DocketNumber: F17603; A150751
Citation Numbers: 272 Or. App. 192, 355 P.3d 181
Judges: Armstrong, Egan, Muniz
Filed Date: 7/8/2015
Status: Precedential
Modified Date: 9/9/2022
Defendant appeals a judgment of conviction for one count of unlawful possession of methamphetamine, ORS 475.894, assigning error to the trial court’s denial of his motion to suppress evidence discovered during a search of his car following a traffic stop. Defendant argues that the police officer extended defendant’s initial, lawful detention of defendant for a traffic offense without reasonable suspicion to do that and, therefore, the evidence obtained during the search must be suppressed. The state concedes that the police unlawfully extended the traffic stop; however, it asserts that we should affirm the trial court under the “right for the wrong reason” doctrine, see Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001) (setting out conditions under which a reviewing court may, as a matter of discretion, affirm the ruling of a lower court on an alternative basis), because defendant was advised of his right to refuse consent and testified that he understood that right. In the state’s view, “[t]hat mitigating circumstance was sufficient to attenuate defendant’s consent from the unlawful stop,” rendering the evidence nonetheless admissible.
We review the trial court’s denial of a suppression motion for legal error and are bound by the trial court’s findings of historical facts that are supported by evidence in the record. State v. Bailey, 356 Or 486, 489, 338 P3d 702 (2014). With one exception noted below, the pertinent facts in this case are undisputed.
Oregon State Police Trooper Macy stopped defendant for speeding at 7:45 a.m. on a September morning. As he approached the driver’s side of defendant’s car, he noticed
Macy then went back to his patrol car and contacted dispatch. Because of defendant’s degree of nervousness and answer to the question about methamphetamine, Macy, in addition to his normal request for checks and warrants, also asked the dispatcher to check whether defendant had any drug-related offenses in his criminal history. The dispatcher informed Macy that defendant had a prior drug conviction. Macy returned to defendant’s car, told him that he thought defendant was in possession of methamphetamine, and asked defendant for consent to search the car. He gave defendant a consent form that stated, among other things, “You have the right to refuse to consent to a search.” Macy asked defendant to read the form and whether he understood the form. According to Macy, defendant said that he did and agreed to the search, but he asked Macy to “hurry up” because he needed to get to work and was late. Defendant’s account differs. He testified that he had initially refused consent because he was late for work but had changed his mind when Macy told him that he would then have to wait more than two hours for a drug dog to show up.
Macy asked defendant to get out of the car, patted defendant for weapons, and asked defendant to speak to his “cover officer.” Macy then searched the car and found a glasses case behind the driver’s seat; inside the case, Macy found a spoon with methamphetamine residue, a cotton ball, and “other drug paraphernalia.”
Defendant was arrested and charged with unlawful possession of methamphetamine. Before trial, he filed a motion to suppress the evidence discovered during the search; at the hearing on his motion, defendant argued that the officer had obtained the evidence by unlawfully extending defendant’s detention for a traffic stop without reasonable suspicion of further criminal activity.
The trial court agreed with the state’s first argument. The extent of the court’s findings and conclusions are as follows:
“This is a case in which the officer stopped the Defendant for speeding. Upon stopping him, he noticed the Defendant was, his jacket or — he, the officer testified it was a sweater, a zip up sweater. The Defendant said it was his work windbreaker. It was zipped up to the neck. And the officer felt that the Defendant was unduly nervous. He asked for and subsequently received the Defendant’s documents. And when handing them to the officer, the Defendant was shaking visibly and that there was a twitch in his face.
“The officer in receiving the documents asked four questions about why are you so nervous. To which the Defendant responded he didn’t like being stopped by police officers and that they made him nervous. He asked if he had any weapons in the vehicle, the officer. And the Defendant said no. He asked if there was any marijuana in the vehicle, and the Defendant said no. And he asked if there was any methamphetamine in the vehicle and the Defendant said not to my knowledge. I believe that’s what he said. ‘Not that I know of.’
“The officer then went back to his car, called in dispatch and asked for his normal wants and warrants and history, and asked also for a criminal history check. That came back. There is no evidence that extended the request for information from dispatch. And the officer asked for consent to search, which consent was granted.
*197 “There is no evidence other than those brief questions that this was [sic] in any way extended the stop. And I specifically asked that the State specifically ask those questions of the officer, and he was cross-examined about that. And there’s no evidence before the Court that there was an extension.
“The case law as cited allows an officer to question as long as there is not an unreasonable extension of the traffic stop. I do not find from the evidence that there was such an unreasonable extension, and I therefore am going to deny your motion to suppress.”
Defendant subsequently entered a conditional guilty plea, reserving the right to appeal the denial of his suppression motion. ORS 135.335(3).
On appeal, defendant reiterates the argument that he made below — that Macy violated Article I, section 9, by extending the lawful traffic stop of defendant without reasonable suspicion of further criminal activity. The state concedes that the traffic stop was unlawfully extended. We agree with and accept the state’s concession. See Rodgers/Kirkeby, 347 Or at 623 (“Police authority to detain a motorist dissipates when the investigation reasonably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should be completed. Other or further conduct by the police, beyond that reasonably related to the traffic violation, must be justified on some basis other than the traffic violation.” (Emphasis in original.)); State v. Dennis, 250 Or App 732, 737, 282 P3d 955 (2012) (state has burden of proving that investigation of unrelated criminal matter during traffic stop occurred during unavoidable lull in investigation of the traffic stop); State v. Hendon, 222 Or App 97, 106, 194 P3d 149 (2008) (where there was no evidence that the request for consent to search occurred during an “unavoidable lull” in the investigation, “the state has not established that [the officer] did not detain defendant beyond the time reasonably necessary to investigate the initial lawful basis for the stop and we must conclude that [the officer] unlawfully prolonged the duration of the stop when he asked defendant to consent to a search without reasonable suspicion of other criminal activity”).
The problem with the state’s position is that it did not make that argument below and, hence, the trial court did not consider it.
“[W]hen a defendant has established that an illegal stop or an illegal search occurred and challenges the validity of his or her subsequent consent to a search, the state bears the burden of demonstrating that (1) the consent was voluntary; and (2) the voluntary consent was not the product of police exploitation of the illegal stop or search.”
Unger, 356 Or at 74-75 (emphasis added). Applying those principles here, even assuming that defendant voluntarily consented to the search following the unlawful extension of the stop, for the evidence to be admissible, the state had to prove that the police did not exploit that illegality to obtain defendant’s consent. Id. at 74 (“Exploitation analysis recognizes that police conduct that constitutes an illegal stop or an illegal search may fall short of coercing a defendant to consent to a subsequent request to search, but nevertheless may require suppression because the police took advantage of information gained from their illegal conduct or some other aspect of that conduct to obtain consent — an advantage that they would not have had had the police stayed
Determining whether the police exploited their unlawful conduct to obtain consent “involve [s] a ‘fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection.’” Unger, 356 Or at 79-80 (quoting Hall, 339 at 35). In addition to the temporal proximity between the unlawful police conduct and the voluntary consent, and the existence of mitigating or intervening circumstances, Hall, 339 at 35, 35 n 21, relevant considerations also include “the nature, extent, and severity of police misconduct — and relatedly, the purpose and flagrancy of that misconduct,” Unger, 356 Or at 83.
For us to affirm a trial court’s ruling on a basis other than that on which the court relied, (1) “the facts of record [must] be sufficient to support the alternative basis for affirmance”; (2) “the trial court’s ruling [must] be consistent with the view of the evidence under the alternative basis for affirmance”; and (3) “the record [must] materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below.” Outdoor Media Dimensions Inc., 331 Or at 659-60.
“In other words, even if the record contains evidence sufficient to support an alternative basis for affirmance, if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance.”
Id. at 660 (emphasis in original).
Here, the trial court never considered the evidence on which the state’s alternative argument is premised; that is, the trial court did not engage in the fact-specific inquiry necessary to determine whether the state had carried its burden of proving that “the consent was independent of, or only tenuously related to, the unlawful police conduct,” including “an assessment of the actual police misconduct.” Unger, 356 Or at 86. Moreover, the record may very well have developed differently had the state raised the lack-of-exploitation argument below. For example, as noted, there is a factual dispute in the record about whether Macy
In sum, the trial court erred in concluding that the officer did not unlawfully extend the traffic stop in violation of Article I, section 9. Moreover, the record is insufficient for us to affirm the court’s decision under the alternative basis advanced by the state. Accordingly, we conclude that the trial court erred in denying defendant’s suppression motion.
Reversed and remanded.
In a memorandum of additional authorities, the state points to a trio of cases involving attenuation that the Oregon Supreme Court decided after this case was briefed and argued, namely, State v. Unger, 356 Or 59, 333 P3d 1009 (2014), State v. Lorenzo, 356 Or 134, 335 P3d 821 (2014), and State v. Musser, 356 Or 148, 335 P3d 814 (2014).
After defendant testified, the prosecutor recalled Macy, who testified that he did not remember — and there is nothing in his police report indicating — that he had threatened to call the K-9 unit. Macy also stated that he had just called the
Defendant apparently prepared a memorandum supporting his motion to suppress to which he referred during the hearing; however, as the trial court noted, the memorandum is not in the trial court file.
Although defendant cited, in his written motion to suppress, various provisions of the Oregon Constitution, the federal constitution, and Oregon statutes as authority for his motion, defendant’s argument at the hearing, premised largely on State v. Rodgers, 219 Or App 366, 182 P3d 209 (2008), aff'd sub nom State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010), focused solely on the principles underlying Article I, section 9, of the Oregon Constitution. That provision states, in part, that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure!.]”