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State v. Lawson

Court of Appeals of Oregon

October 30, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
MARK ELWYN LAWSON, Defendant-Appellant.

          Argued and submitted February 13, 2019

          Washington County Circuit Court 16CR68630; Beth L. Roberts, Judge.

          Sara F. Werboff, 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.

          Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals a judgment of conviction for possession of methamphetamine, ORS 475.894, and driving under the infuence of intoxicants, ORS 813.010, assigning error to the trial court's denial of his motion to suppress evidence obtained during a traffc stop. Defendant argues that the court incorrectly concluded that the offcer had probable cause to stop him by interpreting ORS 815.235 to require that his vehicle be equipped with a windshield-mounted rearview mirror. He argues that side mirrors alone satisfy ORS 815.235's requirements. The state agrees that ORS 815.235 does not specif-cally require a windshield-mounted mirror but argues that there was probable cause because, in the offcer's experience, side mirrors alone do not satisfy ORS 815.235's requirements. Alternatively, the state argues that there was probable cause to stop defendant for attempting to elude, ORS 811.540. Held: Probable cause did not exist to stop defendant for violating ORS 815.235 because, frst, ORS 815.235 does not require a windshield-mounted mirror and, second, the trial court rejected the offcer's testimony about his experience with side mirrors.

         [300 Or.App. 293] The case must be remanded to address the state's alternate argument because the trial court must make additional factual fndings in the frst instance.

          [300 Or.App. 294] DeVORE, J.

         Defendant appeals from a judgment of conviction for possession of methamphetamine and driving under the influence of intoxicants. Defendant assigns error, among other rulings, to the trial court's denial of his motion to suppress evidence obtained during a traffic stop. Defendant argues that his vehicle's lack of a mirror mounted on his windshield did not give an officer probable cause to believe that he violated the rearview mirror requirement of ORS 815.235, when he had mirrors mounted on the sides of his vehicle.[1] Without defending the trial court's rationale, the state responds with two alternative justifications for the traffic stop that it had asserted below. The state argues that the officer had probable cause for a stop (a) because the officer testified that defendant's side mirrors were not sufficient to comply with the statute, and, in the alternative, (b) because the officer could have reasonably believed that defendant had attempted to elude him in violation of ORS 811.540.[2]

         We agree with defendant that the officer lacked probable cause to stop him for a violation of the rearview mirror requirement of ORS 815.235 on the basis of concern about windshield or side mirrors. Because, however, the [300 Or.App. 295] trial court did not reach the factual issues on the state's last justification for the stop, we vacate and remand for the trial court to determine whether the officer had probable cause to believe that defendant attempted to elude. Because we vacate the judgment, we do not reach defendant's challenges to an award and the amount of defendant's attorney fees in that judgment. If further proceedings result in entry of a new judgment, then the court will consider defendant's ability to pay and the correct sum to be paid.[3]

         We review the trial court's denial of defendant's motion to suppress for legal error, and we are bound by the court's express and implicit findings of fact, if there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993).

         Early one morning, Deputy Gerba observed defendant driving an older Mitsubishi pickup truck. Gerba noticed that, although the vehicle had side mirrors, it lacked a windshield-mounted rearview mirror like most newer vehicles have. Believing that defendant's pickup violated the rearview mirror requirement, Gerba initiated a traffic stop by turning on his overhead lights. Defendant did not immediately respond to the lights. Gerba activated his car's siren. Defendant waved to Gerba and continued to drive for two to three minutes.

         Gerba radioed for backup, suspecting that defendant "might be trying to elude." Gerba followed as defendant took an exit off of the highway. Defendant turned into a parking lot and drove over a curb to park his vehicle in a parking space. Gerba followed, parked, and approached defendant. He asked defendant why he had not stopped. Defendant said that his license had been suspended and [300 Or.App. 296] that he did not have insurance. Backup Deputy Gilderson arrived and observed that defendant appeared to be under the influence of methamphetamine. Gilderson administered several field sobriety tests, all of which defendant failed. The deputies placed defendant under arrest and found two bags of methamphetamine on his person.

         Defendant was charged with possession of methamphetamine, ORS 475.894, and driving under the influence of intoxicants, ORS 813.010. He filed a motion to suppress all evidence from the traffic stop, arguing that, given the presence of side mirrors, the absence of a windshield-mounted mirror did not give Gerba probable cause to believe that he had violated ORS 815.235. He argued that ORS 815.235 does not specifically require a windshield-mounted mirror. Defendant pointed out that another statute, ORS 815.221, specifically refers to side mirrors with the term "rearview mirror." The state rejoined that "common understanding" is that the term "rearview mirror" refers specifically to a traditional windshield-mounted mirror.[4] In addition, the state argued that, in the alternative, the circumstances would have permitted the officer to have stopped defendant for eluding the officer.

         The trial court did not reach the added argument because the court agreed with the state about the need for a mirror on the windshield. The court conceded that ORS 815.235, which requires a rearview mirror, does not specify where the rearview mirror must be located. But the court allowed that "[c]ommon understanding in the vernacular [is that] the rear-view mirror is the one in the center inside the vehicle *** above the windshield or *** in the windshield." The court acknowledged that, "depending upon how you set your [side] mirrors, you can or cannot" see behind the vehicle for the statutorily required distance. That said, the court determined that Gerba had probable cause to stop defendant, whose pickup lacked a windshield-mounted mirror, for violating ORS 815.235. The court denied defendant's suppression motion. Thereafter, defendant was convicted of possession of methamphetamine and driving under the influence of intoxicants.

          [300 Or.App. 297] On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence obtained during the traffic stop, contending that Gerba lacked probable cause to stop him for violating ORS 815.235. Defendant repeats his challenge to the trial court's focus on the need for a mirror mounted on the windshield, while the state urges alternative arguments that probable cause could be found in the inadequacy of side-mounted mirrors or in defendant's eluding the deputy.

         In order to stop a person for a traffic violation lawfully, a police officer must have probable cause to believe that a person has committed a violation. ORS 8lO.4lO(3)(b); State v. Matthews,320 Or. 398, 402, 884 P.2d 1224 (1994). To have probable cause, an officer must subjectively believe that a violation has occurred, and that belief must be objectively reasonable under the circumstances. State v. Stookey,255 Or.App. 489, 491, 297 P.3d 548 (2013). In order for an officer's belief to be considered objectively reasonable, the ...


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