Argued and submitted on August 21, 2013.
Jackson County Circuit Court 105119MI Timothy Barnack, Judge.
Lindsey J. Burrows, Deputy Public Defender, argued the cause for appellant. With her 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 Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
Defendant appeals a judgment of conviction for driving while suspended, ORS 811.182(4), contending that the trial court erred in denying his motion to suppress evidence that was obtained during a traffic stop. After observing a crack in defendant's windshield, a sheriff's deputy stopped defendant's pickup truck and, in the course of the stop, discovered that defendant's license was suspended. Defendant contends that the officer lacked objective probable cause to believe that the windshield crack placed defendant in violation of either ORS 815.020 or ORS 815.270. For the following reasons, we reverse and remand.
The facts are not in dispute. Jackson County Sheriff's Deputy McKay was traveling north when he saw a pickup truck turn south onto the same road; he observed that the pickup truck's windshield was cracked. The only description of the crack that appears in the record was provided at the motion to suppress hearing during the state's direct examination of McKay:
"[MCKAY]: I noticed a large crack going through the windshield of that vehicle and that is why I stopped the vehicle.
"[STATE]: And can you describe that crack for us, please?
"[MCKAY]: The crack was going from--stretching from the passenger side across the windshield all the way to the driver's side of the vehicle.
"[STATE]: And what part of the windshield was it located, down near the wipers or up towards the ceiling of the cab?
"[MCKAY]: It was more up. It was more in the area to where it could have, I guess, impeded the vision of the driver. So it would have been kind of in the eyesight area.
"[STATE]: And was any portion of that a spiderweb crack?
"[MCKAY]: It was off to the passenger side, so off to the right of the driver there was some spiderwebbing.
"[STATE]: Okay. And then the line goes all the way across from the passenger side to the driver's side?
"[STATE]: And it's basically a level line all the way across maintaining at that somewhere in the eye level area the whole way across?
"[STATE]: Depending on the height of the driver, ...