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State v. Derby

Court of Appeals of Oregon

December 4, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
MILO DELFORD DERBY, JR., Defendant-Appellant.

          Submitted December 6, 2018

          Lane County Circuit Court 15CR48044; Maurice K. Merten, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura E. Coffn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Matthew Maile, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case 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.

          [301 Or.App. 136] AOYAGI, J.

         Defendant 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.

         In 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.

         On the 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 cul-de-sac.

         What 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."

         Defendant's 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 soon 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.

         Defendant 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 not ...


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