sherbo–Huggins, Deputy Public Defender, argued the cause for appellant. With him 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 John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before ARMSTRONG, Presiding Judge, and DUNCAN, Judge, and BREWER, Judge pro tempore.

DUNCAN, J.

This is a criminal case in which defendant appeals a judgment of conviction and sentence for one count of failure to report as a sex offender, ORS 181.599. Defendant assigns error to the trial court's denial of his motion to suppress evidence obtained as a result of a traffic stop, which defendant asserts was without probable cause and, therefore, violated his right to be free from unreasonable searches and seizures under Article I, section 9, of the Oregon Constitution.¹ For the reasons that follow, we reverse and remand.

We first review the legal test for probable cause. 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. ORS 810.410(2), (3); State v. Matthews, 320 Or. 398, 402, 884 P.2d 1224 (1994). 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. State v. Miller, 345 Or. 176, 186, 191 P.3d 651 (2008) (describing State v. Cloman, 254 Or. 1, 456 P.2d 67 (1969)). For an officer's belief to be objectively reasonable, the facts, as the officer perceives them, must actually constitute a violation. State v. Tiffin, 202 Or.App. 199, 203, 121 P.3d 9 (2005). Thus, an officer's belief may be objectively reasonable even if the officer is mistaken as to the facts. Id. (citing State v. Hayes, 99 Or.App. 387, 389, 782 P.2d 177 (1989), rev. den.,309 Or. 441, 789 P.2d 5 (1990), and State v. Isley, 182 Or.App. 186, 190, 48 P.3d 179 (2002), for the proposition that a “probable cause determination requires examination of facts of which officer was cognizant and officer's beliefs about those facts need not turn out to be correct”).

When reviewing a denial of a motion to suppress, we are bound by the trial court's findings of historical fact if there is evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). If the court did not make findings on a particular issue, and there is evidence from which the facts could be decided more than one way, we presume that the court found the relevant historical facts consistently with its ultimate conclusion. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). We state the facts in accordance with those standards.

Recruit Trooper Looney was patrolling Highway 42 in Coos County on March 17, 2010. As the trooper, who was driving in the left lane, began to pass defendant, who was driving in the right lane, he noticed a horizontal crack in defendant's windshield that he believed was in defendant's line of sight. The trooper pulled defendant over because he was concerned that the crack could be distracting and dangerous. The crack was the trooper's only reason for stopping defendant. The trooper requested defendant's driver's license, which the trooper used to conduct records checks through dispatch. The records checks revealed that defendant was out of compliance with his sex-offender registration requirements. The trooper arrested defendant for failing to report as a sex offender, ORS 181.599.

Before trial, defendant filed a motion to suppress the evidence that the trooper obtained after stopping him, arguing that the trooper lacked probable cause to believe that he had committed a traffic violation. The state filed a written response in which it argued that the trooper had probable cause to believe that defendant had violated ORS 815.020, which provides:

“(1) A person commits the offense of operation of an unsafe vehicle if the person does any of the following:

“(a) Drives or moves on any highway any vehicle which is in such unsafe condition as to endanger any person.

“(b) Owns a vehicle and causes or knowingly permits the vehicle to be driven or moved on any highway when the vehicle is in such unsafe condition as to endanger any person.

“(2) The offense described in this section, operation of an unsafe vehicle, is a Class B traffic violation.”

The state argued that the trooper had probable cause to believe that defendant had violated ORS 815.020 because a cracked windshield (1) can interfere with a driver's ability to see the road, increasing the likelihood of a collision, and [255 Or.App. 493]2) is more likely to shatter if struck by a rock or other object, or in the event of a collision.²

At the pretrial hearing on the motion to suppress, the trooper testified, on direct examination, as follows:

“[TROOPER:] [A]s I was overtaking [defendant] going to pass him I noticed that the windshield was cracked directly in front of him—in front of the driver.

“[STATE:] Can you describe the crack a little bit?

“[TROOPER:] The crack was horizontal. It wasn't vertical. And, it was in the line of sight for him, you know, if he was driving.

“[STATE:] Did that concern you?

“[TROOPER:] Yes. It's a safety issue. Just that it can be distracting. It can cause reflection from the sun. It's just—it's as if—those little crystals that people hang from their rear view mirrors, they reflect light. It's the same sort of situation. You've got different planes. And, as the brake—light can reflect in the eyes.”

On cross-examination, the trooper further testified:

“[DEFENSE COUNSEL:] And, was the—the crack on the windshield, was it up high, or low, or directly—directly in his line of sight?

“[TROOPER:] It was below the center, but it was in his sight in the—of—through the driver's visual path.

“[DEFENSE COUNSEL:] About how far do you think it was below the center of the windshield?

“[TROOPER:] I do not recall.” ³

The trooper did not testify to any other facts regarding the crack or why, in his view, it was dangerous.

The court denied defendant's motion to suppress, concluding,

“I still believe that * * * Trooper Recruit Looney had a reasonable basis—an objective, reasonable basis and a substantial basis to pull [defendant] over for the violation of the crack in the windshield. So, I am not suppressing this[.]”

Defendant entered a conditional guilty plea, and the court sentenced him to 24 months of bench probation and $1,152 in fines. Defendant appeals, assigning error to the denial of his motion to suppress.

On appeal, defendant does not challenge the trooper's subjective belief that he perceived a horizontal crack in defendant's windshield in defendant's line of sight. Instead, defendant argues that it was not objectively reasonable for the trooper to believe that those facts constituted a violation of ORS 815.020. Defendant argues that the term “endanger” in that statute means “to bring into danger or peril of probable harm or loss,” Webster's Third New Int'l Dictionary 748 (unabridged ed. 2002), and that the harms posited by the state are too speculative to be “probable.” In a memorandum of additional authorities, defendant asserts that his citation to the definition of the transitive form of “endanger” is more relevant than the state's citation to the definition of the intransitive form because the statute uses the transitiveform of “endanger.” See State v. Glushko/Little, 351 Or. 297, 311, 266 P.3d 50 (2011) (holding that, when consulting dictionaries for the ordinary meaning of statutory terms, courts must examine the definition of the part of speech actually used in the statute).

Defendant also notes that the violation of ORS 815.020 is a Class B traffic violation, and, as such, it is more serious than a violation for driving a vehicle that lacks a proper brake system, ORS 815.125, ORS 815.130 (Class C traffic violation); lacks headlights or brake lights, ORS 816.320, ORS 816.330 (Class C traffic violation); lacks a rear view mirror, ORS 815.235 (Class C traffic violation); or has a windshield covered by any material that “prohibits or impairs the ability to see into or out of the vehicle,” ORS 815.220 (Class D traffic violation). Finally, defendant observes that the section of the Oregon Vehicle Code relating to windows and windshields, ORS 815.210 to 815.222, does not prohibit driving with a cracked windshield. If the legislature had intended to make driving with a cracked windshield a violation of the vehicle code, defendant argues, it would have included such a provision in the section relating to windshields.

The state counters that ORS 815.020 does not require the risk of harm to be probable. According to the state, “endanger” means “create a dangerous situation,” Webster's at 748, and the crack, as the officer perceived it, “could impair the driver's vision, in addition to affecting the structural integrity of the glass itself, creating a risk of injury to defendant and others traveling on the road.” Accordingly, the state argues that the trooper had probable cause to initiate the traffic stop.⁴

As noted above, whether an officer had probable cause to stop an individual for a traffic violation is a legal question consisting of two elements: first, whether the officer subjectively believed that the person had committed a violation, and second, whether the officer's belief was objectively reasonable under the circumstances. Miller, 345 Or. at 186, 191 P.3d 651. Defendant does not challenge the trial court's finding that the trooper subjectively believed that defendant had committed a violation. Thus, the only issue on appeal is whether the...