State v, Rabanales-Ramos

A police officer does not have probable cause to perform a traffic stop under ORS 811.507 when that officer has only observed a driver looking at a lighted device intermittently over a period of ten seconds, and the officer does not observe the driver to be pushing buttons, talking, or holding the phone to the ear.

The State appeals the trial court's grant of Defendant's motion to suppress evidence obtained during a traffic stop. A police officer (Officer) stopped Defendant for driving while using a cell phone, and, during the stop, became suspicious that Defendant was driving under the influence of intoxicants (DUII). Officer arrested Defendant, and the State charged Defendant with felony DUII. The trial court granted Defendant's motion to suppress evidence gained during the traffic stop, because Officer did not have probable cause to initiate the stop because Officer was not objectively reasonable in believing that the device could only be a cell phone, and because Officer did not see Defendant use the device or speak into the device, and ORS 811.507 does not prohibit a driver from merely looking at an electronic device or cell phone. On appeal, the State argued that Officer had probable cause to stop Defendant under ORS 811.507 for use of a cell phone while driving because, based on Officer's experience and training, he had probable cause to believe that the device was a cell phone and that Defendant was more likely than not using the phone for a prohibited action. Defendant responds that Officer's belief was not objectively reasonable, as the device could have been any electronic device, and ORS 811.507 only prohibits uses of a cell phone for communicative purposes. The Court reviewed the pertinent legislative history, and determined that ORS 811.507 is intended to prohibit use of a mobile communications device for the purpose of voice or text communication. The record reflects that Officer only observed Defendant looking at the device intermittently over a period of 10 seconds, therefore, Officer did not have probable cause to stop Defendant. Affirmed.