State v. Ankeny ( 2020 )

300
Argued and submitted December 19, 2018, reversed and remanded
September 2, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
KELLY DAVID ANKENY, JR.,
Defendant-Appellant.
Multnomah County Circuit Court
130431551, 15CR42153;
A164630 (Control), A164631
474 P3d 406
Defendant appeals the judgments revoking his probation in two cases. In
both cases, defendant contends that the trial court erred by denying his motion
to suppress evidence obtained during a traffic stop for improper display of a per-
mit, ORS 803.655. Defendant argues that the officer’s probable cause for the stop
dissipated because the officer was able to read the permit in defendant’s car when
the officer, after stopping defendant’s car, approached defendant’s car on foot.
Held: The trial court erred. Once the officer approached defendant’s car and was
able to read and inspect the permit, it was not objectively reasonable to believe
that defendant was in violation of ORS 803.655, because the facts as the offi-
cer perceived them demonstrated that defendant was in compliance with OAR
735-032-0030(2).
Reversed and remanded.
Judith H. Matarazzo, Judge.
Erin J. Snyder Severe, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
TOOKEY, J.
Reversed and remanded.
Cite as 306 Or App 300 (2020) 301
TOOKEY, J.
In this consolidated appeal, defendant appeals the
judgments revoking his probation in two cases, 15CR42153
and 130431551. In both cases, defendant contends that the
trial court erred in denying his motion to suppress evidence
obtained during a traffic stop for improper display of a per-
mit, ORS 803.655. We conclude that the officer’s probable
cause in this case dissipated prior to the officer obtaining
the evidence that defendant sought to suppress. Therefore,
we conclude that the trial court erred in denying the motion
to suppress. We reverse and remand.
“We review the denial of a motion to suppress for
errors of law.” State v. Brown, 293 Or App 772, 774, 427 P3d
221 (2018). “We are bound by the trial court’s express and
implicit factual findings so long as they are supported by
the record.” Id. We state the facts in accordance with our
standard of review.
While on patrol, a police officer saw a car that had
a temporary permit mounted in the left corner of the rear
window. Due to the angle of the rear window, the permit
could not be read by a car following behind it. The officer
followed the car for approximately three-quarters of a mile
in an attempt to read the temporary permit and during that
time was unable to read the permit at all.
The officer then stopped the car for what the officer
characterized as “improper display of the temp tag.” After
stopping the car, the officer approached the car on foot and
while doing so was able to read the temporary permit that
was in the rear window. The officer then walked to the car’s
window, told the driver—defendant in this case—why the
officer had stopped him, and asked defendant for his driver’s
license. Defendant responded that he did not have a driver’s
license and that he was not supposed to be driving.1
Defendant’s driver’s license was, in fact, revoked,
and because he was driving, the state alleged that defen-
dant had violated his probation in two cases, 15CR42153
1
We note that there was a second officer present during the traffic stop. The
second officer did not testify in the trial court, however, and her presence at the
traffic stop was not relevant to the trial court’s analysis nor is it relevant to ours.
302 State v. Ankeny
and 130431551. At a subsequent probation violation hearing
for both cases, defendant moved to suppress evidence that
was obtained as a result of the stop.
At the hearing, the state argued that the stop was
lawful because the temporary permit defendant displayed
was not “readable.” Defendant argued that no probable
cause existed for the stop because the temporary permit
was “visible” and that, in any event, prior to even contacting
the defendant—i.e., when the officer approached defendant’s
car—it became clear to the officer that the permit was not
“somehow invalid or expired.”
The trial court denied defendant’s motion to sup-
press, finding that the rear window of defendant’s vehicle
was “slanted” and that it was more likely than not the offi-
cer “couldn’t see” the permit and stopped defendant for that
violation. Because the uncontroverted evidence during the
suppression hearing was that the officer could see the tem-
porary permit that was in defendant’s window but could not
read it while he was following defendant’s car, and given the
arguments made to the trial court, we understand the trial
court’s finding that it was more likely than not that the offi-
cer “couldn’t see” the permit to be a finding that the officer
could not see what was written on the temporary permit
during the time the officer was following defendant’s vehicle
and that that was due to the design of defendant’s vehicle
rather than the placement of the permit.
After denying the suppression motion, the trial
court determined that defendant had violated the conditions
of his probations and revoked his probations.
“Under Article I, section 9, of the Oregon Constitu-
tion, before a police officer may stop a citizen for a traffic
violation, the officer must have probable cause to believe
that a violation occurred.” State v. Husk, 288 Or App 737,
739, 407 P3d 932 (2017), rev den, 362 Or 665 (2018). “An
officer has probable cause when two conditions are met.” Id.“First, the officer must subjectively believe that an offense
occurred.” Id. “Second, the officer’s subjective belief must be
objectively reasonable[.]” Id. “[I]n order to satisfy the objec-
tive component, the facts that the officer perceives to exist
must establish the elements of an offense, even if not the
Cite as 306 Or App 300 (2020) 303
offense that the officer believed the defendant committed.”
State v. Boatright, 222 Or App 406, 410, 193 P3d 78, rev den,
345 Or 503 (2008) (emphasis in original). “Whether the facts
establish probable cause to stop someone for a traffic viola-
tion is a question of law that we review for legal error.” Husk,
288 Or App at 739.
In this case, defendant does not dispute that the
officer who stopped him subjectively believed that defen-
dant had an improperly displayed temporary permit. Thus,
the issue on appeal is whether that belief was objectively
reasonable.
As relevant to our analysis in this case, ORS
803.655(1) creates the offense of improper display of a per-
mit. It provides:
“A person commits the offense of improper display of a
permit if the person is issued a permit under ORS 803.600,
803.615 or 803.625, and the person does not display the per-
mit on the vehicle in the manner required by ORS 803.650
or as required by the Department of Transportation by
rule.”
ORS 803.655(1). ORS 803.650 provides:
“(1) A permit issued under ORS 803.600, 803.615 or
803.625 shall be placed on the left side of the rear window
of the vehicle unless:
“(a) The vehicle has no rear window; or
“(b) The design of the vehicle or of any equipment law-
fully added to the vehicle is such that a permit placed as
required by this section could not easily be seen from out-
side the vehicle.
“(2) The Department of Transportation shall adopt
rules for the placement of permits that cannot be placed on
the left side of the rear window of a vehicle.”
Thus, under ORS 803.650(1), trip permits issued
under ORS 803.600 and temporary permits issued under
ORS 803.615 and ORS 803.625, must be placed on the
left side of the rear window of a vehicle, unless one of two
exceptions apply. Those two exceptions are when (1) a vehi-
cle has no rear window or (2) a vehicle’s design or any equip-
ment lawfully added to the vehicle makes it so the
304 State v. Ankeny
permit cannot “easily be seen from outside the vehicle.” ORS
803.650(1)(a), (b).
Additionally, ORS 803.650(2) directs the Oregon
Department of Transportation (ODOT) to adopt rules for the
placement of permits that cannot be placed on the left side of
the rear window of a vehicle.
ODOT has adopted OAR 735-032-0030, which pro-
vides, in relevant part:
“(1) Temporary registration permits issued under ORS
803.625 must be readable from the outside of the vehicle
and placed as follows:
“* * * * *
“(b) Vehicle with a rear window: inside, on the left side
and lower corner of the rear window.
“* * * * *
“(2) If the permit cannot be placed as described in sec-
tion (1) of this rule, it must accompany the vehicle and be
available for inspection upon request by a law enforcement
officer or any other person authorized to inspect vehicle
registration. The permit may be kept on the vehicle opera-
tor’s person or in a storage area on the vehicle.”
Thus, OAR 735-032-0030(1) requires that, when a
vehicle has a rear window, such as the vehicle defendant
was driving, temporary registration permits issued under
ORS 803.625 must be (1) “readable from the outside of the
vehicle” and (2) placed “inside, on the left side and lower
corner of the rear window.” If a permit cannot be placed in
such a way, then, under OAR 735-032-0030(2), the permit
must “accompany the vehicle and be available for inspection
upon request by a law enforcement officer or any other per-
son authorized to inspect vehicle registration.”
Turning to the parties’ arguments on appeal, defen-
dant argues that the officer lacked probable cause to stop
him for a traffic violation. Defendant contends that, as used
in ORS 803.650(1)(b), “easily be seen” means “visible,” and,
accordingly, “all ORS 803.650 requires is that the permit
be visible from outside the vehicle.” In defendant’s view,
the placement of the temporary permit in this case was in
Cite as 306 Or App 300 (2020) 305
accordance with ORS 803.650(1) because the permit was on
the left side of the rear window and was visible from outside
the vehicle.
Defendant further contends that OAR 735-032-
0030 is inapplicable because, given his proffered construc-
tion of ORS 803.650(1)(b)—that “easily be seen” means
“visible”—the statutory prerequisites for application of that
rule under ORS 803.650 were not met and that, even if OAR
735-032-0030 is applicable, the officer’s probable cause to
stop defendant dissipated once the officer could read the
permit from outside the vehicle.
The state, for its part, argues that both ORS 803.650
and OAR 735-032-0030 require that temporary permits
be readable by officers following a vehicle, and defendant’s
temporary permit was not. In the state’s view, the purpose
of the temporary permit display requirement is to ensure
that state agents tasked with ensuring compliance with the
state’s vehicle registration rules can read temporary per-
mits from patrol cars. Accordingly, as the state views it, the
officer perceived facts that satisfied the elements of a traffic
violation, and the officer’s probable cause did not dissipate
even though, when the officer approached defendant’s vehi-
cle, the officer was able to read the temporary permit.
Given the arguments on appeal, the first step in our
analysis is to determine whether, given the facts as the offi-
cer perceived them, defendant was required to comply with
the display requirement in ORS 803.650(1) or whether an
exception applied. To answer that question, we first consider
whether the exception found in ORS 803.650(1)(b) applies
when the design of a vehicle makes permits not “visible”
from outside the vehicle, as defendant contends, or when it
makes permits not “readable” from outside the vehicle, as
the state contends.
The meaning of ORS 803.650(1)(b) is a question of
statutory construction. In interpreting statutes, “we seek
to determine the legislature’s intention, by reviewing the
statutory text and context, and, if the court concludes that
it appears useful to the analysis, the legislative history.”
TriMet v. Amalgamated Transit Union Local 757, 362 Or
306 State v. Ankeny
484, 493, 412 P3d 162 (2018). We begin with the text, as
“there is no more persuasive evidence of the intent of the
legislature.” State v. Gaines, 346 Or 160, 171, 206 P3d 1042
(2009).
The legislature did not define “seen” in ORS
803.650(1)(b) and, therefore, we look to the dictionary for
further guidance. Pride Disposal Co. v. Valet Waste, LLC,
298 Or App 751, 759, 448 P3d 680, rev den, 366 Or 64 (2019).
However, “we do not simply consult dictionaries and inter-
pret words in a vacuum.” State v. Cloutier, 351 Or 68, 96,
261 P3d 1234 (2011). “Dictionaries do not tell us what words
mean, only what words can mean, depending on their con-
text and the particular manner in which they are used.” Id.(emphasis in original).
The word “seen” means “perceived or verified by
sight : VISIBLE.” Webster’s Third New Int’l Dictionary 2056
(unabridged ed 2002). Seen is also the past participle of the
verb “see.” See, in turn, may mean “to perceive by the eye
: apprehend through sight.” Id. at 2054. But “see” may also
mean “to inspect or read understandingly (something writ-
ten or printed).” Id. Those definitions establish that “easily be
seen” might mean “easily be visible” or “easily be read under-
standingly.” That is, given the text of ORS 803.650(1)(b),
either party’s interpretation of ORS 803.650(1)(b) might
“be permitted, but neither is required.” Pride Disposal Co.,
298 Or App at 760 (internal quotation marks and emphases
omitted).
With those definitions in mind, we next consider
statutory context, including related statutes. Northwest
Natural Gas Co. v. City of Gresham, 359 Or 309, 322, 374
P3d 829 (2016). In this case, understanding the context in
which the legislature used “easily be seen” in ORS 803.650
requires understanding how that statute operates within
the statutory scheme for vehicle registration requirements
in Oregon and understanding the purpose of vehicle regis-
tration requirements.
“[C]ar registration records were created by the state
for its own purposes,” including the “substantial administra-
tive interest in confirming that only licensed persons drive
properly registered vehicles on public roads.” State v. Davis,
Cite as 306 Or App 300 (2020) 307
237 Or App 351, 356, 239 P3d 1002 (2010). “Registration”
when used “in reference to vehicles,” means “the recording
of a vehicle as authorized for use within a jurisdiction and
includes any documentation or devices issued as evidence
of that authorization.” ORS 801.410(1). “A person commits
the offense of failure to register a vehicle if the person owns
a vehicle in this state and the person does not register the
vehicle in this state.” ORS 803.300.
A “[r]egistration plate” is a plate “issued by a juris-
diction as evidence of vehicle registration.” ORS 801.415.
Subject to certain exceptions, pursuant to ORS 803.520,
ODOT “shall issue and deliver to the owner registration
plates” after “filing of application for registration and pay-
ment of the appropriate registration and registration plate
fees.”
In part to confirm that vehicles are properly regis-
tered, ORS 803.540 requires vehicles to display registration
plates and to do so “in plain view and so as to be read easily
by the public.” ORS 803.540(1); Davis, 237 Or App at 356.
Knowingly altering, modifying, covering, or obscuring a
registration plate, “in any manner * * * so as to render them
unreadable” is prohibited. ORS 803.550(2).
Under certain circumstances, however, it is not a
traffic violation to operate a vehicle in the state without
displaying a valid registration plate issued by the state—
viz., when the vehicle has a “trip permit” or a “temporary
permit.”
A “trip permit” grants “authority to temporarily
operate a vehicle on the highways of this state under circum-
stances where the operation would not otherwise be legal
because the vehicle is not registered by this state or because
provisions relating to the vehicle’s registration do not allow
the operation.” ORS 803.600. Under ORS 803.600(1), trip
permits may be issued by ODOT. Additionally, under ORS
803.600(2), trip permits may be issued by a person issued
a vehicle dealer certificate or a towing business certificate
“to a person who buys a motor vehicle from the person with
the certificate if the registration stickers are removed.” A
trip permit issued by a person issued a vehicle dealer certifi-
cate or a towing business certificate “allows operation of the
308 State v. Ankeny
motor vehicle in this state for the purpose of registering the
vehicle.” ORS 803.600(2)(a).
In addition to trip permits, ODOT may issue a “tem-
porary permit * * * to an applicant for registration to permit
the applicant to operate the vehicle while the department
is determining all facts relative to the right of the appli-
cant to receive * * * regular registration plates and regular
registration.” ORS 803.615. The “holder of a current, valid
vehicle dealer certificate” can also issue “temporary permits
for the operation of vehicles * * * pending the receipt of per-
manent registration from the department.” ORS 803.625(1).
Temporary permits issued by ODOT under ORS 803.615
are referred to as “temporary application permits” in some
places in the motor vehicle code, see, e.g., ORS 803.540(2)(a),
while temporary permits issued by vehicle dealers under
ORS 803.625 are referred to as “temporary registration per-
mit[s],” see, e.g., ORS 803.630(1).
A person issued a temporary permit under ORS
803.625 commits a traffic violation if they violate “any rule
adopted by the Department of Transportation under ORS
803.625 concerning the use of the permit” or fail “to keep the
permit on and upon the vehicle during the period until the
receipt of the permanent registration plates.” ORS 803.635.
The legislature has mandated that the “[t]he color
and size of the print on permits issued under ORS 803.600,
803.615 and 803.625” is such that “the permits can easily be
read.” ORS 803.660.
From the statutory context surrounding ORS
803.650(1)’s display requirement for permits, it is evident
that, like registration plates, permits provide evidence of
authorization to drive on Oregon roads, and that is why,
like registration plates, they are required to be displayed.
Further, it is evident that the legislature intended that,
when displayed, permits, like registration plates, would be
readable. See ORS 803.660 (requiring trip and temporary
permits be designed in such a manner that they “can easily
be read”); ORS 803.540(1) (requiring registration plates to
be displayed “in plain view and so as to be read easily by the
public”).
Cite as 306 Or App 300 (2020) 309
Given that context, we understand the primary
purpose of the display requirement in ORS 803.650(1) to
be to ensure that, when people are not displaying a valid
registration plate as evidence of vehicle registration, state
authorities charged with monitoring compliance with vehi-
cle registration requirements have a means to readily and
easily determine whether an exception to the normal vehi-
cle registration requirement applies—i.e., a means to deter-
mine whether a vehicle has a valid permit.
We next turn to the legislative history of ORS
803.650, mindful that, in general, “an examination of leg-
islative history is most useful when it is able to uncover the
manifest general legislative intent behind an enactment.”
DCBS v. Muliro, 359 Or 736, 753, 380 P3d 270 (2016).
Both ORS 803.650 and ORS 803.660 were enacted
through House Bill (HB) 2775 (1987). As noted, ORS 803.650
requires that, unless one of two exceptions apply, permits
be placed on the “left side of the rear window” and ORS
803.660 mandates that “[t]he color and size of the print” on
such permits is such that “the permits can easily be read.”
ORS 803.660.
Prior to passage of HB 2775, the “accepted prac-
tice” was to place permits in the lower left corner of a vehi-
cle’s front window. Tape Recording, Senate Committee on
Transportation, HB 2775, Apr 27, 1987, Tape 102, Side A
(statement of Bill Seally). At the House Committee on
Transportation public hearing and work session on HB
2775, Representative John Minnis briefed the committee on
the bill. He explained the purpose for the bill as follows:
“[T]he problem that a lot of police officers run into is that
as you’re following a car down the street * * * you’ll often
times [find] a car that either has expired plates or does not
have a visible vehicle plate at all. The police officer then
has to either drive up alongside the vehicle or somehow
peer through the window to see if there is a temporary tag
in that window, making a determination or decision as to
whether they want to stop that car and verify that in fact
they do either have current plates or registration. So the
justification was to move it to that back left window so that
officers could see it.”
310 State v. Ankeny
Tape Recording, House Committee on Transportation, HB
2775, Mar 12, 1987, Tape 42, Side A (statement of Rep John
Minnis). Representative Minnis further explained that the
benefit of the display requirement for permits in HB 2775 is
that it would allow “law enforcement agencies who are there
to control the traffic and make sure that we all have appro-
priate registrations and permits to drive our cars” a means
to ensure that people “in fact do have those permits.” Id.Additionally, in Representative Minnis’ view, HB
2775 would reduce unnecessary traffic stops because it
would enable officers to “see” a permit and to “verify” that it
was a “good and valid registration” without pulling a vehi-
cle over. Id.; see also Tape Recording, Senate Committee on
Transportation, HB 2775, May 1, 1987, Tape 105, Side A
(statement of Rep John Minnis) (explaining that HB 2775
“would help alleviate some of the problems with inappropri-
ate stops by police officers or stops that maybe are unneces-
sary, and would prevent police officers from having to sub-
sequently be embroiled in some dispute over justification or
reason for stopping the car”).
At that same meeting, Bill Seally, a representative
from the Department of Motor Vehicles, testified that, in
designing forms that “can easily be read” the Department
of Motor Vehicles would consult with law enforcement about
what is readable. Tape Recording, House Committee on
Transportation, HB 2775, Mar 12, 1987, Tape 42, Side A
(statement of Bill Seally).
At a subsequent meeting of the Senate Committee
on Transportation, Seally explained that the “two key pieces
of information” on a permit are “the expiration date and the
vehicle identifier” and that those allow a law enforcement
officer to determine whether the permit “was attached to
the correct vehicle and determine whether it was still valid.”
Tape Recording, Senate Committee on Transportation,
HB 2775, Apr 27, 1987, Tape 101, Side A (statement of Bill
Seally). Seally further explained that the intent of the per-
mit readability provision in HB 2775 was to “make the per-
mit more visible,” and to “make sure the important items on
it * * * would be readable from more distance than they are
now.” Id.Cite as 306 Or App 300 (2020) 311
The legislative history of ORS 803.650 confirms
our understanding that the primary purpose of the display
requirement in ORS 803.650(1) is to ensure that, when peo-
ple are not displaying a valid registration plate as evidence
of vehicle registration, state authorities charged with mon-
itoring compliance with vehicle registration requirements
have a means to readily and easily determine whether an
exception to the normal vehicle registration requirement
applies—i.e., the vehicle has a valid permit. It also reflects
that, in particular, the bill was intended to give law enforce-
ment officers on patrol a means of verifying that a vehicle
has a valid permit without engaging in an unnecessary
traffic stop.
With that understanding of the text, context, and
legislative history of ORS 803.650, we turn back to when
the exception in ORS 803.650(1)(b) to the permit placement
requirement in ORS 803.650(1) applies. We conclude “easily
be seen,” as used in ORS 803.650(1)(b), means “easily be read
understandingly.” Therefore, the legislature intended that
the exception in ORS 803.650(1)(b) to the display require-
ment in ORS 803.650(1) apply when the “design of the vehi-
cle or of any equipment lawfully added to the vehicle” makes
it so that a permit could not easily be read understandingly
by a person driving behind the vehicle with the permit, such
as the officer in this case.
Here, the design of defendant’s vehicle—i.e., the
slanted rear window—made it so that defendant’s temporary
permit could not easily be read understandingly by a per-
son in a vehicle following behind him, and, thus, the display
requirement in ORS 803.650(1) was inapplicable. Defendant
was, however, required to comply with OAR 735-032-0030.
As noted, OAR 735-032-0030(1) requires that, when
a vehicle has a rear window, such as the vehicle defendant
was driving, temporary registration permits issued under
ORS 803.625 must be (1) “readable from the outside of the
vehicle” and (2) placed on the “left side and lower corner of
the rear window.” If a permit cannot be placed in such a
way, then, under OAR 735-032-0030(2), the permit must
“accompany the vehicle and be available for inspection upon
312 State v. Ankeny
request by a law enforcement officer or any other person
authorized to inspect vehicle registration.”
In construing an administrative rule, such as OAR
735-032-0030, “we apply the same analytical framework
that applies to the construction of statutes.” State v. Hogevoll,
348 Or 104, 109, 228 P3d 569 (2010). For vehicles like defen-
dant’s that have a rear window, the text of OAR 735-032-
0030 expressly mandates that temporary permits issued
under ORS 803.625 “must be readable from the outside of
the vehicle,” unless they “cannot be.” OAR 735-032-0030,
like ORS 803.650, concerns placement of temporary permits.
As described above, temporary permits provide evidence of
authorization to drive on Oregon roads, and temporary per-
mits are required to be displayed so that state authorities
charged with monitoring compliance with vehicle registra-
tion requirements have a means to readily and easily deter-
mine whether an exception to the normal vehicle registra-
tion requirement applies. The legislature has mandated that
temporary permits be designed in such a way that they are
“readable.” Further, as discussed above, one purpose of dis-
play and readability requirements regarding permits was to
reduce unnecessary traffic stops by officers on patrol.
With that understanding of the text and context
OAR 735-032-0030, we conclude that “readable from the
outside of the vehicle,” as that phrase is used in OAR 735-
032-0030(1), and with reference to a vehicle that has a rear
window, means readable by someone in another vehicle fol-
lowing the vehicle with the temporary permit. That is the
“normal position” from which a person, and particularly
a law enforcement officer on patrol, would view a tempo-
rary permit. See Boatright, 222 Or App at 413-14 (officer
had probable cause to investigate the defendant for illegal
alteration or display of a registration plate, ORS 803.550,
because, although the officer could see “the entire plate from
an unusual position”—i.e., “looking down at the license plate
from directly above,” he was unable to see the “the regis-
tration sticker [on the plate] from a normal position”—the
“angle that it would most commonly be viewed”).
That conclusion, however, does not end our
inquiry regarding probable cause in this case. Under OAR
Cite as 306 Or App 300 (2020) 313
735-032-0030(2), when, among other things, a temporary
permit is not “readable from the outside of the vehicle” the
permit is required to “accompany the vehicle and be avail-
able for inspection upon request by a law enforcement officer
or any other person authorized to inspect vehicle registra-
tion.” Here, once the officer approached defendant’s vehicle
and was able to read and inspect the permit, it was not objec-
tively reasonable to believe that defendant was in violation
of OAR 735-032-0030, because defendant was in compliance
with OAR 735-032-0030(2).
State v. Farley, 308 Or 91, 75 P2d 835 (1989), is
instructive. In that case, a police officer stopped the defen-
dant because the defendant’s vehicle “had no visible license
plates, an apparent traffic infraction. ORS 803.540.” Farley,
308 Or at 93. When approaching the defendant’s vehicle,
however, the officer noticed a valid temporary vehicle per-
mit posted on the window, allowing the vehicle to be oper-
ated without license plates under ORS 803.540(2)(a). Farley,
308 Or at 93. The officer’s observation of the valid tempo-
rary permit satisfied the reason for the initial stop, and the
officer observed no other wrongdoing. Id. Nonetheless, “as
a matter of police routine, the officer asked defendant for
his driver license.” Id. The defendant presented his license
and the officer then detained the defendant and his vehicle
while checking on the status of his license. Id. On the basis
of information obtained, the officer cited the defendant for
driving while suspended. Id.The defendant moved to suppress evidence obtained
as a result of the stop, and the trial court granted the motion.
Id. The Supreme Court affirmed the trial court’s ruling,
reasoning that, although “the officer lawfully stopped defen-
dant for the purposes of investigation reasonably related to
the apparent traffic infraction of operating a vehicle without
license plates,” upon seeing the temporary permit, “the jus-
tification of any investigation was vitiated. Plain and sim-
ple, the officer had no statutory authority to proceed fur-
ther. That authority ended with the officer’s discovery that
the traffic infraction he was investigating had not actually
occurred.” Id. at 94 (internal quotation marks and brackets
omitted).
314 State v. Ankeny
In this case, the officer stopped defendant for
improper display of a permit, but, once the officer was able to
see that defendant had a valid temporary permit available
for inspection, the “facts that the officer perceive[d]” no lon-
ger “established the elements of an offence.” Boatright, 222
Or App at 410 (emphasis in original). That is because the
facts as the officer perceived them when he approached on
foot, by seeing and reading the permit, demonstrated that
defendant was in compliance with OAR 735-032-0030(2)
because the permit accompanied the vehicle and was avail-
able for inspection. Thus, the “justification of any investiga-
tion was vitiated.” Farley, 308 Or at 94. At that point, the
officer had no probable cause to proceed with the traffic stop
and ask defendant for his driver’s license and thereafter
obtain the evidence that defendant sought to suppress.2
In light of our analysis above, we conclude that the
trial court erred in denying defendant’s motion to suppress.
We therefore reverse and remand.
Reversed and remanded.
2
“[A]n officer cannot simply ignore evidence that evinces a person’s inno-
cence when determining whether there is probable cause.” Miller v. Columbia
County, 282 Or App 348, 359, 385 P3d 1214 (2016), rev den, 361 Or 238 (2017).
In this case, the facts as the officer perceived them when he approached defen-
dant’s vehicle demonstrated that, although defendant’s temporary permit was
not readable when the officer was driving behind defendant due to the angle of
defendant’s rear window, defendant had a temporary permit that was “available
for inspection upon request by a law enforcement officer.” OAR 735-032-0030(2).
Accordingly, the officer’s probable cause to stop defendant for improper display
of a permit, ORS 803.655, dissipated before he asked defendant for his driver’s
license and obtained the evidence that defendant sought to suppress.