Submitted December 6, 2018
County Circuit Court 15CR48044; Maurice K. Merten, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Laura E. Coffn, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Matthew Maile, Assistant Attorney General, fled
the brief for respondent.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
Summary: After a traffic stop, defendant was convicted of
driving while suspended, ORS 811.182(4). On appeal, he
challenges the trial court's denial of his pretrial
motion to suppress evidence obtained during the stop.
Defendant asserts that the officer lacked probable cause to
stop him for a traffic violation and therefore violated
Article 1, section 9, of the Oregon Constitution. The trial
court denied the motion to suppress on the basis that the
officer had probable cause to stop defendant for failure to
maintain a lane, ORS 811.370. On appeal, the state concedes
that, because the lane in which defendant was traveling was
not clearly marked, the trial court erred in denying
defendant's motion on that basis. However, the state
argues, as an alternative basis to affirm, that the officer
had probable cause to stop defendant for careless driving,
ORS 811.135. The state also made that argument to the trial
court, but the trial court did not reach it. Held:
The state's concession is well taken; the trial court
erred in denying defendant's motion to suppress on the
basis that the officer had probable cause to stop defendant
for failure to maintain a lane. As for the alternative basis
to affirm, whether the officer had probable cause to stop
defendant for careless driving is an [301 Or.App. 135] issue
that was raised but not resolved in the trial court, and
factual findings are necessary to decide the legal question.
Accordingly, the appropriate disposition is to remand to the
trial court to determine the potentially dispositive
questions of fact in the first instance.
Or.App. 136] AOYAGI, J.
appeals a judgment of conviction for driving while suspended,
ORS 811.182(4). He assigns error to the trial court's
denial of his pretrial motion to suppress evidence obtained
as a result of a traffic stop. Defendant asserts that the
officer who stopped him lacked probable cause to do so and
therefore violated defendant's right to be free from
unreasonable searches and seizures under Article 1, section
9, of the Oregon Constitution. For the reasons that follow,
we vacate and remand.
reviewing the denial of a motion to suppress, we are bound by
the trial court's findings of historical 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). That applies to both express and implied factual
findings. Ball v. Gladden, 250 Or. 485, 487, 443
P.2d 621 (1968) (if the trial court did not make findings on
all relevant historical facts, and the evidence allowed the
facts to be decided more than one way, "we will presume
that the facts were decided in a manner consistent with the
ultimate conclusion"). However, we will infer a finding
of fact "only where we can deduce that the trial
court's chain of reasoning must necessarily have included
that fact as one of its links." State v.
Lunacolorado, 238 Or.App. 691, 696, 243 P.3d 125 (2010).
We state the facts accordingly.
evening in question, defendant was driving a Subaru station
wagon northbound on Territorial Road. For reasons unclear
from the record, the Subaru caught the eye of Deputy
Dornbusch, who was driving southbound in his patrol car.
Dornbusch turned around, pulled in behind the Subaru, and
followed it. The Subaru activated its turn signal and turned
right onto Cottage Court, a smaller road that ends in a
the officer saw next is the subject of dispute. According to
Dornbusch's testimony at the suppression hearing, shortly
after turning onto Cottage Court, the Subaru "pulled to
its right, drifted to the right outside of its lane."
Dornbusch could see defendant looking at him in his rearview
mirror. The Subaru came within a foot of a vehicle legally
parked on the side of the road. The Subaru then [301 Or.App.
137] "[s]uddenly jerked back into its lane, continued
forward." The Subaru was going "[f]airly slow"
at the time, approximately 10 miles per hour, and it moved to
the right a total of six or seven feet. There was room to do
so because the road was "fairly wide." Defendant
might have used his turn signal when he pulled back to the
left. In his report, Dornbusch wrote that it "looked as
if the driver was going to park." Asked about that
statement at the suppression hearing, Dornbusch explained,
"He drifted as if he was-that was kind of the best way I
could think to describe it at the time. Drifted over as if he
was going to park, but there were cars parked in the spot
that would have been lawful to park in."
passenger, Tanner, also testified at the suppression hearing.
According to Tanner, defendant was driving about 5 to 10
miles per hour on Cottage Court. They were preparing to turn
around, because they had forgotten something, when Tanner
asked defendant what he was doing, and defendant responded
that he thought he was going to get pulled over. Defendant
was looking in the rearview mirror at the time. Tanner told
him, "You can't park here. * * * It's in front
of-you're blocking-you would be blocking somebody's
driveway." According to Tanner, defendant then quickly
adjusted, turned his steering wheel the opposite way, and
"hit his blinker" as he maneuvered around a van
parked just beyond the edge of the driveway. Defendant got
somewhat close to the van in the process, because he was
planning to park right behind it, but, in Tanner's
estimation, it "wasn't that close"-she
estimated four or five feet.
as defendant pulled back to the left, Dornbusch activated his
lights for a traffic stop. At the time, Dornbusch believed
that he had probable cause to stop defendant for failure to
maintain a lane, because the Subaru was "well outside of
its lane" and "[t]here was plenty of room to drive
within the center of the lane and to the left, closer to the
dividing line in the roadway." Dornbusch believed that
he also had probable cause to stop defendant for careless
driving, "[b]ecause the driver was obviously looking up
in his rearview mirror and not at the roadway, which caused
him to drift off the side and come within a foot of striking
this parked car that could have caused property damage."
[301 Or.App. 138] During the stop, Dornbusch learned that
defendant's license was suspended.
was charged with driving while suspended. Before trial,
defendant moved to suppress the evidence obtained during the
traffic stop. Defendant argued that Dornbusch lacked probable
cause to stop him for failure to maintain a lane, because,
among other things, there was no right-side lane marking, and
that Dornbusch lacked probable cause to stop him for careless
driving, because defendant's aborted attempt to park did