State v. Nguyen Ngoc Pham

433 P.3d 745, 295 Or. App. 322
CourtCourt of Appeals of Oregon
DecidedDecember 12, 2018
DocketA161825
StatusPublished
Cited by2 cases

This text of 433 P.3d 745 (State v. Nguyen Ngoc Pham) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Nguyen Ngoc Pham, 433 P.3d 745, 295 Or. App. 322 (Or. Ct. App. 2018).

Opinions

ARMSTRONG, P. J.

*324Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), assigning error to the trial court's denial of his motion to suppress evidence that the police obtained as a result of stopping defendant for a traffic infraction. According to defendant, the stop was unlawful because the officers lacked probable cause to believe that defendant had committed an infraction. We conclude that the stop was supported by probable cause and affirm.

The following facts are not disputed. Police officers encountered defendant as he drove his car while holding a cell phone in his hand. One of the officers "saw the screen was lit up * * * and * * * could see [defendant] pushing something on the screen." However, the officer could not identify the specific action that defendant was performing on his phone. When defendant looked up and saw that the vehicle next to him was a police car, he immediately put his cell phone down.

The officers stopped defendant. When they approached defendant's car, they smelled an odor of alcohol coming from the car and asked defendant how much he had had to drink that night. Defendant replied that he had had three beers. The officers asked and defendant consented to perform field-sobriety tests. Defendant showed signs of intoxication in all of the tests, which led the officers to arrest defendant for DUII. Defendant subsequently submitted to a breathalyzer test that determined that defendant's blood-alcohol level exceeded the 0.08 limit specified in ORS 813.300.

Before trial, defendant moved to suppress all evidence obtained from the traffic stop, arguing that the stop was unlawful because the officers had not had probable cause to believe that defendant had committed a traffic infraction before they stopped him. Defendant contended that the officers lacked probable cause to believe that he was "using" a cell phone in violation of state law because the law prohibited only the act of using a cell phone as a communication device, and the officers had an insufficient basis on which to believe that defendant was using his cell phone to communicate with anyone. The trial court denied *325defendant's motion, concluding that "the fact that [the officer] indicated [ ] defendant was pushing on the screen of the cell phone [was] enough to be probable cause that [defendant was] using it, either dialing or texting."

On appeal, defendant reprises his argument, challenging the trial court's denial of his suppression motion. We review a trial court's denial of a suppression motion for legal error. State v. Carson , 287 Or. App. 631, 634, 404 P.3d 1017 (2017).

An officer can lawfully stop and detain a person for a traffic infraction only if the officer has probable cause to believe that the person has committed an infraction. State v. Matthews , 320 Or. 398, 403, 884 P.2d 1224 (1994). Probable cause has both subjective and objective components; to satisfy those requirements, the state must establish that an officer subjectively believed that the person whom the officer stopped had committed an infraction and that the officer's belief was "objectively reasonable under the circumstances." Id . For an officer's belief to be objectively reasonable, we consider the totality of circumstances at the time of the stop and all reasonable inferences that an officer may draw from those circumstances. State v. Keller , 280 Or. App. 249, 253, 380 P.3d 1144 (2016). The state must show that "the facts, as the officer perceives them , * * * actually *747constitute a violation." State v. Stookey , 255 Or. App. 489, 491, 297 P.3d 548 (2013) (emphasis in original).

Both parties agree that the subjective prong of the probable cause inquiry is satisfied here. Hence, the issue is whether the officers' belief that defendant had committed an infraction was objectively reasonable under the circumstances. The state contends that the officers had probable cause to believe that defendant had violated ORS 811.5071 by using his cell phone as a communication device while driving. ORS 811.507 prohibits the use of a "mobile *326communication device" while operating a motor vehicle. The statute defines "mobile communication device" as "a text messaging device or a wireless, two-way communication device designed to receive and transmit voice or text communication." ORS 811.507(1)(b).

Defendant argues that, based on the facts known to the officers, the officers did not have probable cause to believe that he had violated ORS 811.507. Defendant relies heavily on our decision in State v. Rabanales-Ramos , 273 Or. App. 228, 359 P.3d 250 (2015), as support for his argument. In Rabanales-Ramos , a state trooper observed "light coming up to [the defendant's] face," which the trooper believed was coming "from a device that was in [the defendant's] hand that she was looking down at." Id. at 231,

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Bluebook (online)
433 P.3d 745, 295 Or. App. 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nguyen-ngoc-pham-orctapp-2018.