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State v. Gattenby

Court of Appeals of Oregon

December 11, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
EVERETT JEREMY GATTENBY, Defendant-Appellant.

          Argued and submitted August 16, 2019.

          Marion County Circuit Court 17CR35313 Susan M. Tripp, Judge.

          Anna Belais, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

          Paul L. Smith, Deputy Solicitor General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for driving under the influence of intoxicants and refusal to take a test for intoxicants. Defendant appeals following his conditional guilty plea. Defendant assigns error to the trial court's denial of his pretrial motion to suppress evidence resulting from a traffic stop. Defendant asserts that, because the officer did not have reasonable suspicion that defendant had committed a crime, the stop was unlawful under Article I, section 9, of the Oregon Constitution.

         Held:

         The trial court erred in denying defendant's motion to suppress because the facts known to the officer at the time of the stop were insufficient to support a reasonable suspicion that defendant had committed a crime.

         Reversed and remanded.

         [301 Or.App. 230] SHORR, J.

         Defendant appeals from a judgment of conviction for driving under the influence of intoxicants, ORS 813.010, and refusal to take a test for intoxicants, ORS 813.095. Defendant assigns error to the trial court's denial of his pretrial motion to suppress evidence resulting from a traffic stop. We conclude that the court's ruling was erroneous because the stop from which the state obtained the evidence was not based on a reasonable suspicion that defendant had committed a crime. Accordingly, we reverse and remand.

         We accept the trial court's factual findings that are supported by evidence in the record. State v. Vasquez-Villagomez, 346 Or. 12, 23, 203 P.3d 193 (2009). Further, "[i]n the absence of express factual findings, we presume that the trial court decided the disputed facts in keeping with its ultimate conclusion." State v. Garcia, 276 Or.App. 838, 839, 370 P.3d 512 (2016). The following facts are stated consistently with that standard.

         Late at night on January 28, 2017, Officer Jason Conwell received a dispatch from the Salem Police Department telling him that a named 9-1-1 caller reported that there was a woman "screaming and saying she was choked out" and that there was a man walking away from a crowd gathering around the woman. The caller had not "seen anything physical," and he did not know the woman or the man. But the caller reported that the man was driving south on Commercial Street in a red Ford car, and he reported the car's license plate number. Conwell looked up the car's information to discover its registered owners, one of which was defendant. Soon after, defendant drove by Conwell in a red Ford car matching the caller's description. After confirming that the license plate number matched as well, Conwell pulled defendant over. Based on evidence ...


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