Argued and Submitted May 30, 2014
Washington County Circuit Court. D121315M. Andrew Erwin, Judge.
Doug M. Petrina, Senior 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.
Josh Crowther, Chief Deputy Defender, Office of Public Defense Services, argued the cause for respondent. On the brief were Thomas Ifversen and Ifversen Law Group P.C.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge. Armstrong, P. J., dissenting.
[269 Or.App. 504] NAKAMOTO, J.
The trial court suppressed the evidence of defendant's intoxication, which a deputy sheriff had discovered during a stop of defendant's truck, and then dismissed the case. Pursuant to ORS 138.060(1)(c), the state appeals the order suppressing evidence and, pursuant to ORS 138.060(1)(a), it appeals the dismissal. The appeal turns on whether the trial court correctly concluded that the deputy lacked reasonable suspicion that defendant had thrown a cigarette out of his window and thereby committed the crime of throwing lighted material, ORS 476.715. We affirm.
The facts presented at the suppression hearing are spare and undisputed. The state presented the testimony of Washington County Deputy Sheriff Wilson. Wilson had been a full-time police officer since 2004, a reserve deputy before that, and used to work as a commercial truck driver and inspector. On March 17, 2012, at approximately 11:30 p.m., Wilson and Deputy Greene were responding to a " hit and run" investigation. They were driving in separate patrol cars southbound on S.W. Oleson Road, south of Beaverton-Hillsdale Highway, through some curves, with Wilson following Greene's car. In front of Greene was defendant's truck. The three vehicles were within approximately 50 feet of one another. It was dark, but the roadway was lit by streetlights, and the pavement was dry. There was no vehicle in front of defendant's truck at the time; however, Wilson was unable to confirm the absence of vehicles on the road other than defendant's truck and the patrol cars, such as vehicles coming fro the opposite direction. Wilson then observed a " burst of orange embers" emerge from under the rear, driver's side of Greene's car near the tire. Wilson could not tell whether Greene had run over the material, nor could Wilson tell whether the material had hit the ground and was tumbling. He did not see anything come out of defendant's window. Wilson had stopped others for throwing cigarettes [269 Or.App. 505] out of their vehicle windows and testified that what he saw was
" very similar to somebody discarding a cigarette out their window and it hitting the ground." Wilson concluded that what he observed was not consistent with sparks from a dragging chain, and he instead believed that defendant had thrown a lit cigarette out of his window.
Wilson then stopped defendant's truck and observed signs that defendant was intoxicated. Wilson proceeded to conduct an investigation for driving under the influence of intoxicants (DUII). After defendant failed field sobriety tests, Wilson arrested him for DUII, ORS 813.010, and for throwing lighted material on a public highway, ORS 476.715, both misdemeanors.
Defendant moved to suppress the evidence of his intoxication, arguing that Wilson lacked reasonable suspicion to stop him. The trial court made the following findings regarding the reasonableness of Wilson's belief that defendant had thrown a lit cigarette from his truck:
" All I have based upon [the] throwing of the cigarette is that he was following, he was rushing to an investigation of a hit and run, that they are following the defendant's car, he is the second vehicle behind and only is able to see whatever happened after the ...