433 P.3d 745
Or. Ct. App.2018Background
- Officers observed defendant driving while holding a cell phone with a lit screen; one officer saw him "pushing something on the screen."
- When defendant noticed a police vehicle beside him, he immediately put the phone down.
- Officers stopped defendant, smelled alcohol, and asked about drinking; defendant said he had three beers.
- Defendant consented to field sobriety tests, performed poorly, was arrested for DUII, and later registered above .08 on a breath test.
- Defendant moved to suppress evidence from the stop, arguing officers lacked probable cause to believe he had committed a traffic infraction (violating ORS 811.507 as then written).
- Trial court denied suppression; majority on appeal affirmed, dissent would reverse for lack of objective probable cause.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers had objectively reasonable probable cause to stop defendant for using a mobile communication device in violation of ORS 811.507 (2013) | Officer observed defendant pushing the phone screen while driving, which reasonably inferred use for voice/text communication; combined with defendant putting the phone down, gave probable cause | Mere looking at or pressing a phone screen does not more likely than not indicate voice/text communication; many lawful/non-communicative uses exist, so stop lacked probable cause | Affirmed: officers had objectively reasonable probable cause to stop defendant based on seeing him press the screen and his immediate concealment of the phone |
Key Cases Cited
- State v. Carson, 287 Or. App. 631 (legal standard for reviewing suppression denial) (appellate review of suppression rulings)
- State v. Matthews, 320 Or. 398 (probable cause requires subjective belief and objective reasonableness)
- State v. Keller, 280 Or. App. 249 (consider totality of circumstances and reasonable inferences for objective reasonableness)
- State v. Stookey, 255 Or. App. 489 (facts as perceived by officer must actually constitute a violation)
- State v. Rabanales-Ramos, 273 Or. App. 228 (observing a lit screen alone insufficient for probable cause to believe phone was used for voice/text)
- State v. Scarborough, 103 Or. App. 231 (furtive movements may support probable cause when paired with other incriminating observations)
- State v. Jacobs, 187 Or. App. 330 (furtive but lawful conduct does not alone establish objective probable cause)
- State v. Williams, 178 Or. App. 52 (Article I, §9 probable cause standard: more likely than not and objectively reasonable)