563
Submitted August 17, affirmed November 2, 2022, petition for review denied
March 30, 2023 (370 Or 827)
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHERRY KAY SULLIVAN,
Defendant-Appellant.
Polk County Circuit Court
19CR80246; A174938
520 P3d 911
Defendant appeals from a judgment of conviction for driving with a revoked
license, ORS 811.182. She assigns error to the trial court’s denial of her motion
to suppress evidence. A deputy stopped defendant after a license plate check
revealed that the vehicle that defendant was driving was not registered, which
is a traffic violation. Defendant contends that the deputy did not have probable
cause for the stop because it was not objectively reasonable for the deputy to
believe that defendant owned the unregistered vehicle. Held: The deputy’s subjective belief—that the driver of the vehicle more likely than not was also the
owner—was objectively reasonable under the circumstances. Accordingly, the
trial court did not err.
Affirmed.
Diane Morse, Judge pro tempore.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna Belais, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
POWERS, J.
Affirmed.
564 State v. Sullivan
POWERS, J.
Defendant appeals from a judgment of conviction for
driving with a revoked license. She assigns error to the trial
court’s denial of her motion to suppress evidence that was
obtained during a traffic stop, arguing that the stop was not
supported by probable cause. A deputy stopped defendant
after a license plate check revealed that the vehicle that
defendant was driving was not registered, which is a traffic
violation. Defendant contends that the deputy did not have
probable cause for the stop because it was not objectively
reasonable for the deputy to believe that defendant owned
the unregistered vehicle. As explained below, we conclude
that the deputy’s subjective belief—that the driver of the
vehicle was also the owner of the vehicle—was objectively
reasonable under the circumstances. Accordingly, because
the trial court did not err, we affirm.
We review questions of law, including whether there
was sufficient probable cause to conduct a stop for a traffic
violation, for legal error. State v. Hughes, 311 Or App 123,
124,
488 P3d 795 (2021). In so doing, we are bound by the
trial court’s findings of historical fact, provided that there is
constitutionally sufficient evidence in the record to support
those findings. State v. Ehly,
317 Or 66, 75,
854 P2d 421 (1993).
We state the facts accordingly.
Polk County Sherriff’s Deputy Shorter was on
Highway 22 crossing the Marion Street Bridge and running
vehicle license plates. Defendant drove in front of Shorter,
who “ran” defendant’s license plate. The search returned
“Flag 49,” a DMV code that indicated that the vehicle had
been sold and the new owner had failed to register it. The
code showed that the sale of the vehicle occurred more than
a year ago, but that it had not been registered following the
sale. Based on that information, Shorter believed that the
driver had failed to register the vehicle in violation of ORS
803.300.1 Shorter followed the vehicle until it was safe to
initiate a traffic stop.
1
ORS 803.300 provides:
“(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.
Cite as 322 Or App 563 (2022) 565
During the stop, defendant, who was driving, handed
Shorter her Oregon ID card and explained that she did not
have insurance on the vehicle and that her driver’s license
was revoked. Defendant also told Shorter that she bought
the vehicle two weeks earlier and had not yet registered
it. Shorter cited defendant for driving while suspended or
revoked under ORS 811.182.
Before trial, defendant filed a motion to suppress all
evidence obtained from the traffic stop. At the suppression
hearing, defendant argued that, prior to the stop, Shorter
lacked any information suggesting that defendant was the
owner of the unregistered vehicle and, thus, in violation of
ORS 803.300. The trial court denied the motion, expressly
finding that Shorter did not know who was driving the
vehicle but concluding that it was more probable than not
that the person driving the vehicle was the owner of the
vehicle. Defendant then entered a conditional guilty plea to
the charge of driving while revoked, reserving her right to
appeal the denial of her motion to suppress.
On appeal, defendant contends that the stop violated
Article I, section 9, of the Oregon Constitution, renewing
her argument that Shorter lacked probable cause to initiate
the traffic stop. Recognizing that the Flag 49 code informed
Shorter that the vehicle was unregistered, defendant argues
that, nonetheless, Shorter lacked probable cause because he
did not know that defendant was the owner who had failed
to register it.
To conduct a stop for a traffic violation, Article I,
section 9, requires that an officer have probable cause to
believe that a violation occurred. State v. Ankeny, 306 Or
App 300, 302,
474 P3d 406 (2020). Probable cause exists
where an officer subjectively believes that it is more likely
than not that an offense occurred and where that belief is
objectively reasonable. State v. Sanchez-Anderson,
300 Or
App 767, 773,
455 P3d 531 (2019). Here, defendant does not
contest the validity of Shorter’s subjective belief; rather, the
“…
“(3) Exemptions from this section are established under ORS 803.305.
“(4) The offense described in this section, failure to register a vehicle, is
a Class D traffic violation.”
566 State v. Sullivan
issue is whether Shorter’s subjective belief—that the person
driving the vehicle more likely than not was the owner who
failed to register it—was objectively reasonable.
To determine whether an officer’s belief was objectively reasonable, we consider the totality of the circumstances presented to the officer and reasonable inferences
that may be drawn from those circumstances. See, e.g.,
State v. Keller, 280 Or App 249, 253,
380 P3d 1144 (2016) (so
stating). Importantly, no single factor is dispositive.
Id. For
traffic infractions, an officer’s subjective belief 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,
202 Or App 199, 204,
121 P3d 9 (2005).
In this case, Shorter stopped defendant based on a
belief that defendant failed to register a vehicle under ORS
803.300(1), which provides: “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.” Thus, Shorter’s belief was objectively reasonable
if, and only if, the facts as perceived by Shorter satisfied the
elements of ORS 803.300(1).
Defendant contends that the two critical elements of
ORS 803.300(1) are that (1) the person own the vehicle and
(2) the person does not register the vehicle. Because the trial
court found that Shorter did not know whether defendant
owned the vehicle that she was driving, defendant argues
that the facts perceived by Shorter did not satisfy the first
element. We conclude that Shorter’s belief was objectively
reasonable; thus, the state established that Shorter had
probable cause, and the trial court did not err in denying
defendant’s suppression motion.
First, in probable cause determinations, the objective component does not require that officers “eliminate all
possible lawful explanations for conduct that reasonably
appears to violate the law.” Miller v. Columbia County, 282
Or App 348, 358,
385 P3d 1214 (2016) (citation and internal
quotation marks omitted). Shorter saw defendant driving
the vehicle in front of him, and, after running the plates,
learned that the vehicle had not been registered for over a
Cite as
322 Or App 563 (2022) 567
year. Given these circumstances, the trial court correctly
concluded that it is more probable than not, that the person
driving the vehicle is the owner of the vehicle. It was a possibility, of course, that defendant was driving a vehicle that
she did not own. But the probable cause standard does not
require that Shorter eliminate all possible lawful explanations, including the possibility that defendant was driving
a vehicle owned by someone else who did not register it as
required by ORS 803.300. In our view, without facts indicating otherwise, it is objectively reasonable to believe that the
driver of a vehicle is the owner. Thus, both critical elements
of ORS 803.300—that the person own the vehicle and that
the vehicle be unregistered—were satisfied by an objective
belief that defendant was the owner of the vehicle and had
committed a traffic violation.2
Second, as the state’s argument advances on appeal,
we have already held that an officer who learns that a vehicle is unregistered has probable cause to stop that vehicle.
State v. Hayes, 99 Or App 387, 389,
782 P2d 177 (1989),
rev den,
309 Or 441 (1990). Although not explicit, we used
a probable cause standard in Hayes to conclude that, on
nearly identical facts, it was objectively reasonable for the
officer to believe that the defendant committed a traffic violation.
Id. In that case, the officer “ran a radio check” on the
license plate of the defendant’s vehicle, and the “response
indicated that the vehicle might not be properly registered.”
Id. Failure to properly register the vehicle was a violation
under ORS 803.300, the same violation as in this case. We
concluded that “the information that the officer had just
before the stop gave him a reasonable basis for a belief that
defendant’s vehicle was not properly registered.”
Id.
Although we did not explicitly use the term “probable cause” and used language more akin to a determination
of reasonable suspicion, we nevertheless understand Hayes
to apply the probable cause standard. See Tiffin, 202 Or App
2
Although not a factor when considering whether the deputy’s subjective
belief is objectively reasonable, we note that, in the case of an unregistered vehicle, deputies are limited in their ability to determine who the owner of the vehicle
is. Thus, a conclusion that would require officers to eliminate the possibility that
someone other than the owner is driving an unregistered vehicle would make
enforcement of ORS 803.300 nearly impossible.
568 State v. Sullivan
at 203 (confirming that we held that the officer in Hayes
“had probable cause to stop the vehicle”). Notably, Hayes is a
mistake of fact case, viz., that the officer mistakenly believed
that the defendant’s car was not properly registered, when
in fact it was. See Hayes, 99 Or App at 389. Therefore, much
of the analysis in that case concerns whether an officer still
has probable cause when that officer is mistaken as to the
facts—we concluded that the officer still does.
Id.
In this case, we face no such hurdle because the circumstances observed by Shorter were not complicated by a
mistake of fact. That is, the vehicle was unregistered, and
defendant was the owner. More instructive, then, are the
similarities in the circumstances perceived by the officers in
both Hayes and in this case: both encountered a vehicle on
the road, both ran a license plate check, and both received
information that the vehicle was not properly registered.
In Hayes, we concluded that that was sufficient to establish
probable cause to make a stop. The same is true here.
Defendant next contends that, in believing that
defendant owned the vehicle that she was driving, Shorter
“add[ed] a fact,” which is impermissible under State v. Aguilar,
307 Or App 457, 469,
478 P3d 558 (2020). In Aguilar, during
a vehicle stop, the officer did not observe that the defendant
was not wearing her seatbelt until after he approached the
vehicle.
307 Or App at 463. The defendant explained that
she had been wearing the seatbelt but removed it after the
stop.
Id. at 464. The officer rejected that explanation based
solely on his experience that “normal” people do not take
their seatbelts off right away when they’re stopped by the
police.
Id. at 464-65. We explained that “the only observation that [the officer] 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.”
Id. at 468.
Accordingly, we held that, without any evidence in the record
to the contrary, the officer could not rely on experience alone
to reject the defendant’s explanation as to why her seatbelt
was off when he approached.
Id. at 470-71.
This case is readily distinguishable. Unlike the officer in Aguilar, Shorter did not rely on experience to reject
Cite as 322 Or App 563 (2022) 569
an explanation from defendant. Rather, Shorter observed
a circumstance that indicated that a traffic violation had
been committed: The vehicle that he was following off of the
Marion Street Bridge was not registered. At issue is whether
Shorter’s subjective belief—that defendant was the owner of
the vehicle that she was driving—was objectively reasonable. As discussed above, we conclude that Shorter’s belief
was objectively reasonable and nothing about the holding in
Aguilar undermines that conclusion.
Finally, defendant points to Kansas v. Glover, 589
US ___,
140 S Ct 1183,
206 L Ed 2d 412 (2020), and argues
that the facts on the record are, at most, sufficient to show
reasonable suspicion but not probable cause. In Glover, a
deputy ran a vehicle’s license plates and found that the registered owner of the vehicle had a revoked driver’s license.
589 US at ___,
140 S Ct at 1187. Because driving with a
revoked license was considered a criminal infraction, the
officer needed only reasonable suspicion, rather than probable cause, to conduct a traffic stop.
Id. at ___,
140 S Ct at
1188. The officer made the stop, inferring that the registered owner of the vehicle was the person driving.
Id. at ___,
140 S Ct at 1187. The Court held that these facts “provided
more than reasonable suspicion to initiate the stop.”
Id. at
___,
140 S Ct at 1188.
Defendant argues that, because Glover used a reasonable suspicion standard in a factually similar circumstance, a holding that probable cause existed in this case
would be contrary to Glover. We are unconvinced by defendant’s argument for two reasons. First, there are important
factual distinctions between this case and Glover. Critical to
the analysis in Glover was that the driver was unlicensed,
and the Court spent significant time addressing the reasonableness of an officer’s assumption that an unlicensed
person would drive. Id. at ___,
140 S Ct at 1188-89, 1192.
Shorter, on the other hand, knew only that the vehicle was
unregistered in violation of ORS 803.300; he did not have
to make an assumption that a person would still be driving with a revoked license. Further, the vehicle in Glover
was properly registered. Therefore, unlike Shorter, the
officer in Glover had to rely entirely on inference to believe
that a crime or traffic infraction had occurred. Here, the
570 State v. Sullivan
unregistered status of the vehicle informed Shorter that a
traffic infraction had occurred. The inference that Shorter
made, then, involved only whether defendant was the person
who committed that infraction. As we have explained above,
Shorter’s belief was objectively reasonable.
Second, we do not understand Glover to imply anything about probable cause—or the lack thereof—in cases
involving traffic stops of unregistered vehicles. Although it
is true that reasonable suspicion presents a lower standard
than probable cause, it does not necessarily follow that,
because there was reasonable suspicion in Glover, there cannot be probable cause in this case. Accordingly, we reject
defendant’s reliance on Glover to support her claim that
Shorter stopped her without probable cause.
Affirmed.
