State v. Vannoy ( 2023 )

No. 255 May 17, 2023 11
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHERRY LYNN VANNOY,
Defendant-Appellant.
Harney County Circuit Court
20CR15072; A175797
Robert S. Raschio, Judge.
Argued and submitted October 4, 2022.
Stacy Du Clos, 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.
Colm Moore, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
Reversed and remanded.
12 State v. Vannoy
Cite as 326 Or App 11 (2023) 13
SHORR, P. J.
Defendant appeals from a judgment convicting her
of one count of unlawful possession of methamphetamine, a
Class A misdemeanor.1 She assigns error to the trial court’s
denial of her motion to suppress evidence, arguing that she
was unlawfully stopped without reasonable suspicion of a
crime. For the reasons that follow, we agree that defendant
was unlawfully stopped, and therefore reverse and remand.
We review a trial court’s denial of a motion to sup-
press for legal error. State v. Prouty, 312 Or App 495, 496,
492 P3d 734 (2021). In so doing, we are bound by the trial
court’s findings of fact so long as there is constitutionally
sufficient evidence in the record to support them. Id. To the
extent that the court failed to make express findings on
pertinent historical facts, we presume that the court found
those facts in a manner consistent with its ultimate con-
clusion. Id. We take the facts from the record made at the
hearing on defendant’s motion to suppress.
Around 4:30 p.m. in the afternoon on a day in
November 2019, Officer Held with the Oregon State Police
was on Highway 20 in Harney County when he observed
a van traveling over the posted speed limit. He activated
his lights and initiated a traffic stop. Upon approaching the
window and making contact with the driver, Held “[i]mme-
diately * * * smelled a strong odor of marijuana emitting
from inside the vehicle.” Defendant was in the front passen-
ger seat and Held recognized her as a local. Held asked for
the driver’s license, as well as the rental vehicle documenta-
tion upon learning that the vehicle was rented. The driver
provided those documents. Held might have also “conversed
with [defendant] a little bit” about family she had in the
area.
At that point, however, Held stopped processing the
traffic stop and began “investigating the marijuana pos-
session” by asking “how much marijuana was inside the
vehicle.” Held asked about the amount specifically because
1
Defendant was convicted under ORS 475.894(2)(a) (2019), amended by Or
Laws 2021, ch 2, § 17; Or Laws 2021, ch 591, § 39. Today that same conduct con-
stitutes a Class E violation. ORS 475.894(2)(a).
14 State v. Vannoy
“there are numerous marijuana laws, and they’re all weight-
dependent.” The driver told Held that he had “approximately
an ounce,” and Held asked “if [he] could see it.” Held testi-
fied that he asked to see it because “not everybody tells the
truth, especially if they’re marijuana-savvy, they’ll say an
ounce because they know they can have an ounce,” and also
because of “the strong odor. I wasn’t able to tell where that
odor was coming from within the vehicle or that there could
be more. I can’t smell weight. I could just smell that it was
strong.”
The driver exited the van and walked to the rear
of the vehicle, where he retrieved what Held “estimated as
an approximately gallon-sized plastic bag containing mari-
juana.” Based on Held’s training and experience, he esti-
mated that the bag contained approximately two ounces.
Held testified that the marijuana odor was not noticeably
stronger at the rear of the vehicle, and that he suspected
that there could be more marijuana or “contraband” in the
vehicle because, in his experience, “very rarely do you just
find green marijuana. There’s also the accompanying con-
traband, like pipes, grinders, packaging material, joints,
that sort of thing.” At the time, it was a Class B violation to
possess more than one ounce but not more than two ounces
of usable marijuana in a public place and a Class B mis-
demeanor to possess more than two ounces but not more
than four ounces of usable marijuana in a public place, with
additional increasing penalties for larger amounts. See for-
mer ORS 475B.337 (2019), renumbered and amended as ORS
475C.337 (2021).2
Held explained to the driver “why [he] thought it
was two ounces” and asked to search the vehicle. The driver
consented. Held testified that, by this time of the stop, he
2
Held testified that when marijuana paraphernalia is “coupled with an ille-
gal amount of marijuana,” he considers it “contraband.” We note that, although
possession of certain amounts of marijuana was and is illegal, possession of
marijuana “contraband” or paraphernalia for personal use is not. Cf. former ORS
475B.376 (2017), renumbered as 475C.373 (2021) (defining Class B violation of sell-
ing or delivering “marijuana paraphernalia” to a person under 21 years of age);
ORS 475.525 (prohibiting the sale or delivery of “drug paraphernalia” intended
for use with “controlled substances”); ORS 475.005(6)(b) (explicitly excluding can-
nabis products from the definition of “[c]ontrolled substance[s]”).
Cite as 326 Or App 11 (2023) 15
believed he had probable cause to search “the entire vehicle
and its contents,” including defendant’s possessions.
Although Held had not had “very much” interaction
with defendant by this point, he now turned to her and asked
“about marijuana.” Held did so because “it would be almost
near impossible to tell where the odor was coming from
inside the vehicle, so it was reasonable to think that being
that she was in the [van], she would have some belongings
that could hold marijuana.” Defendant presented him with
a small sandwich bag containing marijuana that he esti-
mated to be approximately an ounce. Held then asked defen-
dant to step out of the van so he could conduct his search.
When asked by counsel at the hearing whether defendant
was free to leave at that point in time, Held testified that
“[i]f she would have asked to go, then at that point, I would
have had to make a decision if she was free to go or not, but
she never asked to leave.” When asked to clarify whether
defendant would have “need[ed] to ask before she left the
scene,” Held responded that
“I don’t think I’ve ever ran into the situation where—I’ve
run into the situation where passengers have asked to
leave, and there wasn’t reason to stop them, and so I let
them go. I don’t know—it’s hard to say. I’ve never been in
that situation where somebody just left.”
Held began searching the vehicle and located a
small handbag under the passenger seat where defendant
had been seated. He did not “put the bag to [his] nose” or
smell the odor of marijuana emanating from the bag, as at
that time, “[a]ll [he] could smell was marijuana emitting
from inside of the van.” He asked defendant if it was her
bag, and she confirmed that it was. Held asked if he could
look in the bag, and she said yes. Inside the handbag, Held
discovered a capped syringe, plastic straw, clear plastic bag,
and pipe that were later confirmed to contain methamphet-
amine residue. Held did not end up writing a traffic citation
or seizing any marijuana.
Defendant was charged with unlawful possession of
methamphetamine and moved to suppress the evidence and
statements obtained during the traffic stop. At the hearing
16 State v. Vannoy
on the motion, Held testified to the facts above. No other
evidence of the stop was presented at the hearing.
Defendant argued that she had been stopped with-
out reasonable suspicion at least by the time she was asked
to consent to a search of her bag. As a result, she contended,
her consent was the product of that earlier constitutional
violation. In response, the state argued that the odor of
marijuana alone provided Held with reasonable suspicion to
question defendant regarding marijuana. The state relied
in large part on our opinion in State v. Vennell, 274 Or App
94, 98-99, 359 P3d 1255 (2015), rev den, 358 Or 529 (2016),
which held that “a strong odor of marijuana emanating from
a person” can supply reasonable suspicion that the person is
carrying a large amount of marijuana and therefore com-
mitting a weight-dependent marijuana possession crime.
The trial court denied the motion, concluding that
defendant was not stopped during the interaction but that,
nevertheless, Held had reasonable suspicion to investigate
defendant. Citing to Vennell, the court concluded that the
strong odor of marijuana provided Held with reasonable
suspicion of a marijuana crime, and reasoned that, because
the odor was throughout the vehicle and not clearly tied to
just the driver or the trunk, it was reasonable for Held to
suspect that there was more marijuana in the vehicle and to
investigate further. Defendant proceeded to a jury trial and
was convicted of one count of unlawful possession of meth-
amphetamine. This timely appeal followed.
On appeal, defendant assigns error to the trial
court’s denial of her suppression motion. Specifically, defen-
dant renews her argument that she was stopped—at least by
the point of the interaction when Held requested her consent
to the search of her bag—in large part because Held’s mari-
juana investigation was directed at all occupants of the van
and not the driver alone. Defendant likens Held’s inquiry
“about marijuana” to the facts in State v. Almahmood, 308
Or App 795, 804, 482 P3d 88 (2021), where we concluded
that an officer’s “non-negotiable command” that a person
“establish that he had not committed a crime” effectuated a
stop because reasonable people “would not expect that they
could refuse” such a command.
Cite as 326 Or App 11 (2023) 17
Defendant further argues that Held did not have
reasonable suspicion to investigate defendant for a mari-
juana crime based only on the odor of marijuana, citing our
recent cases such as State v. Moore, 311 Or App 13, 21, 488
P3d 816 (2021) (“given the legality of an adult possessing
some amount of marijuana in Oregon, the smell of mari-
juana in a car in which an adult is present is no longer
remarkable”; thus, “the smell of marijuana, without more,
does not support a reasonable suspicion that defendant pos-
sessed an unlawful amount of marijuana” (emphasis in orig-
inal)). The state concedes that Held lacked reasonable suspi-
cion to investigate defendant, acknowledging that our court
has “severely undermined or effectively overturned” Vennell
in the time since the suppression hearing. The state instead
argues that defendant was never stopped, because a reason-
able person in defendant’s position would have understood
that the investigation was focused on the driver rather than
her.
We accept the state’s concession that Held lacked
reasonable suspicion to investigate defendant for a mari-
juana crime. See Moore, 311 Or App at 22. Thus, we proceed
to consider the only remaining issue: whether defendant was
seized when Held stopped the van she was traveling in as
a passenger; investigated the driver for marijuana crimes;
asked defendant “about marijuana” and inspected her sand-
wich bag of marijuana; asked defendant to exit the vehicle
so he could search it for more marijuana; and, finally, asked
for her consent to the search of her handbag. On these facts,
we conclude that defendant was indeed seized.
Under Article I, section 9, of the Oregon Constitution,
“a seizure occurs when (1) a police officer intentionally and
significantly interferes with an individual’s liberty or free-
dom of movement; or (2) a reasonable person, under the total-
ity of the circumstances, would believe that his or her liberty
or freedom of movement has been significantly restricted.”
State v. Arreola-Botello, 365 Or 695, 701, 451 P3d 939 (2019).
“[S]omething more than just asking a question, request-
ing information, or seeking an individual’s cooperation is
required,” as mere requests where “the officer does no more
than seek the individual’s cooperation through noncoercive
18 State v. Vannoy
questioning and conduct” do not implicate Article I, sec-
tion 9. State v. Backstrand, 354 Or 392, 403, 417, 313 P3d
1084 (2013). Still, it is possible “to restrict a person’s liberty
and freedom of movement by purely verbal means.” State v.
Ashbaugh, 349 Or 297, 317, 244 P3d 360 (2010). “A verbal
encounter rises to the level of a seizure when the content of
the questions, the manner of asking them, or other actions
that the police take (along with the circumstances in which
they take them) would convey to a reasonable person that
the police are exercising their authority to coercively detain
the citizen.” State v. Reyes-Herrera, 369 Or 54, 58, 500 P3d 1
(2021) (internal quotation marks omitted). Put another way,
our inquiry is whether the circumstances combined would
reasonably be construed as “a show of authority requir-
ing compliance with the officer’s request.” State v. Bryars,
319 Or App 464, 471, 510 P3d 261 (2022). We consider the
effect of all the circumstances combined “even if the circum-
stances, individually would not create a seizure.” State v.
Newton, 286 Or App 274, 280, 398 P3d 390 (2017). There
is no bright line between a noncoercive conversation and a
more restrictive one that effectuates a stop. Reyes-Herrera,
369 Or at 67. “[A] slight difference in circumstances could
make what was considered a nonrestrictive encounter in one
case a stop in another.” Id.
When the interaction at issue involves a passen-
ger in a traffic stop, one additional principle mediates our
analysis. We have explained that “[p]assengers in a stopped
vehicle are not seized merely by virtue of their status as pas-
sengers.” Prouty, 312 Or App at 501. That is because, gener-
ally, “the passengers in a car stopped for a traffic or crimi-
nal offense would not understand that the officer’s show of
authority in stopping the driver extended to them.” State
v. Payne, 310 Or App 672, 678, 487 P3d 413, rev den, 368
Or 514 (2021). Instead, some further show of authority must
extend to or be directed at the passenger specifically, such
that a reasonable person would understand that “the officer
was independently restricting their movement apart from
the stop of the driver.” Id.We apply those principles to this case. As explained
above, the state argues that Held’s words and actions only
effected a stop of the driver and that a reasonable person in
Cite as 326 Or App 11 (2023) 19
defendant’s position would not have understood that the stop
extended to them. Indeed, some facts in the record support
that view. Until Held asked for defendant’s consent to search
the handbag, his inquiries were largely directed toward the
driver—his interactions with defendant were limited to
exchanging some words with her about her family in the
area, asking her “about marijuana,” and, finally, asking her
to exit the van so he could search it pursuant to the driver’s
consent. We agree that, when considered individually, those
interactions were relatively benign. Held’s inquiries about
defendant’s “family in the area” was no more than mere con-
versation, and a reasonable person would have understood
that Held’s request that defendant exit the van was related
to his impending search and not an effort to detain her. See,
e.g., State v. Orman, 322 Or App 707, 718, 521 P3d 506 (2022)
(noting that an officer’s request that a passenger step out
of a vehicle so that the officer can begin searching it does
not alone effectuate a seizure). Even Held’s inquiries “about
marijuana,” at least on this sparse record, did not accuse
defendant of a crime or otherwise demand her cooperation.
See Backstrand, 354 Or at 403 (“something more than just
asking a question, requesting information, or seeking an
individual’s cooperation is required”).
However, we conclude that this is a case where the
totality of the circumstances combined to form a more coer-
cive atmosphere than the sum of its parts, such that when
considered together, a reasonable person in defendant’s situ-
ation would not have felt free to leave. The interaction began
when Held initiated a traffic stop of the van in which defen-
dant was a passenger, and although Held’s initial inquiries
regarding the driver’s license and rental vehicle documenta-
tion appear to have been related to traffic enforcement, the
nature of the stop quickly shifted as Held asked “how much
marijuana was inside the vehicle.” (Emphasis added.) That
question is significant because it requested information that
implicated all occupants of the vehicle. Held then asked if he
could see the driver’s marijuana, inspected it, told the driver
that he believed the bag contained two ounces, and finally
requested, and received, the driver’s consent to search the
vehicle. Like Held’s initial question regarding the amount
of marijuana in the vehicle, he continued to focus on the
20 State v. Vannoy
vehicle as he questioned the driver. That sequence of events
made clear that Held believed the van contained an unlaw-
ful quantity of marijuana and was not satisfied that he had
yet seen all of it.
Viewed in that context, by the time Held directed
his attention to defendant and asked her “about marijuana,”
inspected the marijuana she presented, asked her to get out
of the van, and, finally, asked for her consent to the search
of her bag, a reasonable person in defendant’s position
would have understood that she was just as much a subject
of Held’s criminal investigation as the driver and could not
simply choose to walk away. We have explained that an offi-
cer effectuates a stop when the officer asks a person to prove
that they are not violating the law, such as by showing proof
of appropriate identification or authorization. Almahmood,
308 Or App at 804 (concluding that a reasonable train pas-
senger would not feel free to refuse a police officer’s command
to show proof of payment). Although the facts of this case
are different from those presented in Almahmood, Held’s
questions had a similar effect. Held demanded proof that
the van did not contain an unlawful amount of marijuana,
and upon discovering evidence that the driver possessed
an unlawful amount, demanded proof that there was not
additional marijuana in the van by requesting and obtain-
ing content to search it. At least by the point in time when
Held requested defendant’s consent to the search of her bag,
the obvious implication of the circumstances as a whole was
that Held also required proof that defendant specifically did
not possess an unlawful quantity of marijuana. That impli-
cation was compounded by the fact that, by that point of the
encounter, Held had already asked defendant “about mari-
juana” and inspected the lawful amount she presented. In
asking to search her purse after that exchange, Held made
clear that he did not believe her that she had produced all
the marijuana in her possession. See Reyes-Herrera, 369
Or at 66-67 (officer’s questions to the defendant asking
whether the defendant had purchased drugs or had drugs
on him “carried an implication that defendant could be in
trouble and must remain where he was” that “was com-
pounded when * * * [the officer] requested defendant’s con-
sent to search him”); Bryars, 319 Or App at 473-74 (officer’s
Cite as 326 Or App 11 (2023) 21
questioning about drug possession despite the defendant’s
denials “would have conveyed to a reasonable person that
he disbelieved defendant” and was “compounded when [the
officer] asked defendant for his consent to search”).
Defendant was not just inconvenienced by the stop
of the van that she was riding in as a passenger. Nor were
Held’s questions of defendant merely permissible conversa-
tional inquiries in connection with that stop. Rather, a rea-
sonable person in defendant’s circumstances would believe
that both the driver and defendant were the subjects of an
investigation into whether they illegally possessed mari-
juana. Those circumstances created a sufficiently coercive
atmosphere to effectuate a stop.
The other circumstances present in this case—that
the stop occurred during the afternoon, that Held was the
only officer present, and that Held did not explicitly accuse
defendant of a crime or limit her freedom of movement out-
side the van—do not change our analysis. “Such distinctions
may be relevant when a court considers the totality of the
circumstances, but no one fact is determinative, and context
is critical.” Reyes-Herrera, 369 Or at 67. As we explained
in Almahmood, “a conversation between an officer and an
individual that would not otherwise constitute a stop may
become one if the officer directly and unambiguously com-
municates that he or she is conducting an investigation
that could result in the individual’s arrest or citation.” 308
Or App at 80102 (internal quotation marks omitted). Here,
Held’s progressing questions unambiguously communicated
that he was investigating both the driver and defendant for
marijuana crimes. See also Reyes-Herrera, 369 Or at 61-62
(explaining that “whether the officer’s comments fit the text-
book definition of an accusation” is not alone determinative
of whether a defendant was seized).
In arguing to the contrary, the state cites a num-
ber of our prior cases, decided before the Supreme Court’s
pivotal decision in Arreola-Botello, for the proposition that
an officer does not stop a passenger merely by asking them
potentially incriminating questions such as whether they
are carrying drugs, weapons, or other contraband. See, e.g.,
State v. Graves, 278 Or App 126, 136, 373 P3d 1197, rev den,
22 State v. Vannoy
360 Or 465 (2016) (explaining that those types of questions
are “within the bounds of ‘mere conversation’ ”). Because the
state focuses on Graves, however, we do the same. In Graves,
the defendant was the passenger in a vehicle stopped for
a traffic infraction. Id. at 129. As the officer discussed the
traffic infraction with the driver, he noticed that both occu-
pants had stained fingers, sores on their hands, and a pale
“sickly” appearance that the officer associated with heroin
use. Id. After returning to his patrol car to begin the traf-
fic citation, the officer re-approached the vehicle, asked the
defendant to step out of the car, directed her to stand near
his patrol car, questioned her about her criminal history
and parole status, and requested her consent to a search.
Id. at 129-30. During that conversation, the officer noticed
a spring-loaded knife sticking out of the defendant’s pocket,
resulting in the defendant’s arrest. Id. at 130.
In concluding that the defendant had not been
seized, we cited to other then-recent cases such as State v.
Parker, 266 Or App 230, 337 P3d 936 (2014), and State v.
Lantzsch, 244 Or App 330, 260 P3d 662, rev den, 351 Or
318 (2011), explaining that an officer does not effectuate a
stop by asking a passenger to get out of a vehicle and ques-
tioning them about criminal activity absent some “threaten-
ing or coercive show of authority requiring compliance with
the officer’s request.” Graves, 278 Or App at 135-36 (citing
Backstrand, 354 Or at 403). We noted the controlling princi-
ple at the time that “[p]olice inquiries during the course of a
traffic stop (including requests to search a person or vehicle)
are not searches and seizures and thus by themselves ordi-
narily do not implicate Article I, section 9.” Id. at 135 (cit-
ing State v. Rodgers/Kirkeby, 347 Or 610, 622, 227 P3d 695
(2010)). In light of the totality of the circumstances, we con-
cluded that the officer’s inquiries were “within the bounds of
‘mere conversation’ ” and not the type of inquiries that could
have reasonably communicated that the defendant was the
subject of a criminal investigation and therefore not free to
leave. Id. at 136.
First, we note that it remains unclear whether
Graves and cases like it survive Arreola-Botello. See State v.
Soto-Navarro, 309 Or App 218, 225-26, 482 P3d 150 (2021)
(noting that Arreola-Botello’s objective of preventing officers
Cite as 326 Or App 11 (2023) 23
from transforming traffic stops into unconstitutional crim-
inal investigations “will be harder to realize if passengers
cannot enforce the subject-matter limitations on traffic
stops the same way that drivers can” and opining that the
Supreme Court may have contemplated that a passenger
“would be protected by the subject-matter limitations on
traffic stops identified in Arreola-Botello”); State v. T. T., 308
Or App 408, 419, 479 P3d 598, rev den, 368 Or 37 (2021)
(describing “important and novel” unresolved issues raised
“in the wake of Arreola-Botello” regarding whether an officer
seizes a passenger or otherwise exceeds the subject limits
of a traffic stop by asking certain investigatory questions).
Post-Arreola-Botello, we have often concluded that an officer
commits a constitutional violation by questioning a driver
about contraband during a traffic stop without reasonable
suspicion. See, e.g., State v. Hallam, 307 Or App 796, 806,
479 P3d 545 (2020); State v. McBride, 303 Or App 292, 295,
463 P3d 611 (2020). It is not clear how the purposes underly-
ing Arreola-Botello are supported by an environment where,
as in Graves, an officer may make “investigative inquiries”
of a passenger regarding criminal activity without effectu-
ating a stop requiring an “independent constitutional justi-
fication.” Arreola-Botello, 365 Or at 712.
Regardless of how those significant questions are
eventually resolved, however, we conclude that Graves—
and other cases like it—are distinguishable from the facts
presented here. Held had already discovered an unlawful
quantity of marijuana in the vehicle and indicated that he
believed there was more by requesting and obtaining con-
sent to search the vehicle. Then, within that context, he
turned his questions to defendant, asking her “about mari-
juana,” inspecting the lawful quantity of marijuana she pro-
duced, and finally, asking for her consent to the search of
her handbag. Those circumstances created a situation that
is distinguishable from Graves and similar cases, because
here Held made clear that he was investigating defendant
for a specific crime and did not believe the evidence she pro-
duced that she was following the law.
Thus, we conclude that, by the time Held asked
defendant to consent to a search of her bag, she was stopped.
Where, as here, an officer lacks reasonable suspicion when a
24 State v. Vannoy
stop occurs, the stop is unlawful and all evidence discovered
as a result of the unlawful police action is presumed tainted
by the violation and must be suppressed. State v. Elbinger,
322 Or App 498, 503, 521 P3d 179 (2022). The state does not
argue that the challenged evidence was attenuated from the
unlawful stop or was admissible for any other reason. See
Newton, 286 Or App at 288-89 (“Our conclusion that defen-
dant was stopped for purposes of Article I, section 9, without
reasonable suspicion, fully resolves the appeal, because the
state has not made any argument that the challenged evi-
dence was, nevertheless, admissible.”). For those reasons, we
conclude that the trial court erred in denying defendant’s
motion to suppress.
Reversed and remanded.