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State v. Balabon

Court of Appeals of Oregon

July 18, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
CANDI LEE BALABON, Defendant-Appellant.

          Argued and submitted December 21, 2016

          Multnomah County Circuit Court 130532463; Stephen K. Bushong, Judge.

          Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Michael A. Casper, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General.

          Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge. [*]

         [292 Or. 871] Case Summary:

         Defendant appeals a judgment of conviction for delivery and possession of methamphetamine, assigning error to the trial court's denial of her motion to suppress evidence that police officers obtained from an inventory of her impounded vehicle. On appeal, defendant argues that the officers unlawfully impounded her vehicle under ORS 809.720 because they did not have probable cause to believe that she was driving without insurance and, therefore, the resulting inventory search was invalid. The state contends that the officers had probable cause to believe that defendant was driving uninsured; alternatively, the state argues that, even if the officers did not have probable cause, the Portland Police Policy and Procedure Manual authorizes impoundment when a driver has been cited for driving uninsured or if a vehicle is impeding traffic. Held: The trial court erred by denying defendant's motion to suppress. The state cannot ground an administrative seizure on a policy that requires the towing of a vehicle when the driver is merely cited for driving uninsured unless that citation is based on probable cause. Any lesser standard would contradict both ORS 809.720 and Article I, section 9, of the Oregon Constitution. Because the officers did not have objective probable cause to believe that defendant was driving uninsured, they could not lawfully seize defendant's vehicle. Accordingly, the resulting inventory of its contents violated Article I, section 9.

         Reversed and remanded.

          [292 Or. 872] JAMES, J.

         Defendant appeals a judgment of conviction for delivery and possession of methamphetamine, assigning error to the trial court's denial of her motion to suppress evidence that police officers obtained from an inventory of her impounded vehicle. Defendant argues that the officers unlawfully impounded her vehicle under ORS 809.720, because they did not have probable cause to believe that she was driving without insurance and, therefore, the resulting inventory search was invalid. We agree, and, accordingly, reverse.

         On review, we are bound by the trial court's factual findings if there is evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We review the trial court's legal conclusions as to the lawfulness of an inventory for legal error. State v. Bean, 150 Or.App. 223, 225, 946 P.2d 292 (1997), rev den, 327 Or. 448 (1998).

         Late one evening, two Portland Police Officers, Officer Britt and Officer Mawdsley, were monitoring an auto body shop in Portland from their unmarked car because they suspected that the shop was involved in drug activity. Shortly after midnight, the officers saw defendant leave the shop's driveway in a 2004 Mazda RX8. Defendant committed a traffic infraction before entering Powell Boulevard. The officers followed her for nine blocks while verifying the vehicle registration and license plate information. When the officers pulled her over, defendant stopped in the right westbound lane of Powell Boulevard, blocking the lane.

         Britt approached the driver's side of the vehicle, while Mawdsley approached the passenger's side. Britt asked defendant if she had a valid driver's license and she said, "Yes" and began looking through her wallet. He also asked her if she had valid insurance and she responded, "I do." She handed Britt a valid driver's license and a card that included a toll-free number for Nationwide Insurance, an account number, and her name, but no indication of a time period for insurance coverage nor a reference to any vehicle insured. The officers verified that there were no outstanding warrants and that her license was valid.

         Britt explained to defendant that the card was not valid proof of insurance under Oregon law, because it did [292 Or. 873] not include the vehicle information and the dates of coverage. He asked if he could search her vehicle and defendant refused. As she continued to look through her purse, she handed Britt a State Farm Insurance card that identified a different vehicle, a 1995 Honda Civic, which appeared to indicate coverage in effect at that time as well as a State Farm Insurance card for a 1991 Mazda, which indicated coverage no longer in effect. She said she had just switched insurance companies. ...


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