State v. Guzman-Garcia ( 2024 )

428 May 1, 2024 No. 289
This is a nonprecedential memorandum opinion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.
ADALBERTO G. GUZMAN-GARCIA,
Defendant-Appellant.
Linn County Circuit Court
20CR53849; A178264
Michael B. Wynhausen, Judge.
Submitted March 14, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for appel-
lant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
KAMINS, J.
Reversed and remanded.
Nonprecedential Memo Op: 332 Or App 428 (2024) 429
KAMINS, J.
Defendant appeals a judgment of conviction for one
count of unlawful possession of methamphetamine, ORS
475.894. On appeal, he assigns error to the trial court’s
denial of his motion to suppress. Defendant contends that
police unlawfully extended a traffic stop and a resulting
investigation for driving under the influence of intoxicants
(DUII) by asking defendant questions related to other inves-
tigations that police were conducting in the area. Reviewing
the trial court’s suppression ruling for errors of law and
accepting the trial court’s express and implied findings of
fact as supported by constitutionally sufficient evidence,
State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993), we reverse
and remand.
Preservation. As a preliminary matter, the state
contends that the argument defendant raises on appeal is
not reviewable by this court, because defendant did not pre-
serve it in the trial court. See State v. Murphy, 306 Or App
535, 539, 475 P3d 100 (2020), rev den, 367 Or 559 (2021) (“As
a general matter, for us to address an argument on appeal,
the adversely affected party must have preserved the claim
of error before the trial court.”). We disagree.
On appeal, relying on the Supreme Court’s decision
in State v. Arreola-Botello, 365 Or 695, 451 P3d 939 (2019),
defendant argues that police “unlawfully extended the stop
by asking defendant questions unrelated to the traffic stop
or DUII investigation.” Although defendant’s argument on
appeal is more precise and developed than it was in the trial
court, in the trial court defendant cited Arreola-Botello and
argued that the officers unlawfully exceeded the scope of
the stop. State v. Walker, 350 Or 540, 550, 258 P3d 1228
(2011) (“Particularly in criminal cases, in which there is a
premium on considerations of cost and speed, the realities
of trial practice may be such that fairly abbreviated short-
hand references suffice to put all on notice about the nature
of a party’s arguments.”). We conclude that the policies
underlying the preservation rule were sufficiently served in
this case. State v. Parkins, 346 Or 333, 341, 211 P3d 262
(2009) (“Ultimately, the preservation rule is a practical one,
and close calls * * * inevitably will turn on whether, given
430 State v. Guzman-Garcia
the particular record of a case, the court concludes that the
policies underlying the rule have been sufficiently served.”).
The merits. After lawfully stopping defendant for a
traffic violation in a “high crime area,” police developed rea-
sonable suspicion that defendant was committing the crime
of DUII. One of the officers present—Officer Norlander—
who, as part of an unrelated investigation, was searching
for a specific individual who lived nearby, then asked defen-
dant a series of questions, including whether defendant
lived in the area, why defendant was in the area, the name
of the friend who defendant had come to the area to visit,
and whether defendant had just been at work. During the
suppression hearing, Norlander testified that in talking to
defendant and asking those questions, he was seeking to
elicit information for other investigations that he was con-
ducting in the area. In other words, Norlander acknowl-
edged that the questions were not related to the DUII inves-
tigation or the traffic infraction investigation but related to
other investigations.
Article I, section 9, of the Oregon Constitution,
requires that, during a traffic stop, “an officer’s investiga-
tive questions and activities be reasonably related to the
purpose that permitted the officer to stop the individual in
the first place or to have an independent constitutional jus-
tification.” State v. Bradley, 329 Or App 736, 741, 542 P3d 56
(2023). Consequently, here, the traffic violation committed
by defendant and the potential DUII “defined the consti-
tutionally permissible boundaries of the investigation and
required that [law enforcement personnel’s] questions and
activities be reasonably related to [those] investigation[s]
and reasonably necessary to effectuate [them].” Id. at 742(internal quotation marks omitted). Norlander’s questions,
which Norlander testified were aimed at eliciting informa-
tion for other investigations, exceeded those boundaries
and were, therefore, a violation of defendant’s rights under
Article I, section 9. See State v. T. T., 308 Or App 408, 417,
479 P3d 598, rev den, 368 Or 37 (2021) (noting “a traffic stop
is * * * not an opportunity for a fishing expedition”).
The remedy. We next turn to the remedy for that
constitutional violation. As a general matter, “[w]hen police
Nonprecedential Memo Op: 332 Or App 428 (2024) 431
obtain evidence of a crime after having violated a defendant’s
rights under Article I, section 9, of the Oregon Constitution,
it is presumed that that evidence is tainted and must be
suppressed.” State v. Campoverde, 317 Or App 347, 354, 505
P3d 466, rev den, 369 Or 785 (2022) (internal quotation
marks omitted). The state argues, however, that “[e]ven if
defendant were correct that some of the officers’ questions to
him exceeded the scope of the inquiry that was permissible
based only on the possible DUII offense, there is no basis to
suppress evidence as a result of that violation.” As the state
sees it, suppression is not required in this case, because
the evidence of defendant’s alleged unlawful possession of
methamphetamine was discovered later—after defendant
voluntarily consented to a search—and defendant “did not
disclose anything incriminatory during th[e] inquiry, and
this record does not otherwise suggest that [defendant’s]
responses may have induced him to consent to the search.”
We disagree with the state’s argument regarding
suppression. “[T]he state bears the burden of proving that
evidence obtained after violating a defendant’s constitu-
tional rights was not the product of police exploitation of
the unlawful conduct.” Id. at 354. Although a “defendant’s
voluntary consent itself may be sufficient to demonstrate
that the unlawful conduct did not affect or had only a ten-
uous connection to the evidence produced,” Arreola-Botello,
365 Or at 714 (internal quotation marks omitted), that is
not necessarily the case, see State v. Unger, 356 Or 59, 69,
333 P3d 1009 (2014) (explaining that a “causal connection
requiring suppression * * * may exist because the unlawful
police conduct, even if not overcoming the defendant’s free
will, significantly affected the defendant’s decision to con-
sent” (internal quotation marks omitted)). Here, the state
never raised its argument—an attenuation argument—in
the trial court. Therefore, the trial court did not engage in
the necessary “fact-specific inquiry” on whether the state
had carried its burden of proof as to attenuation, and it
would be inappropriate for us to affirm on the basis of atten-
uation. State v. Escudero, 311 Or App 170, 174, 489 P3d 569
(2021) (“Because the attenuation argument is raised for the
first time on appeal, the trial court never engaged in the
fact-specific inquiry on whether the state carried its burden
432 State v. Guzman-Garcia
of proving that defendant’s consent was independent of, or
only tenuously related to, the unlawful police conduct.”);
State v. Heater, 271 Or App 538, 540, 351 P3d 776 (2015)
(concluding that the record may have developed differently
if the state had raised its “no exploitation” argument below).
Reversed and remanded.