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State v. Semore

Court of Appeals of Oregon

June 26, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JUSTIN SHANE SEMORE, Defendant-Appellant.

          Submitted September 13, 2018

          Washington County Circuit Court 16CR44747, D15420M. Theodore E. Sims, Judge.

          Ernest 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.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Sharia Mayfield, Assistant Attorney General, filed the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

         Case 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.

         Reversed and remanded.

         [298 Or.App. 342] POWERS, J.

         In this 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.

         We 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 standards.

         As part 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.

         At 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.

         As 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 ...

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