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State v. Pham

Court of Appeals of Oregon

December 12, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
NGUYEN NGOC PHAM, aka Nguyen N. Pham, Defendant-Appellant.

          Argued and Submitted November 30, 2017

          Multnomah County Circuit Court 15CR47888; Kelly Skye, Judge.

          Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for driving under the influence of intoxicants, assigning error to the trial court's denial of his motion to suppress evidence that the police obtained as a result of stopping defendant for using a mobile communication device while operating a motor vehicle in violation of ORS 811.507(2) (2013) amended by Or Laws 2018, ch 32, §1. Defendant argues that the stop was unlawful because the officers lacked probable cause to believe that defendant had used his phone as a mobile communication device. The state argues that the officers had probable cause because they saw a phone in defendant's hand, they witnessed defendant "pushing something on the screen," and defendant immediately put his phone down after he realized that police officers were driving in a car next to his. Held: The officers' subjective [295 Or.App. 323] belief that defendant had violated ORS 811.507(2) was objectively reasonable based on their observations.

         Affirmed.

         [295 Or.App. 324] ARMSTRONG, P.J.

         Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), assigning error to the trial court's denial of his motion to suppress evidence that the police obtained as a result of stopping defendant for a traffic infraction. According to defendant, the stop was unlawful because the officers lacked probable cause to believe that defendant had committed an infraction. We conclude that the stop was supported by probable cause and affirm.

         The following facts are not disputed. Police officers encountered defendant as he drove his car while holding a cell phone in his hand. One of the officers "saw the screen was lit up * * * and * * * could see [defendant] pushing something on the screen." However, the officer could not identify the specific action that defendant was performing on his phone. When defendant looked up and saw that the vehicle next to him was a police car, he immediately put his cell phone down.

         The officers stopped defendant. When they approached defendant's car, they smelled an odor of alcohol coming from the car and asked defendant how much he had had to drink that night. Defendant replied that he had had three beers. The officers asked and defendant consented to perform field-sobriety tests. Defendant showed signs of intoxication in all of the tests, which led the officers to arrest defendant for DUII. Defendant subsequently submitted to a breathalyzer test that determined that defendant's blood-alcohol level exceeded the 0.08 limit specified in ORS 813.300.

         Before trial, defendant moved to suppress all evidence obtained from the traffic stop, arguing that the stop was unlawful because the officers had not had probable cause to believe that defendant had committed a traffic infraction before they stopped him. Defendant contended that the officers lacked probable cause to believe that he was "using" a cell phone in violation of state law because the law prohibited only the act of using a cell phone as a communication device, and the officers had an insufficient basis on which to believe that defendant was using his cell [295 Or.App. 325] phone to communicate with anyone. The trial court denied defendant's motion, concluding that "the fact that [the officer] indicated [] defendant was pushing on the screen of the cell phone [was] enough to be probable cause that [defendant was] using it, either dialing or texting."

         On appeal, defendant reprises his argument, challenging the trial court's denial of his suppression motion. We review a trial court's denial of a suppression motion for legal error. St ...


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