Submitted September 13, 2018
Washington County Circuit Court 16CR44747, D15420M. Theodore
E. Sims, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Erin J. Snyder Severe, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Sharia Mayfield, Assistant Attorney General,
filed the brief for respondent.
Ortega, Presiding Judge, and Egan, Chief Judge, and Powers,
Summary: In this consolidated criminal appeal, defendant
seeks reversal of a judgment of conviction for driving while
suspended, ORS 811.182, and a judgment finding him in
violation of his probation based on the new conviction.
Defendant assigns error to the trial court's denial of
his motion to suppress evidence of his suspended license,
arguing that the circumstances were insufficient to establish
that the deputy had reasonable suspicion to believe that
defendant had committed or was about to commit theft or
offensive littering. Held: The trial court erred in
denying defendant's motion to suppress, because the facts
articulated by the deputy do not establish reasonable
suspicion that defendant had committed or was about to commit
theft or offensive littering.
Or.App. 342] POWERS, J.
consolidated criminal appeal, defendant seeks reversal of his
conviction for driving while suspended, ORS 811.182, and the
imposition of a $100 traffic fine under ORS 137.286(1). As a
result of the conviction, the trial court also found
defendant in violation of the terms of his probation relating
to an unrelated, prior conviction. Consequently, defendant
also seeks reversal of the judgment of the probation
violation. On appeal, defendant advances two assignments of
error: (1) the trial court erred in denying the motion to
suppress evidence of his suspended license; and (2) the trial
court erred in applying ORS 137.286(1) by imposing a $100
traffic fine in addition to a $1, 000 conviction fee. The
state argues that the trial court did not err in denying
defendant's motion to suppress but concedes that the
trial court erred in imposing a $100 fine. As explained
below, we agree with defendant that the facts articulated by
the deputy do not establish reasonable suspicion that
defendant had committed or was about to commit a crime. Thus,
the trial court erred in denying defendant's motion to
suppress. Given our disposition of defendant's first
assignment of error, we need not address defendant's
second assignment of error. Accordingly, we reverse and
remand to the trial court both the judgment of conviction and
the judgment finding defendant in violation of his probation.
review the denial of defendant's motion to suppress
evidence for legal error and, in so doing, we are "bound
by the trial court's findings of fact if they are
supported by the record." State v. Baker, 350
Or. 641, 650, 260 P.3d 476 (2011). If the trial court did not
make explicit findings on facts that could be decided more
than one way based on the evidence in the record, then we
will infer that the court found those facts consistent with
the trial court's ultimate conclusion. Ball v.
Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). We
describe the facts in a manner consistent with those
of his routine during a shift, Deputy Prince of the
Washington County Sheriffs Office drives by a Goodwill
donation trailer located in a secluded, back area of a church
parking lot because there have been problems with [298
Or.App. 343] theft and illegal dumping in the past. Signs
posted near the donation trailer indicate that it is unlawful
to drop off items after hours. The church is located in a
residential neighborhood and there are no other businesses
nearby. Prince testified that, if he sees someone near the
trailer, he contacts them. He testified that he regularly
finds items that have been illegally dumped or taken from the
site, and that he has caught approximately five or six people
for theft or illegal dumping in the past six years.
approximately 12:40 a.m. on the night defendant was stopped,
Prince contacted an unrelated individual that had dumped some
baggage at the trailer after hours. Prince gave that
individual a warning and told him to leave. Within minutes
after Prince left the parking lot, he remembered that
individuals in the past had cut the lock on the trailer
during theft attempts, so he decided to turn around to make
sure that the trailer lock was not cut.
Prince drove back to the church, he saw a vehicle in the
parking lot about 10 to 15 feet away from the donation
trailer with its headlights on facing the trailer. Prince
quickly turned into the parking lot and pulled up right
behind the vehicle. As he approached, he saw defendant,
empty-handed, "moving in a hurried fashion" from
the fence line behind the trailer toward the vehicle.
Defendant then got in the driver's seat and sat down.
Prince activated his overhead lights because "it looked
like he was trying to leave." Prince suspected that the
crime of offensive littering or theft had occurred. According
to Prince, he believed that he had reasonable suspicion:
"I've dealt with thefts before at that trailer.
It's clearly posted that you cannot-that you can't
dump anything there overnight. I'm sorry, the thefts and
the dumping that I've dealt with before, the posting on
the trailer there, the fact that [defendant] was there, and
nobody is ever there in that ...