State v. McIntyre , 311 Or. App. 726 ( 2021 )

726
Argued and submitted November 23, 2020, reversed and remanded
May 26, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
ERIN COLLEEN McINTYRE,
Defendant-Appellant.
Washington County Circuit Court
18CR71686; A170565
489 P3d 593
Defendant was a passenger in a vehicle during a traffic stop. While one officer
wrote a citation for the driver, another officer arrived with a drug-detection dog.
The dog alerted, leading to the seizure of methamphetamine from defendant’s
bag and incriminating statements by defendant. Before her trial for unlawful
possession of methamphetamine, defendant moved to suppress the evidence
as resulting from an unlawful seizure under Article I, section 9, of the Oregon
Constitution and the Fourth Amendment to the United States Constitution. The
trial court denied the motion. Assuming that defendant was stopped, the court
concluded that the evidence was lawfully obtained during an unavoidable lull.
Defendant was subsequently convicted and now appeals, assigning error to the
denial of her motion to suppress. Held: After the trial court ruled on defendant’s
motion to suppress, the Supreme Court issued its decision in State v. Arreola-
Botello, 365 Or 695, 451 P3d 939 (2019), abolishing the unavoidable-lull doctrine.
In light of that decision, the trial court plainly erred in denying defendant’s
motion to suppress on the basis that it did and the Court of Appeals exercised its
discretion to correct the error. On remand, the trial court must make the neces-
sary factual findings to decide the motion under current law.
Reversed and remanded.
Janelle F. Wipper, Judge.
Anne Fujita Munsey, 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.
David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
Cite as 311 Or App 726 (2021) 727
AOYAGI, J.
Reversed and remanded.
728 State v. McIntyre
AOYAGI, J.
Defendant was a passenger in a vehicle during a traf-
fic stop. While one police officer processed a traffic citation
for the driver, another officer arrived with a drug-detection
dog and walked around the vehicle. The dog alerted, leading
to the seizure of methamphetamine from defendant’s purse
(or backpack) and incriminating statements by defendant.
Defendant was arrested and charged with unlawful pos-
session. Before trial, she moved to suppress the evidence as
resulting from an unlawful seizure under Article I, section
9, of the Oregon Constitution and the Fourth Amendment to
the United States Constitution. The trial court denied the
motion on the basis that the evidence was lawfully obtained
“during an unavoidable lull.” Defendant proceeded to a
bench trial, and the trial court found her guilty of unlawful
possession of methamphetamine, ORS 475.894. Defendant
appeals, assigning error to the denial of her motion to sup-
press.1 For the following reasons, we reverse and remand for
further proceedings.
We review the denial of a motion to suppress for
legal error and defer to the trial court’s findings of fact if
there is constitutionally sufficient evidence in the record to
support them. State v. Sexton, 278 Or App 1, 2, 378 P3d 83
(2016).
Beginning with preservation, defendant has always
maintained that she was unlawfully seized. We agree with
the state, however, that the particular claim of error that
she raises on appeal—that the police unlawfully expanded
the scope of the traffic stop, even if they did not unlawfully
extend its duration—is unpreserved. This case is analogous
to State v. Hallam, 307 Or App 796, 479 P3d 545 (2020), in
that regard. The defendant in Hallam moved to suppress evi-
dence seized during a traffic stop, the trial court denied her
motion on “unavoidable lull” grounds, and, on appeal, she
made the same argument that ultimately prevailed in State
v. Arreola-Botello, 365 Or 695, 451 P3d 939 (2019). Hallam,
1
Defendant, who was sentenced to probation, also assigns error to two spe-
cial conditions of her probation. Because defendant has completed her probation
at this point, those claims of error are moot, and we do not address them. See
State v. Kilgore, 295 Or App 602, 604 n 2, 435 P3d 817 (2019) (similar situation).
Cite as 311 Or App 726 (2021) 729
307 Or App at 798, 801.2 That is, she argued on appeal that
the police had unlawfully expanded the subject matter of
the stop, regardless of whether they extended the duration.
Id. at 801. Our explanation as to why that argument was
unpreserved applies equally here (except that defendant’s
written motion in this case was more fulsome than the writ-
ten motion in Hallam):
“Here, nothing in defendant’s written motion suffi-
ciently apprised either the state, or the trial court, of the
Arreola-Botello subject matter limitation argument that
she advances on appeal. And our review of the hearing
on the motion before the trial court shows no indication
that the bare bones written motion was supplemented by
Arreola-Botello-style arguments. Rather, the arguments at
the suppression hearing, understandably, tracked the law
in effect at the time under [State v. Rodgers/Kirkeby, 347
Or 610, 227 P3d 695 (2010)]. Accordingly, the subject matter
limitation argument advanced on appeal is unpreserved.”
Id. at 803.
It follows that our review in this case is limited
to plain error—and defendant has requested plain-error
review (in the alternative to arguing preservation). See
ORAP 5.45(1) (allowing for discretionary plain-error review).
To qualify for plain-error review, three requirements must
be met: (1) it must be an error of law; (2) the point must be
obvious, i.e., not reasonably in dispute; and (3) the error can-
not require us to go outside the record or select among com-
peting inferences. State v. Terry, 333 Or 163, 180, 37 P3d 157
(2001), cert den, 536 US 910 (2002). If those requirements
are met, it is a matter of discretion whether we will reverse
on plain-error grounds. Id. at 180 n 11.
Defendant argues that the trial court plainly erred,
because it denied her motion to suppress based on the drug
investigation occurring during an “unavoidable lull” in
the traffic stop, which reasoning is plainly erroneous after
Arreola-Botello. We agree that, in light of Arreola-Botello,
the trial court plainly erred in denying defendant’s motion
to suppress on the ground that it did. Application of the
2
The parties completed their briefing in Hallam, then the Supreme Court
issued its decision in Arreola-Botello, and then we issued our decision in Hallam.
730 State v. McIntyre
“unavoidable lull” doctrine is an error of law. It is obvious
after Arreola-Botello that the application of that doctrine is
error. See State v. Calvert, 214 Or App 227, 233, 164 P3d
1169 (2007) (“Whether an error is plain is determined with
reference to the law existing at the time of the appellate
decision.”). And we need not go outside the record or select
among competing inferences to determine that the trial
court erred.3 The requirements for plain-error review are
therefore met. Moreover, it is appropriate under the circum-
stances to exercise our discretion to correct the plain error,
particularly given the substantial change in the law that
has occurred, the significance of the evidence to the pros-
ecution and the defense, and the fact that defendant could
not have successfully raised the subject-matter limitation
on traffic stops earlier given the state of the law at the time
of her trial. See Terry, 333 Or at 180 n 11 (considerations for
exercising discretion).
At the same time, we disagree with defendant that
the proper remedy is outright reversal. Rather, we agree
with the state that the proper course is to reverse and
remand for reconsideration of the suppression motion in
light of Arreola-Botello.4 Had the necessary factual findings
been made, it would be a legal question whether (and when)
defendant was seized for purposes of Article I, section 9. See
State v. Stevens, 364 Or 91, 93, 100-02, 430 P3d 1059 (2018)
(taking the facts found by the trial court, and then deciding
3
In its answering brief, the state suggests that the trial court decided
the federal and state constitutional aspects of defendant’s motion on different
grounds. The state notes that drivers and passengers are treated the same under
the Fourth Amendment, whereas, under Article I, section 9, whether a passen-
ger is seized during a traffic stop depends on the particular circumstances. See
State v. Payne, 310 Or App 672, 678, 487 P3d 413 (2021) (“Unlike the federal
constitution, the Oregon Constitution does not contain a ‘categorical’ rule that
[passengers in cars that are stopped for traffic violations] are seized.”); see, e.g.,
State v. Soto-Navarro, 309 Or App 218, 226, 482 P3d 150 (2021) (holding that,
under the particular circumstances, the passenger was seized). Relying on that
difference, the state suggests that the trial court rejected the Fourth Amendment
challenge on “unavoidable lull” grounds but rejected the Article I, section 9, chal-
lenge based on defendant not being seized. Having reviewed the record, we have
no doubt that the trial court denied the motion to suppress based entirely on
the “unavoidable lull” doctrine, including the Article I, section 9, challenge. The
record allows no other inference.
4
At oral argument, without conceding error, the state took the position that,
if the trial court erred, the proper remedy would be to remand for the trial court
to make findings as to whether (and when) defendant was seized.
Cite as 311 Or App 726 (2021) 731
whether and when the defendant was seized for purposes of
Article I, section 9). Here, however, faced with defendant’s
contention that she was unlawfully seized, the trial court
assumed arguendo that she was seized, without making any
factual findings relative to that issue, and denied suppres-
sion based on the then-existing unavoidable-lull doctrine.
The court’s only factual finding pertained to when the drug
dog arrived at the scene relative to the events of the traffic
stop (a disputed point), as relevant to the applicability of the
unavoidable-lull doctrine.
On this record, it is not possible to address the legal
question of whether defendant was seized at the relevant
point for purposes of Article I, section 9, without factual
findings as to exactly what occurred during this particu-
lar traffic stop. See State v. Ehly, 317 Or 66, 78, 854 P2d
421 (1993) (“The determination whether a person has been
‘seized’ under Article I, section 9, requires a fact-specific
inquiry into the totality of the circumstances of the partic-
ular case.”); see also State v. Kamph, 297 Or App 687, 689,
698, 44 P3d 1129 (2019) (remanding under analogous cir-
cumstances, including new case law and the need for a fac-
tual finding). Because the trial court bypassed making those
findings and simply assumed that defendant was seized—
an understandable approach given the existing law at the
time—those findings have not yet been made. We therefore
reverse and remand for further proceedings in accord with
this opinion.
Reversed and remanded.