State v. Gomez , 323 Or. App. 302 ( 2022 )

302
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted October 4; in Case No. 20CR37832, affirmed; in Case No.
20CR22971, conviction on Count 2 reversed and remanded, otherwise affirmed
December 14, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
ARIEL MAE GOMEZ,
Defendant-Appellant.
Linn County Circuit Court
20CR22971, 20CR37832;
A175896 (Control), A175897
Brendan J. Kane, Judge.
Mark J. Kimbrell, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Erica Herb, 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.
MOONEY, J.
In Case No. 20CR37832, affirmed. In Case No. 20CR22971,
conviction on Count 2 reversed and remanded; otherwise
affirmed.
Nonprecedential Memo Op: 323 Or App 302 (2022) 303
MOONEY, J.
Twice in one day, defendant was involved in traffic
stops. She was the driver in the first stop and a passenger
in the second stop. Defendant was found to be in possession
of illegal drugs at each stop. Charges were filed and, ulti-
mately, defendant entered conditional “no contest” pleas and
was convicted of unlawful possession of heroin (Count 2) in
Case No. 20CR22971 and of unlawful possession of meth-
amphetamine in Case No. 20CR37832. The trial court dis-
missed the offensive littering charge (Count 1) in Case No.
20CR22971 on the state’s motion. Defendant appeals from
the judgment of conviction in each case, assigning error to
the trial court’s denial of her motions to suppress evidence
obtained by law enforcement officers during the traffic
stops. Defendant specifically argues that the officers who
conducted the stops impermissibly extended those stops in
violation of defendant’s constitutional rights under Article I,
section 9, of the Oregon Constitution.1 The cases were con-
solidated for purposes of appeal.
The state agrees that the heroin obtained during
the second traffic stop should have been suppressed and
thus concedes defendant’s second assignment of error which
relates to Count 2 in Case No. 20CR22971. We accept that
concession as proper, conclude that the trial court erred in
denying the motion, and reverse and remand Count 2 in
Case No. 20CR22971. However, for the reasons set forth
below, we conclude that the trial court did not err in denying
defendant’s motion to suppress in Case No. 20CR37832, and
we affirm that judgment.
We review the trial court’s decision to deny a motion
to suppress evidence for errors of law and accept the facts
found by the trial court as true so long as there is constitu-
tionally sufficient evidence in the record to support them.
State v. Sherriff, 303 Or App 638, 640, 465 P3d 288 (2020).
Here, the relevant facts are not in dispute. At
3:00 a.m., sheriff’s deputies Bolton and Kapchinocov, seated
in their respective patrol cars, observed defendant driving
1
Article I, section 9, protects “the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable search or seizure[.]”
304 State v. Gomez
at a high rate of speed and initiated a traffic stop. Upon con-
tacting defendant, Bolton noticed behaviors that led him to
suspect that defendant was under the influence of a central
nervous system (CNS) stimulant. Bolton asked defendant
about her drug use, and defendant reported that she had
taken Ritalin, a prescription stimulant, 10 hours earlier.
She also admitted to using methamphetamine earlier in the
day at an unspecified time. At that point, Bolton believed
that he had reasonable suspicion that defendant was driv-
ing under the influence of intoxicants (DUII). He then asked
defendant if she had any methamphetamine in the car. In
response, defendant handed Bolton a bag of methamphet-
amine and a pipe. At trial, the state offered the metham-
phetamine and pipe as evidence against defendant who, in
turn, moved unsuccessfully to suppress that evidence. It is
the denial of that motion that is now before us on appeal.
Defendant does not argue that the traffic stop was
illegal, and she does not dispute that Bolton had devel-
oped reasonable suspicion that she was driving under the
influence. She argues instead that, when Bolton asked her
whether she had any methamphetamine in the car, he had
already satisfied his DUII investigation and that the inquiry
illegally extended the stop beyond constitutionally permissi-
ble bounds. The state counters that Bolton asked defendant
whether she had any methamphetamine with her as part of
the DUII investigation, and that he did not impermissibly
extend the traffic stop. We agree with the state.
Under Article I, section 9, of the Oregon Constitution,
an officer who develops reasonable suspicion of criminal
activity during a traffic stop “may investigate the sus-
pected crime and does not unlawfully extend the stop by
doing so.” State v. Rondeau, 295 Or App 769, 773, 436 P3d
49 (2019). An investigating officer’s questions during a traf-
fic stop must either be “reasonably related” to the purpose
of the stop or have some other independent constitutional
justification, such as reasonable suspicion that a crime has
been committed. State v. Arreola-Botello, 365 Or 695, 712,
451 P3d 939 (2019). A driver’s possession of alcohol or con-
trolled substances “certainly can be relevant evidence to
prove” that a driver has committed the crime of DUII. State
v. Williams, 297 Or App 384, 388, 441 P3d 242 (2019). Here,
Nonprecedential Memo Op: 323 Or App 302 (2022) 305
Bolton reasonably suspected that defendant had been driv-
ing while under the influence of intoxicants. His question
whether defendant had any drugs in the car was a fact-
specific question reasonably related to his DUII investiga-
tion. The question did not impermissibly extend the scope
of the traffic stop. The trial court did not err by denying
defendant’s motion to suppress.
In Case No. 20CR37832, affirmed. In Case No.
20CR22971, conviction on Count 2 reversed and remanded;
otherwise affirmed.