Submitted October 28, 2014.
120950864. Multnomah County Circuit Court. Alicia A. Fuchs, Judge.
Peter Gartlan, Chief Defender, and Elizabeth Daily, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Senior Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[271 Or.App. 482] DEVORE, J.
In this criminal case, defendant appeals a judgment of conviction for misdemeanor driving while suspended, ORS 811.182. He assigns error to the denial of his motion to suppress and the denial of his motion for judgment of acquittal on the question of venue. Defendant argues that the evidence of his suspended license was discovered only after he was unlawfully stopped. Because we conclude that the trial court explicitly failed to resolve disputed facts that are essential to determining whether the court erred by denying defendant's suppression motion, we vacate and remand. As to venue, the state concedes error to the extent that it urges that we remand to allow defendant to contest venue consistent with State v. Mills, 354 Or. 350, 312 P.3d 515 (2013). To that extent, we agree.
In reviewing a trial court's denial of a motion to suppress, we are bound by the trial court's findings of historical fact if supported by evidence in the record. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005). In the absence of express findings, we ordinarily presume that the trial court resolved factual disputes consistently with its ultimate decision. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). In this case, however, the trial court explicitly did not resolve disputed facts of defendant's interaction with the police. Instead, it assumed defendant's version arguendo and decided that no stop occurred and thus, that there was no constitutional violation.
On September 3, 2012, Portland Police Officers Macho and Kerwin were patrolling the east precinct of Multnomah County in uniform and driving an unmarked police vehicle. They passed defendant, who was driving the opposite direction, and turned around to follow him because he looked nervous. Macho testified that he observed defendant commit a traffic violation when his car briefly left its lane of travel and entered the oncoming-traffic
lane. Kerwin did not see the violation. Defendant turned into a gas station, parked next to the gas pump, and got out of his vehicle, heading toward the station's building entrance. The officers pulled in behind defendant, but did not block defendant's vehicle or activate their lights.
[271 Or.App. 483] The officers' testimony regarding the encounter differed from defendant's testimony in significant ways. Kerwin testified that she approached defendant and said, " Hey, can I talk to you for a second?" Defendant replied, " Sure, what's up?" and walked back toward her. Macho testified that they " chatted" with defendant for awhile, and he told defendant " he was not legally stopped, that we just needed to--we just wanted to talk to him" and defendant responded that he understood. Both officers testified that they did not mention the traffic violation, tell defendant he was not free to leave, or state that they were investigating criminal activity. Eventually, the officers asked defendant for his identification, which he did not have. Instead, he provided his name and date of birth. While Macho continued speaking with defendant, Kerwin checked his information on the police database and discovered that defendant's driver's license was " misdemeanor suspended." The officers placed defendant under arrest. In his report, Macho did not mention the traffic violation that he had observed. However, he testified that, if defendant had not consented to speak with them, he would have stopped him for the traffic violation.
Defendant testified that he had noticed the officers following him prior to turning into the gas station. Defendant recalled that, after he got out of his car and started walking toward the gas station building, Kerwin said, " Hey, you, stop."  Defendant replied, " Did I do something wrong?" and Kerwin responded, " Yes, you can't turn like that." Defendant testified that he waited because he believed he was being investigated. Kerwin then asked defendant for his license and insurance. Defendant testified that the officers never actually told him that they had stopped him for a traffic violation or that they were going to write him a ticket, but also that they never told him he was free to go. When asked if he was aware that Kerwin was verifying his identification, defendant testified, " Yeah, because they said they were just ...