State v. Williams

364                  October 2, 2024               No. 706

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
           KYLE CHRISTOPHER WILLIAMS,
                 Defendant-Appellant.
            Washington County Circuit Court
                 21CR48431; A180317

  Brandon M. Thompson, Judge.
  Submitted June 12, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Bruce A. Myers, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kyleigh Gray, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
   Portion of judgment imposing attorney fees reversed;
otherwise affirmed.
Nonprecedential Memo Op: 

 (2024)                   365

         HELLMAN, J.
         Defendant appeals a judgment of conviction for
driving under the influence of intoxicants (DUII), ORS
813.010(4). The judgment also imposed $400 in attorney
fees. On appeal, defendant raises two assignments of error.
He first assigns error to the denial of his motion to suppress evidence, arguing that the law enforcement officer
who stopped him did not have reasonable suspicion that
defendant was driving under the influence of intoxicants,
and that, therefore, the stop was unlawful. Based on the
evidence in the suppression hearing record, the sergeant
observed specific and articulable facts sufficient to give rise
to reasonable suspicion. We affirm on that assignment of
error. In addition, defendant assigns error to the imposition
in the judgment of $400 in attorney fees. He argues that
the trial court plainly erred by imposing those fees without
determining his ability to pay. The state concedes the error.
We accept the state’s concession, exercise our discretion to
correct the error, and reverse the portion of the judgment
imposing $400 in attorney fees.
         Motion to suppress. Defendant argues that the trial
court erred in denying his motion to suppress because there
had to be evidence of specific articulable facts that he was
impaired to a “perceptible degree,” and that such evidence
could not be based merely on the sergeant’s training and
experience. That is, defendant contends that the sergeant
had to make some observation of impaired physical or mental faculties, or other then-existing manifestation of defendant being “under the influence,” before the sergeant could
lawfully stop him. We disagree with defendant’s argument.
         We review the denial of a motion to suppress for
errors of law, and we are bound by the trial court’s findings
of historical fact “if there is constitutionally sufficient evidence in the record to support those findings.” State v. Ehly,

, 

 (1993). As we previously held:
   “An officer does not need certainty or even probable cause,
   but only a reasonable suspicion, to support an investigation.
   The possibility that there may be a non-criminal explanation for the facts observed or that the officer’s suspicion will
366                                                        State v. Williams

    turn out to be wrong does not defeat the reasonableness of
    the suspicion.”
State v. Acuna, 

, 169 n 4, 

,
rev den, 

 (2014) (brackets and internal quotation
marks omitted).
         Here, the sergeant saw defendant, in the lane
directly adjacent to his patrol vehicle, use a glass pipe and
a “butane torch” in a way that the sergeant’s training indicated that defendant was smoking methamphetamine. The
sergeant further testified that, in his training and experience, smoking methamphetamine would have an instantaneous effect” on defendant. The sergeant did not need
further evidence to establish a reasonable suspicion that
defendant committed or was about to commit a crime. He
had both objective and subjective reasonable suspicion that
defendant was committing or was about to commit DUII
such that the sergeant could stop defendant to investigate
further.1 Thus, the trial court did not err when it denied
defendant’s motion to suppress the evidence gathered after
defendant was stopped. We therefore affirm on defendant’s
first assignment of error.
         Attorney fee award. In defendant’s second assignment of error, he argues that the trial court plainly erred
when it imposed $400 in attorney fees without first determining his ability to pay. There is no evidence in the record that
defendant is able or may be able to pay the fees in the future.
See ORS 151.505(3) (“The court may not require a person to
pay costs under this section unless the person is or may be
able to pay the costs”); ORS 161.665(4) (“The court may not
sentence a defendant to pay costs under this section unless
the defendant is or may be able to pay them.”). “[B]ecause
a court ‘cannot impose fees based on pure speculation that
    1
      We note that we have determined on multiple occasions that an officer had
reasonable suspicion in the converse circumstances—when an officer observes
driving that gives rise to an inference that the driver is impaired. See, e.g., State
v. Shupe, 

, 

 (2016), overruled in part on other
grounds by State v. Serbin, 

, 

 (2023) (“We previously
have concluded—on several occasions—that a police officer’s observation of a
vehicle weaving in its own lane provides a sufficient basis to reasonably believe
that the driver of the vehicle is operating the vehicle under the influence and to
stop the vehicle for further investigation.”). The officer need not have observed
the driver drinking alcohol or using drugs.
Nonprecedential Memo Op: 

 (2024)            367

a defendant has funds to pay the fees or may acquire them
in the future,’ … the trial court plainly erred in imposing
attorney fees.” State v. Ramirez-Hernandez, 

, 

 (2014) (quoting State v. Pendergrapht, 

, 

 (2012)). The state concedes
that the error is plain and acknowledges that we typically
exercise our discretion to correct that type of error. We agree
with and accept the state’s concession, and we exercise our
discretion to correct the error because the fees are a substantial amount and because there is no evidence concerning defendant’s ability to pay any amount.
        Portion of judgment imposing attorney fees reversed;
otherwise affirmed.