State v. Ordner

287 P.3d 1256, 252 Or. App. 444, 2012 WL 4379445, 2012 Ore. App. LEXIS 1182
CourtCourt of Appeals of Oregon
DecidedSeptember 26, 2012
Docket09CR0715; A147508
StatusPublished
Cited by3 cases

This text of 287 P.3d 1256 (State v. Ordner) 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. Ordner, 287 P.3d 1256, 252 Or. App. 444, 2012 WL 4379445, 2012 Ore. App. LEXIS 1182 (Or. Ct. App. 2012).

Opinion

BREWER, J.

Defendant appeals from a judgment of conviction for possession of marijuana, ORS 475.864(2), and driving under the influence of intoxicants (DUII), ORS 813.010(4), that the trial court entered following his conditional guilty pleas to those offenses. In a single assignment of error, defendant asserts that the trial court erred in denying his motion to suppress evidence obtained as a result of the underlying traffic stop. We review for errors of law, State v. Riddle, 149 Or App 141, 144, 941 P2d 1079, rev den, 326 Or 68 (1997), and affirm.

Officer Hamilton was parked near downtown Grants Pass when he saw defendant drive by. Hamilton turned onto the street behind defendant and began driving in the same direction. Defendant illuminated his right-turn signal and turned right onto a side street. Hamilton believed that defendant had failed to signal for at least 100 feet before turning right and that defendant had turned too widely, so that his car was “straddling” the reflectors placed in the center of the side street that he had turned onto as he executed the turn. Hamilton stopped defendant; in the course of the stop, Hamilton made observations and obtained statements and other evidence that ultimately led him to arrest defendant for the charged offenses.

The events were recorded on the officer’s patrol car video equipment. Using reference points from that video, the officer later measured the distance that defendant had operated his turn signal and determined that distance to be 96.4 feet. At the suppression hearing, Hamilton testified as follows while the video recording was being played:

“You can see in the center [of the street onto which defendant turned] there’s reflectors and as I make my turn you can see he’s in the center going down the center of the road, of the reflectors. And then he drifts back over to the right.”

Hamilton further explained, “And you can see as he makes his turn he’s going down the center rather than in his side. And you can see as he gets farther down he drifts back in to his lane.”

[446]*446Defendant did not contend that the officer lacked a subjective belief that defendant had committed traffic infractions. Instead, defendant disputed the objective reasonableness of the officer’s belief that he had committed infractions. In particular, defendant presented an investigator’s opinion testimony — based on his review of the video recording — that defendant had signaled between 177 and 204 feet before making the turn and that defendant had remained on the right side of the road after making his turn onto the side street.

At the conclusion of the suppression hearing, defendant argued that the officer’s subjective belief that defendant had committed traffic infractions was objectively unreasonable. Defendant asserted that, “under the totality of — of what you’ve heard today * * * the stop was objectively unreasonable under the circumstances and any evidence obtained as a result of that stop needs to be suppressed.” The prosecutor replied that the officer’s subjective belief that defendant had committed two separate traffic infractions was objectively reasonable and that the officer therefore had probable cause to stop defendant. Neither party focused on any particular traffic statute in making their respective opposing arguments.

The trial court declined to make any finding about the reasonableness of the officer’s subjective belief about defendant’s signaling distance, but the court concluded that the officer’s subjective belief that defendant had made an unlawful wide turn was objectively reasonable. In particular, the court noted that 5th Street — the side street onto which defendant turned — was not “well marked” but that the reflectors in the middle of the street, as described by the officer, were visible on the video. Noting that it had watched the video three times, the court explained that, on its initial viewing, it “seemed clear” that the officer could believe defendant crossed over the center line; on its second viewing, however, the court was not so sure; and on its third viewing:

“ [I] t certainly appeared to me that [defendant] was over the centerline right after the turn, I think that I must fin[d] that the officer had — was objectively — acting objectively reasonably in connection with his subjective belief that the [447]*447traffic infraction of failing to maintain a lane or driving over the centerline had occurred at that point.”

In denying defendant’s motion to suppress, the trial court opined that the officer had probable cause to believe that defendant had violated ORS 811.370 (failure to drive within a lane), and ORS 811.310 (crossing the centerline).1 As noted, defendant appeals from the judgment of conviction that the court entered based on his ensuing conditional guilty pleas.

When a defendant moves to suppress evidence obtained pursuant to a warrantless seizure, the state has the burden of demonstrating the lawfulness of the seizure. State v. Sargent, 323 Or 455, 461, 918 P2d 819 (1996). The state may meet its burden by proving that the officer who seized the defendant had probable cause to believe that the defendant had committed a traffic offense. State v. Isley, 182 Or App 186, 190, 48 P3d 179 (2002). “Probable cause exists if, at the time of the stop, the officer subjectively believes [448]*448that the infraction occurred” and that belief is objectively reasonable. Id. In State v. Boatright, 222 Or App 406, 410, 193 P3d 78, rev den, 345 Or 503 (2008), we summarized the general principles circumscribing our inquiry into whether an officer’s belief is “objectively reasonable”:

“[A]n officer’s belief may be objectively reasonable even if it turns out to be incorrect. Thus, probable cause may be based on a mistake of fact. Moreover, probable cause may be based on a mistake as to which law the defendant violated. Nevertheless, 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. Finally, although the facts as perceived by the officer must constitute the elements of an offense, in order to satisfy the objective component, an officer need not eliminate the possibility that a defense or exception to the offense applies.”

(Internal citations omitted.) “[A]n officer’s subjective belief that a traffic infraction occurred is objectively reasonable if, and only if, the facts as the officer perceived them actually satisfy the elements of a traffic infraction.” State v. Tiffin, 202 Or App 199, 204,121 P3d 9 (2005).

Defendant asserts that the trial court erred in concluding that the officer’s subjective belief that defendant had committed a traffic violation by straddling the centerline was objectively reasonable based on ORS 811.310.

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Related

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349 P.3d 576 (Court of Appeals of Oregon, 2015)
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Cite This Page — Counsel Stack

Bluebook (online)
287 P.3d 1256, 252 Or. App. 444, 2012 WL 4379445, 2012 Ore. App. LEXIS 1182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ordner-orctapp-2012.