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State v. Rosling

Court of Appeals of Oregon

October 18, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DRAKE M. ROSLING, Defendant-Appellant.

          Argued and Submitted April 4, 2017

         Marion County Circuit Court 15CR47066 Tracy A. Prall, Judge.

          Jason E. Thompson argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson LLP.

          Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Hadlock, Chief Judge, and Aoyagi, Judge, and Schuman, Senior Judge. [*]

         [288 Or.App. 358] Case Summary:

         Defendant appeals his judgment of conviction for driving under the influence of intoxicants, ORS 813.010, on the ground that the trial court improperly denied his motion to suppress. While driving behind defendant, a police officer observed defendant's vehicle touch the left lane line, then move across the lane and cross the right fog line for approximately 20 to 30 feet. The officer stopped defendant for violating ORS 811.370(1)(a), which requires drivers to operate a vehicle "as nearly as practicable entirely within a single lane." The traffic stop led to the discovery of evidence that defendant was driving under the influence of intoxicants. Defendant moved to suppress that evidence on the ground that the officer lacked probable cause for the stop because it is not a violation of ORS 811.370(1)(a) to drive briefly outside a lane and that the officer therefore lacked probable cause to stop him. Held: Under the particular circumstances of this case, the officer had probable cause to stop defendant for violating ORS 811.370(1)(a). Accordingly, the trial court properly denied defendant's motion to suppress.

         Affirmed.

         [288 Or.App. 359] AOYAGI, J.

         This appeal arises from the denial of a motion to suppress evidence. While driving behind defendant, a police officer observed defendant's vehicle touch the left lane line, then move across the lane and cross the right fog line for approximately 20 to 30 feet. The officer stopped defendant for violating ORS 811.370(1)(a), which requires drivers to operate a vehicle "as nearly as practicable entirely within a single lane." The traffic stop led to the discovery of evidence that defendant was driving under the influence of intoxicants (DUII). Defendant moved to suppress that evidence on the ground that the officer lacked probable cause for the stop. The trial court denied the motion, and defendant ultimately was convicted of DUII, ORS 813.010. Defendant appeals the judgment of conviction, assigning error to the denial of his motion to suppress. We conclude that, on the facts of this case, the officer had probable cause to stop defendant for violating ORS 811.370. Accordingly, we affirm.

         We are bound by the trial court's findings of fact so long as those facts are supported by the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). When the record is silent as to how the court resolved a factual dispute, we presume that it found the facts consistently with the judgment it entered. Id. We state the facts in accordance with our standard of review.

         Shortly after midnight on a Friday night, while en route to another call, Kelly, an officer of the Keizer Police Department, saw a blue Hummer pull out of a bar parking lot and drive in a manner that concerned him. Kelly radioed another officer, Powell, and suggested that Powell watch for the vehicle. Powell soon located the vehicle and began to follow it. The vehicle was traveling northbound in the farthest right lane of a multi-lane road.

         As Powell followed the vehicle, he observed that it was drifting back and forth within its lane. It was a large vehicle-about nine to ten inches wider than "a typical commuter car"-but there was room for the vehicle to stay in its lane and even drift. After a time, the road began to curve to the right, and the vehicle's left tires briefly contacted the [288 Or.App. 360] left lane line, which was a broken line separating two northbound lanes of traffic. The vehicle then moved right until its right tires crossed over the fog line (a solid white line) into the bike lane for approximately 20 to 30 feet. The vehicle then pulled back into its lane and stopped at a traffic light. When the light turned green, the vehicle proceeded through the intersection and activated its right turn signal as it approached a convenience store on the corner.[1] At that point, Powell stopped defendant for failing to drive within a single lane in violation of ORS 811.370. In the course of the stop, Powell obtained evidence that defendant was intoxicated and arrested him for DUII.

         Before trial, defendant filed a motion to suppress the evidence obtained during the stop. Defendant argued that it is not a violation of ORS 811.370 to drive briefly outside a lane and that the officer therefore lacked probable cause to stop him. The trial court denied the motion, ruling that the officer had probable cause to stop defendant for violating ORS 811.370. Defendant entered a conditional guilty plea, preserving for appeal the suppression issue. See ORS 135.335(3).

         Under Article I, section 9, of the Oregon Constitution, before a police officer may stop a citizen for a traffic violation, the officer must have probable cause to believe that a violation occurred. State v. Gordon. 273 Or.App. 495, 500, 359 P.3d 499 (2015), rev den,358 Or. 529 (2016). An officer has probable cause when two conditions are met. First, the officer must subjectively believe that an offense occurred. State v. Boatright. 222 Or.App. 406, 409, 193 P.3d 78, rev den,345 Or. 503 (2008). Second, the officer's subjective belief must be objectively reasonable; that is, the facts as the officer perceived them must satisfy the elements of an offense. Id. at 410. Whether the ...


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