State v. Aguilar

                                        457

    Submitted October 31, 2018, resubmitted en banc August 19; reversed and
                        remanded November 12, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   ALICIA LEE ANN AGUILAR,
                       Defendant-Appellant.
                  Washington County Circuit Court
                       16CR72930; A164497
                                    

     Defendant was stopped for the traffic violation of failing to wear a safety belt,
ORS 811.210, and subsequently gave consent to search her purse, resulting in
the discovery of methamphetamine. She appeals from a judgment of conviction
for felony possession of methamphetamine, ORS 475.894. She raises two assignments of error. First, she argues that her conviction is void under Article VII
(Amended), section 5, of the Oregon Constitution because she was not indicted,
there was no preliminary hearing, and she did not knowingly waive her right to
an indictment or a preliminary hearing. She argues that the trial court lacked
subject matter jurisdiction and committed plain error in entering a conviction.
Second, defendant assigns error to the denial of her motion to suppress evidence
derived from the consent search of her purse. She argues that the officer lacked
probable cause to stop and investigate her for the traffic violation of failing to
wear a safety belt, and that her subsequent consent was tainted by the illegal
stop. Held: The Court of Appeals rejected defendant’s constitutional challenge to
the trial court’s jurisdiction, but concluded that the trial court erred in denying
defendant’s motion to suppress and in concluding that the officer had probable
cause to believe that defendant had committed the traffic violation of not wearing
a safety belt in a vehicle operating on the highway.
    Reversed and remanded.




    En Banc
    Kirsten E. Thompson, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
458                                    State v. Aguilar

  Before Egan, Chief Judge, and Armstrong, Ortega,
DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi,
Powers, Mooney, and Kamins, Judges.
  SHORR, J.
  Reversed and remanded.
  Mooney, J., concurring.
  Armstrong, J., dissenting.
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 (2020)                                                 459

          SHORR, J.
         Defendant appeals from a judgment of conviction
for possession of methamphetamine, a felony. She raises
two assignments of error. First, she makes the unpreserved
argument that her conviction is void under Article VII
(Amended), section 5, of the Oregon Constitution1 because
she was not indicted, there was no preliminary hearing, and
she did not knowingly waive indictment or preliminary hearing. She argues that, in view of that failure, the trial court
lacked subject matter jurisdiction and committed plain error
in entering a conviction. Second, defendant assigns error to
the denial of her motion to suppress evidence derived from a
consent search of her purse following a noncriminal traffic
stop. We reject defendant’s constitutional challenge to the
trial court’s jurisdiction but conclude that the court erred
in denying the suppression motion. Accordingly, we reverse
defendant’s conviction and remand for further proceedings.

          We first address defendant’s constitutional argument because defendant correctly contends that the question pertains to the trial court’s jurisdiction to try her and
enter a judgment. See State v. Keys, 

, 523-
24, 

, rev allowed, 

 (2020) (“[I]n the
absence of indictment, preliminary hearing, or waiver, the
circuit court lacks jurisdiction to try the defendant [for a
felony,] and any judgment rendered in the case is void.”). The
facts relating to defendant’s constitutional argument are all
procedural. We discuss those facts now and discuss additional facts relevant to defendant’s second assignment later
when we address that issue.

   1
     Article VII (Amended), section 5, provides, as pertinent:
        “(3) Except as provided in subsections (4) and (5) of this section, a person
   shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.
        “(4) The district attorney may charge a person on an information filed in
   circuit court of a crime punishable as a felony if the person appears before the
   judge of the circuit court and knowingly waives indictment.
        “(5) The district attorney may charge a person on an information filed in
   circuit court if, after a preliminary hearing before a magistrate, the person
   has been held to answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it,
   or if the person knowingly waives preliminary hearing.”
460                                             State v. Aguilar

        Defendant was initially charged by complainant’s
information with unlawful possession of methamphetamine, and a preliminary hearing was set. At the date set
for the preliminary hearing, the state asked for a waiver
of the preliminary hearing. Defendant was present with
substitute counsel because her counsel was unavailable.
Defendant’s substitute counsel told the court that she had
been informed that defendant had agreed to waive the preliminary hearing:
   “I have been told that [defendant’s counsel] and [defendant]
   have spoken and that [defendant] was waiving the prelim if an indictment wasn’t ready. And I see [defendant] is
   nodding—nodding that that is the case.”
The court entered an order that defendant had waived
indictment. Defendant was subsequently arraigned on a
district attorney’s information and convicted after a trial to
the court.
         Defendant contends that her conviction must be set
aside as void because the record does not show that she knowingly waived her right to an indictment or a preliminary
hearing. Specifically, defendant contends that the record
does not show that the court provided her information about
her right to a preliminary hearing, nor did the court confirm
that defendant understood what she was relinquishing.
        The state does not dispute that the record does not
affirmatively show that the trial court informed defendant
about her right to a preliminary hearing. Rather, the state
contends that defendant has not established that the record
shows the absence of a knowing waiver. See Keys, 

 (court lacks jurisdiction “in the absence” of an
indictment, preliminary hearing, or knowing waiver).
        We recently held in State v. Foss-Vigil, 

, 

 (2020), that a conviction will be set
aside based on a failure to provide an indictment or preliminary hearing if the record establishes the absence of a
knowing waiver. In Foss-Vigil, we noted that the record in
Keys affirmatively established that the lawyer had not discussed the waiver with his client before making the purported waiver in court. 

 By contrast, we observed that
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 (2020)                                  461

the record in Foss-Vigil suggested that counsel had communicated with the defendant about waiving the preliminary
hearing and then communicated the defendant’s own waiver
to the court. Id. at 274.
         Here, the record is similar to Foss-Vigil and the
same conclusion applies. Defendant’s substitute counsel
indicated on the record that she understood that defendant had spoken with her regular counsel about “waiving
the prelim,” i.e., preliminary hearing, if the indictment was
not ready. Substitute counsel further noted for the record
that defendant was affirmatively nodding in agreement
with that statement. As in Foss-Vigil, the record does not
affirmatively show that defendant did not knowingly waive
her right to indictment or a preliminary hearing. Rather,
it demonstrates that counsel and defendant had discussed
the issue of waiver prior to court and that counsel then
communicated defendant’s waiver in court. See also State
v. Granberg, 

, 

 (2020) (concluding that, where the defendant previously had requested
a preliminary hearing, the record reflected the absence of
a knowing waiver because there was no evidence allowing
for the inference that the defendant ever changed his mind
about his request).
         Defendant, citing Huffman v. Alexander, 

, 

 (1952), reh’g den, 

, 

 (1953), contends that the trial court nonetheless had an
obligation to ensure that defendant’s waiver was knowing
by informing defendant on the record about the meaning of
the right that she was relinquishing and confirming that
defendant understood the nature of that right. In Huffman,
the court held, based on then-existing principles of habeas
corpus, that the petitioner should have had an opportunity
to establish in a habeas corpus proceeding that his waiver
of indictment in the underlying criminal case was invalid.

. In summarizing its holding, the court described
the court’s role in receiving waivers of constitutional rights
generally:
   “Extreme care must be exercised in each case to see to it that
   the accused understands the nature of the charge against
   him, the consequences of possible conviction, the rights
462                                              State v. Aguilar

   which are his under the Constitution, and the nature and
   the effect of the waiver of any such rights, particularly when
   he appears without counsel. This duty should normally be
   performed in open court and the judicial record should accurately recite what was done, supported wherever possible
   by an official stenographic transcript of the proceedings on
   arraignment and at the time of any waiver or plea.”

.
         The record here does not show that the court conducted the inquiry that the Supreme Court described in
Huffman. But we have not interpreted Huffman to require
such a colloquy for a waiver of constitutional rights to be
valid. See State v. Jackson, 

, 

 (2001) (although a colloquy on the record is the preferred
method of establishing that a waiver of the right to counsel
was made knowingly, we will affirm a trial court’s acceptance of a defendant’s waiver where, under the totality of
the circumstances, the record reflects that the defendant
knew of the right to counsel and understood the risks of
self-representation). We decline to hold that the court was
constitutionally required to advise defendant on the record,
and we reject defendant’s contention that her conviction was
void. See Foss-Vigil, 

 (rejecting the defendant’s undeveloped argument that the trial court “itself”
was required to inform the defendant about the meaning of
the right to a preliminary hearing before that right could be
waived and observing that the record did “not demonstrate
definitively that defendant’s waiver was unknowing”).
          We turn to defendant’s second assignment of error.
Defendant contends that the trial court erred in denying
her motion to suppress evidence that an officer found after
defendant consented to the officer’s request to search her
purse. Defendant argued to the trial court that the officer
lacked probable cause to stop and investigate her for the
traffic violation of failing to wear a safety belt. Defendant
contended that her consent to a search of her purse was the
product of an unlawful stop and that any evidence found
in her purse following that stop must be suppressed. The
court rejected defendant’s suppression motion, concluding
that the officer had probable cause to stop defendant for the
traffic violation of failure to wear a safety belt.
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 (2020)                             463

         We review the trial court’s ruling denying defendant’s motion to suppress for legal error, in light of the evidence that was before the court when it made its ruling.
State v. Quigley, 

, 

 (2015)
(reviewing for legal error whether an officer unlawfully
extended a traffic stop and whether evidence obtained after
an unlawful extension of a traffic stop must be suppressed
for legal error); State v. Pitt, 

, 

(2012) (as a general rule, a reviewing court evaluates a trial
court’s ruling on a pretrial motion “in light of the record
made before the trial court when it issued the order, not the
trial record as it may have developed at some later point”).
We are bound by the trial court’s factual findings if there is
constitutionally sufficient evidence in the record to support
them. State v. Maciel-Figueroa, 

, 

 (2017). If the trial court did not make express findings
and the record includes evidence from which the court could
have found the facts in more than one way, we will presume
that the court decided the facts consistently with the court’s
ultimate conclusion. 

. We summarize the facts in
accordance with those standards.
          At approximately 2:38 a.m., Washington County
Sheriff’s Deputy Mitchell observed a car flash its headlights
on and off several times and then make a turn off 185th
Street into a Goodwill parking lot without signaling. Based
on those observed traffic violations, Mitchell activated his
overhead lights and initiated a stop of the car. Defendant
was a passenger in that car. The car proceeded about
100 yards through a “fairly large” parking lot before coming
to a complete stop in the lot. Mitchell estimated it took about
six to eight seconds after the car turned into the parking lot
for it to come to a complete stop.
         Mitchell testified that he did not make any observations as to whether defendant, who was in the right rear
passenger seat, was wearing a seatbelt during any time
while the car was moving either on the public highway or in
the Goodwill parking lot. Indeed, the undisputed testimony
is that Mitchell did not observe defendant and the fact that
she was not wearing a seatbelt until he approached the car,
which was 10 to 12 seconds after the car had left the public
roadway.
464                                             State v. Aguilar

          At the hearing on the motion to suppress, the state
elicited the following testimony from Mitchell:
      “Q Okay. So how—how much time passed from when
   the car left—when the suspect car left 185th to when you
   noticed no right rear passenger seatbelt?
      “A    Ten seconds. Ten, 12 seconds.
      “…
      “Q Did you make any observations about the lack of a
   seatbelt prior to getting out of your [patrol] car and being
   on foot?
      “A    I did not.
      “Q Okay. So you did not make that observation on
   185th?
      “A    I did not.
      “Q You did not make that observation as you were
   driving through the Goodwill parking lot following this
   vehicle?
      “A    I did not.”
Mitchell testified that he first observed that defendant was
not wearing a shoulder-style seatbelt after both vehicles had
stopped and he had walked a couple of steps out of his car
and looked at the passengers in the vehicle. At that time,
Mitchell observed that there was a driver and three passengers in the car. As he approached the vehicle, he noticed
that the right rear passenger, later identified as defendant,
was not wearing her shoulder belt, but the left rear passenger was wearing a shoulder belt. The trial court found
that Mitchell had not seen defendant make any “unusual
movements.”
          When Mitchell was outside the car, he noted to
defendant that she was not wearing her seatbelt. Defendant
replied that she had just taken it off. Mitchell testified that
he did not believe defendant based on his experience in other
traffic stops:
      “Q You believe that she actually did not have her seatbelt on while the car was still on 185th?
      “A    That is correct.
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       “Q What factors did you look at that led you to that
    belief?
       “A Based on my experience in the traffic—in traffic
    stops, normal—normal—the normal person or reasonable
    person doesn’t pop off their seatbelt right away when getting stopped by the police.
        “…
       “It’s—I never see anyone take their seatbelt off as I’m
    walking up to the vehicle or—and they’re taking their seatbelt off. The only time in my experience that someone does
    that if, hey, I need to reach over here for this document or
    that and they take off their seatbelt to reach over. It’s—just
    doesn’t happen.”

Mitchell had been an officer for about three years at this
point and had been involved in “hundreds, if not thousands”
of stops.
        When Deputy Vargas arrived as back up, Mitchell
asked him to obtain defendant’s identification. Defendant
handed Vargas her identification, and Vargas returned to
his patrol car, where he learned from dispatch that defendant was on probation for possession of methamphetamine.
         While Vargas was interacting with defendant and
communicating with dispatch, Mitchell continued to speak
with the driver, who eventually consented to a search of the
car. Vargas asked everyone to get out of the car in preparation for the search. Vargas noticed that defendant had a
purse and suspected that she had methamphetamine in it.
He told her to stand by his patrol car and confirmed with
her that she was on probation for possession of methamphetamine. Vargas asked defendant if he could search her purse.
Defendant said yes and handed Vargas her purse. The
search of defendant’s purse led to the discovery of, among
other things, a substance that defendant identified as methamphetamine. The state charged defendant with unlawful
possession of methamphetamine, a felony, ORS 475.894.2

    2
      ORS 475.894 was amended shortly after defendant was convicted. However,
because those amendments do not affect our analysis, we refer to the current version of the statute in this opinion.
466                                                             State v. Aguilar

         Defendant moved to suppress the evidence found in
her purse and the statements she made during the search,
contending that the officer lacked probable cause to ask for
and check defendant’s identification for the purpose of investigating a traffic violation. See ORS 810.410(2) (“A police officer may issue a citation to a person for a traffic violation …
[w]hen the traffic violation is committed in the police officer’s
presence; or … [w]hen the police officer has probable cause
to believe an offense has occurred based on a description of
the vehicle or other information received from a police officer who observed the traffic violation.”). Defendant further
argued that her subsequent consent to allow the officer to
search her purse was unlawful because it was tainted by
the immediately prior illegal stop. The trial court denied the
motion, concluding, “under the circumstances in this case,
that the officer had developed reasonable suspicion and then
probable cause to issue a citation for … a traffic violation
of the passenger in the vehicle not having a seatbelt on.”
Defendant was later tried before the court, and the evidence
found in her purse, namely the methamphetamine, was
admitted. On appeal, she challenges the court’s denial of
her motion to suppress.
         We turn to the law that applies to the police officer’s
stop and search of defendant. It is undisputed that Vargas
“stopped” defendant when he took her identification to his
patrol car. See State v. Rodriguez-Perez, 

, 

 (2014) (holding that a stop occurred when
police approached the defendant, told him that they suspected him of violating the law, and took and retained his
identification).3 Our case law requires that, under Article I,
     3
       It is important to note that the stop at issue here was the stop that occurred
when Mitchell took defendant’s identification from her and returned to his patrol
car. The issue in this case is not Mitchell’s stop of the driver and vehicle for the
driver’s traffic violation, but that later stop of defendant. A stop of a car for a traffic violation is not, by itself, a seizure of the passengers in the car, who, at least
under law, are free to leave the car and walk away without police interference.
See, e.g., State v. Thompkin, 

, 

 (2006) (stating that “all
passengers in a vehicle subject to a valid traffic stop have been ‘stopped’ (at least
physically) but without more, have not been ‘seized’ as a constitutional matter”).
     It is also significant that the trial court’s decision on the motion to suppress
occurred before the Supreme Court decided State v. Arreola-Botello, 

, 

 (2019), which rejected the “unavoidable lull doctrine” and concluded that officers cannot ask questions unrelated to the investigation of the
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 (2020)                                                 467

section 9, of the Oregon Constitution, an officer must develop
probable cause—rather than merely reasonable suspicion—
to stop a citizen for a traffic violation. State v. Gordon, 

, 

 (2015), rev den, 

(2016). On appeal, defendant does not dispute that Mitchell
subjectively believed that defendant had not been wearing
a seatbelt. But she contends that Vargas lacked probable
cause to stop her for a seatbelt violation because, not having
observed defendant without a seatbelt while riding in a car
on a public highway, Mitchell lacked an objectively reasonable belief that defendant had committed that violation.
         The state responds that, to develop probable cause,
it was not necessary for Mitchell to have seen defendant not
wearing a seatbelt when the vehicle was moving on a public highway. Instead, the state contends that Mitchell only
needed an objectively reasonable belief that it was more
likely than not that defendant had not been wearing a seatbelt while the car was moving on the highway.
         Under Article I, section 9, probable cause requires
facts which—viewed in the “totality of the circumstances,
including the officer’s training and experience”—objectively
establish that an individual more likely than not has committed the offense. State v. Vasquez-Villagomez, 

, 

 (2009); see also State v. Ratliff, 

, 

 (1986), aff’d, 

, 

 (1987) (stating in the reasonable suspicion context that
“[t]he significance of any of the facts known to the officer
may be enhanced by the officer’s special knowledge of the
way certain crimes are committed”).

traffic stop simply because there is an opportunity during a “lull” in which they
are confirming someone’s license and record information with police records.
Rather, the questions and further investigation must have an “independent constitutional justification.” 

 The original stop that led to this case was of the
driver. The state argued in the trial court that there was an independent constitutional justification to investigate defendant for a seatbelt violation and another
passenger named Zavala for a different traffic violation. The state argued that,
if there was not that independent constitutional justification, the questioning
of defendant occurred during an “unavoidable lull.” The state does not rely on
that now-discarded doctrine on appeal. In deciding Arreola-Botello, the Supreme
Court noted the disparate treatment of motorists who are Black, Hispanic, or
other people of color, and it recognized that a subject-matter limitation on questioning that is limited to constitutional grounds mitigates the risks that traffic
stops are based on an officer’s explicit or implicit biases. 

 at 713 n 9.
468                                                          State v. Aguilar

         Here, the principal evidence that the state offered
in the trial court to support probable cause was (1) that
the officer observed defendant without a seatbelt after the
car was stopped and approximately 10 to 12 seconds after
the car left the public highway and (2) that it was the officer’s experience that “normal” people do not take off their
seatbelts after a car is stopped by the police. The issue is
whether it is objectively reasonable to conclude, in the circumstances of this case, that, more likely than not, defendant had committed the traffic offense of not wearing a seatbelt while a passenger in a car that was being operated on a
highway.4 See Vasquez-Villagomez, 

 (applying
that probable cause standard to an officer’s belief that the
arrested suspects had committed a crime). We conclude that
the evidence is insufficient to support probable cause.
         As noted above, Mitchell did not notice defendant
until the car she was in was completely stopped in the
Goodwill parking lot, having left the highway 10 to 12 seconds before. There is no evidence in the record that the deputy had observed defendant either on the highway or during
the time that the car drove through the parking lot and
came to a stop. Mitchell did not observe defendant doing
anything suspicious or unlawful while the car was in motion
or right afterward when it came to a stop. Upon first observing defendant when the car was stopped, Mitchell rejected
defendant’s explanation for her absent seatbelt based solely
on his own experience and not on any other observation or
suspicion particular to defendant. Indeed, the only observation that Mitchell made that relates to defendant’s conduct was that he observed her doing something that was
legal. It was legal for a passenger to be sitting without a
seatbelt in a stopped vehicle in a parking lot. Of course, we
do not discount the possibility that defendant did not have
her seatbelt on when the car was operating on the highway.

    4
      Under ORS 811.210(1)(H), it is a traffic offense for a person who is 16 or
older to fail to properly use a seatbelt when “a passenger in a motor vehicle being
operated on the highways of this state.” Both the state and defendant assume
that the car was no longer operating on a highway once the car left 185th Street
and entered the Goodwill parking lot. We also assume, without deciding, that
that is the case. See ORS 801.305(1) (defining a “highway” to include, among
other things, every place “open, used, or intended for use of the general public for
vehicles or vehicular traffic as a matter of right”).
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But there is nothing in this record to support that conclusion, let alone meet the more-likely-than-not probable cause
threshold. There is no evidence that the deputy even noticed
defendant or her lack of a seatbelt until he saw her in the
stopped car in the parking lot 10 to 12 seconds after the car
had left the public highway.5
         An officer’s belief must be based on “specific and
articulable facts, interpreted in the light of the existing circumstances and [the officer’s] experience, that the person
has committed or is about to commit a crime” or, here, a
traffic violation. State v. Farrar, 

, 

 (2012) (so stating in the context of a reasonablesuspicion stop). There are no specific and articulable facts
in this record to support the conclusion that defendant had
more likely than not committed any traffic violation.
         Like the trial court did, the dissent concludes otherwise based on the deputy’s experience that “normal” passengers do not take off their seatbelts in parking lots after
the police stop the cars in which they are traveling.6 307
Or App at 476 (Armstrong, J., dissenting). That analysis
improperly uses officer experience to add a fact—that defendant was not wearing a seatbelt—without any evidence in
the record from which to reasonably draw that conclusion.
As noted above, an officer may consider the facts in light of
the officer’s training, knowledge, and experience, but that
experience cannot itself supply the facts. “Officer intuition

     5
       We note that, as always, we decide cases based on the factual record before
us. We do not conclude that a police officer could never have probable cause to
believe a traffic violation occurred upon immediately observing a passenger in a
just-parked car without a seatbelt. We conclude only that the officer here did not
have probable cause under these facts when he first observed defendant without
a seatbelt in a parked car in a parking lot approximately 10 to 12 seconds after
the car left the public roadway.
     6
       To the extent that the trial court concluded that Mitchell’s belief was
objectively reasonable because the court found that Mitchell had not seen any
“unusual movements,” that finding is not supported by any evidence. As noted
above, the undisputed evidence is that Mitchell did not observe defendant’s lack
of a seatbelt until the car was stopped in the parking lot. Even properly crediting
the trial court’s express findings of fact and any implied findings of fact that
support its ultimate conclusion, as we must, there was no evidence to support a
finding that Mitchell observed anything at all about defendant until the car was
stopped. See Maciel-Figueroa, 

 (stating our factual standard of
review).
470                                            State v. Aguilar

and experience alone are not sufficient to meet that objective test.” State v. Holdorf, 

, 

(2014) (discussing the lower reasonable suspicion standard).
As we have observed when analyzing whether an officer had
reasonable suspicion to make a stop, “[a]n officer’s training
and experience may help an officer interpret a specific and
articulable fact in a given situation or event, but training
and experience is not, in and of itself, a specific and articulable fact that can provide” proof of reasonable suspicion or,
here, probable cause. State v. Schmitz, 

, 178,

 (2019); see also State v. Sunderman, 

, 

 (2020) (stating same in the context
of a probable cause analysis).
         In Sunderman, we concluded that the presence of a
methamphetamine pipe could not provide probable cause for
the presence of methamphetamine when that inference was
based solely on the officer’s experience that, when he finds
methamphetamine pipes in a car, he also finds methamphetamine “75 percent of the time.” 304 Or App at 333, 347. We
noted that testimony that people who possess methamphetamine pipes are also likely to possess methamphetamine is
“not particularized to defendant or her car and does not—
by itself—constitute a specific and articulable fact on which
probable cause can be based.” Id. at 347. In this case, the
dissent essentially concludes that an officer’s initial observation of someone doing something legal and not suspicious
is more likely than not indicative of prior illegal activity
based solely on officer experience that people do not take off
their seatbelts in cars that were recently pulled over by the
police—here, in a parking lot at night.
         Mitchell’s training and experience cannot be used
to turn an observed fact—that defendant was not wearing
a seatbelt when the car was stopped about 10 to 12 seconds
after leaving the highway—into something never observed
by the officer—that defendant more likely than not was not
wearing a seatbelt when the car was operating on the highway. Officer experience might explain legal but otherwise
suspicious behavior to place it in context for the factfinder,
but it cannot be a substitute for specific and articulable facts.
The fact that defendant was observed not wearing a seatbelt
10 to 12 seconds after the car had left the highway, even
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 (2020)                                                   471

when combined with the officer’s training and experience,
could not lead a reasonable person to conclude that, more
likely than not, defendant had committed the traffic violation of not wearing a seatbelt while in a car operating on the
highway.7 We conclude that the trial court erred in denying
the motion to suppress, and in concluding that the officer
had probable cause to believe that defendant had committed
the traffic violation of not wearing a safety belt in a vehicle
operating on the highway.8
         We next address the question of harmlessness. “We
must affirm a judgment, despite any error committed at trial,
if we determine that there is little likelihood that the particular error affected the verdict.” State v. Strasser, 

, 

 (2020) (internal quotation marks and
citation omitted). Here, an officer discovered methamphetamine during a search of defendant’s purse. That evidence
was then admitted in a bench trial, and defendant was convicted of possession of methamphetamine. We readily conclude that the trial court’s error in failing to suppress that
evidence was not harmless.

     7
       The trial court reached its conclusion, in part, by analogizing to the circumstance where an officer sees an open alcohol container near a suspect in a stopped
car and concludes that the suspect did not likely open the container only after
the officer stopped the car. That analogy has significant limitations. First, it is a
very common experience for drivers and passengers to unbuckle their safety belts
when a car comes to a stop off of a highway, and it presumably is not an everyday
experience for people to drink alcohol in a car that just pulled off or to the side of
a highway. It would seem unusual for someone to open an alcohol container only
after being pulled over by the police on a highway. Second, the open-container law
differs significantly from the seatbelt law. The open container law makes it an
offense when, among other things, a person possesses an open container of alcohol
“in a motor vehicle upon a highway” and does not expressly state that the vehicle
has to be operating or moving on the highway at the time. ORS 811.170(1)(b).
By contrast, the seatbelt law at issue here applies when a vehicle is “being operated” on the “highways.” ORS 811.210(1)(a)(H).
     8
       The state conceded in the trial court that, if the officer did not have sufficient cause to stop defendant, there was no basis to admit the evidence that
came from the ensuing consent search of defendant’s purse. The state had the
burden of proof in the trial court to show that defendant’s consent was voluntary and not an illegal exploitation of the previous illegal stop, but chose not
to attempt to meet it. See State v. Unger, 

, 

 (2014)
(stating that, when a defendant has established an illegal stop or search and
challenges the validity of a subsequent consent to search, the state bears the
burden of proving that the consent was voluntary and not a product of illegal
exploitation of the illegal stop or search). The state does not contend otherwise on
appeal.
472                                                         State v. Aguilar

         In sum, we reject defendant’s constitutional challenge to the trial court’s jurisdiction and conclude that her
conviction is not void. The trial court could conclude that
defendant knowingly waived her right to an indictment or
preliminary hearing. However, we conclude that the court
erred in denying defendant’s motion to suppress. We remand
this case to the trial court for further proceedings.
          Reversed and remanded.
          MOONEY, J., concurring.
        I agree with the majority’s rejection of defendant’s
challenge to the trial court’s jurisdiction, and I also agree
that the court erred when it denied defendant’s motion to
suppress. I concur in the result, but I write separately to
address officer training and experience as it relates to probable cause for a traffic violation.
          A police officer must develop probable cause to stop
a citizen for a traffic violation. State v. Gordon, 

, 

 (2015), rev den, 

 (2016).
Both the majority and the dissent agree that, in the context
of this traffic stop, and in the face of defendant’s motion to
suppress, the state was required to establish that the officer
had an objectively reasonable basis to believe that defendant
violated the seatbelt law when he stopped her. An officer’s
belief that a traffic violation “occurred is objectively reasonable if, and only if, the facts as the officer perceived them
actually satisfy the elements of a traffic infraction.” State
v. Tiffin, 

, 

 (2005) (emphasis
added). And an officer may issue a citation for a traffic violation only when it is committed in his or her presence or
when the officer has probable cause based on information
from another police officer who observed the violation. ORS
810.410(2).1 In interpreting the statutory predecessor to
ORS 810.410 (formerly ORS 484.353), the Oregon Supreme
   1
     ORS 810.410(2) provides:
       “A police officer may issue a citation to a person for a traffic violation at
   any place within or outside the jurisdictional authority of the governmental
   unit by which the police officer is authorized to act:
       “(a) When the traffic violation is committed in the police officer’s presence; or
Cite as 

 (2020)                                             473

Court stated that “[n]o logic supports an interpretation that
would authorize the officer to detain a person to investigate
a traffic infraction for which he or she could not issue a citation.” State v. Painter, 

, 

 (1984).
Although there have been several changes to the statute
since 1984, the Painter case has not been overruled and
none of the statutory changes would require a different conclusion about the scope of authority to detain to investigate
a traffic violation. It follows that a report from an ordinary
citizen, not trained as a law enforcement officer, would not
be sufficient for probable cause to support a traffic stop or
citation. On the other hand, police officers may stop a citizen for a criminal inquiry upon reasonable suspicion that
a crime has been, or is about to be, committed without the
requirement of observation by a police officer to support that
reasonable suspicion.
        Stops for traffic infractions require probable cause.
Stops for crimes require reasonable suspicion. Probable
cause requires more than reasonable suspicion. Traffic violations are less serious, and carry less onerous penalties,
than crimes. It should come as no surprise that those not
trained as lawyers—including law enforcement officers—
occasionally raise a brow when considering that the law
requires more to investigate less. Accepting that there are
good reasons for those differences, it is, in my view, worth
pausing to consider the role of police training, education,
and experience in the daily decisions officers make when
they stop and detain citizens, whether for traffic tickets or
for criminal conduct.
         The majority reminds us that, while an officer may
use his or her professional expertise to consider facts in
assessing probable cause or reasonable suspicion, he or she
is not permitted to create facts wholly out of that expertise.
In other words, the officer cannot make it up. The important
requirement of articulable facts cannot be overstated. And
the majority correctly reminds us in a footnote that there is
the risk in this country of disparate treatment of motorists

       “(b) When the police officer has probable cause to believe an offense has
   occurred based on a description of the vehicle or other information received
   from a police officer who observed the traffic violation.”
474                                           State v. Aguilar

who are people of color when police questioning is not carefully limited to the constitutionally permissible purpose of
the stop. And, finally, the dissent correctly reminds us that,
at the end of the day, facts may be established through circumstantial evidence.
         My agreement with today’s result lies in the legal
requirement for a traffic stop that a—or some—police officer
observe the conduct constituting a traffic violation. It could
be another officer reporting his or her observation to the officer initiating the stop—but the requirement of some observation of the underlying conduct is clear. The facts known to
the officer in this case did not include observing the conduct
that constituted the seatbelt violation. In fact, he did not
observe defendant at any time she could have been engaging
in the violation.
         The reason I write separately is to express departure from what I fear may be viewed as a trend to characterize police training and education as mere “intuition and
experience.” Our opinions should not be read to minimize
the importance of police training and experience. Especially
where, as here, the real problem is that a 10 to 12 second gap
between the car leaving the street and defendant being seen
without a seatbelt in a stopped car is not truly a matter that
can or should be resolved by expert police testimony. It is a
gap in time, a fact that can be equally judged by anyone—a
situation in which an officer has no expertise beyond that of
a lay witness describing what he or she observed.
         There is a danger in reading our opinions as if they
were critical of police training and education. If we are to
have any hope of reducing the danger of police profiling and
implicit bias that results in disparate treatment of motorists
based on the color of their skin, we should not discourage
the use of police expertise. The kind of change needed to
address racial bias in law enforcement work will not come by
asking officers to leave their training and education at the
station. It may come instead through the redesign of police
training programs that teach and cultivate competency in
the human dynamics of racial bias. Our opinions should not
be read to discourage that.
        Egan, C. J., joins in this concurrence.
Cite as 

 (2020)                               475

         ARMSTRONG, J., dissenting.
         I agree with the majority’s rejection of defendant’s
constitutional challenge to the trial court’s jurisdiction. But
for the reasons explained in this dissent, I conclude that the
trial court’s correctly denied defendant’s motion to suppress
and would therefore affirm the trial court’s judgment.
          Under Article I, section 9, of the Oregon Constitution,
probable cause requires facts which—viewed in the “totality
of the circumstances, including the officer’s training and
experience”—objectively establish that an individual more
likely than not has committed the offense. State v. Vasquez-Villagomez, 

, 

 (2009); see also State
v. Ratliff, 

, 

 (1986), aff’d, 

, 

 (1987) (“The significance of any of the
facts known to the officer may be enhanced by the officer’s
special knowledge of the way certain crimes are committed.”). The facts that Officer Michell observed were that,
just 10 seconds after he stopped the vehicle, defendant was
not wearing a seatbelt, and the passenger sitting next to
defendant in the back seat was wearing one. The fact that
Mitchell did not see, and that would be necessary to establish a seatbelt violation, was that defendant was not wearing a seatbelt when the vehicle was traveling on the highway. But facts can be established through circumstantial
evidence. See, e.g., State v. Bivins, 

, 

 (2004). The question here is whether Mitchell could
reasonably infer, based on seeing defendant not wearing a
seatbelt 10 seconds after the vehicle had been pulled over,
that defendant probably was not wearing a seatbelt when
the vehicle was moving on the highway, particularly when
the other rear-seat passenger was still wearing a seatbelt
and, in view of the time and location of the stop, there was
no reason for the passengers to expect to get out of the car
during the stop.
        An officer’s training and experience can provide
context for and bear on the inferences that may be drawn
from known or perceived facts. State v. Maciel, 

, 

 (2013) (“A police officer’s training
and experience are relevant considerations that bear on the
reasonable factual inferences that an officer may draw.”).
476                                              State v. Aguilar

Mitchell testified that he had made hundreds to thousands
of stops in his three years as a police officer and that, based
on his experience, he did not believe defendant’s statement
that she had just taken her seatbelt off. He inferred, from
the fact that defendant was not wearing a seatbelt when
the car had stopped, that defendant had not been wearing a
seatbelt when the car was travelling:
   “Based on my experience … in traffic stops, … the normal person or reasonable person doesn’t pop off their seatbelt right away when getting stopped by the police.
      “…
      “… I never see anyone take their seatbelt off as I’m
   walking up to the vehicle or—and they’re taking their seatbelt off. The only time in my experience that someone does
   that if, hey, I need to reach over here for this document or
   that and they take off their seatbelt to reach over. It’s—just
   doesn’t happen.”
I would conclude that Mitchell reasonably could draw the
inference, based on the specific and articulable facts that he
had observed and considered in the light of his experience
and the surrounding circumstances, that defendant probably had not been wearing her seatbelt when the vehicle in
which she was traveling was moving on the highway. See
State v. Farrar, 

, 

 (2012)
(describing objective standard).
         Contrary to the majority’s characterization, I do not
rely on Mitchell’s testimony regarding his experience to supply a new fact, 307 Or App at 469-71, but only to provide context for and support the reasonable inferences that Mitchell
could make from the facts that Mitchell had observed—viz.,
defendant not wearing a seatbelt just ten seconds after the
car in which she was riding had been pulled over when the
passenger sitting next to her was still wearing a seatbelt.
Mitchell’s acknowledgment of the possibility that, consistent
with her statement, defendant had just taken off her seatbelt did not negate probable cause. See State v. Foster, 

, 

 (2011) (observation made by officer
that is consistent with prohibited conduct “does not have to
eliminate any possibility of an innocent explanation to provide probable cause”).
Cite as 

 (2020)                             477

         I would conclude that the facts that Mitchell had
observed were sufficient to develop an objectively reasonable
belief that, more likely than not, defendant had not been
wearing a seatbelt while the vehicle was travelling. There
was no requirement for probable cause that the officer actually observe the violation. I would conclude that the totality of the circumstances established an objectively reasonable basis for Mitchell’s conclusion that defendant had more
likely than not committed a seatbelt violation, and that the
court therefore did not err in denying defendant’s suppression motion. The majority’s contrary conclusion cannot be
reconciled with the use that can be made of circumstantial
evidence to find a fact in this or any other case. I therefore
dissent.
        DeVore and Tookey, JJ., join in this dissent.