State v. Anderson

318 Or.App. 431

505 P.3d 472 (Mem)

STATE of Oregon, Plaintiff-Respondent,

v.Arin Judith ANDERSON, Defendant-Appellant.

A172369

Court of Appeals of Oregon.

Argued and submitted June 15, 2021.

March 16, 2022

Sara F. Werboff, 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.

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 Mooney, Presiding Judge, and Kamins, Judge, and Pagán, Judge.^*

PER CURIAM

Defendant was convicted of unlawful possession of heroin, ORS 475.854 (2018), and unlawful possession of methamphetamine, ORS 475.894 (2018).¹ She appeals, assigning error to the trial court's denial of a motion to suppress evidence.² We reverse and remand.

Defendant was the passenger in a car that was ostensibly stopped for using studded tires out of season, although the true impetus was a tip that the vehicle might have "illegal drugs" in it. During the course of the stop, officers walked a drug-detection dog around the vehicle. The dog alerted, eventually leading to the discovery of drugs in defendant's possession. The trial court denied defendant's motion to suppress the fruits of that search because it found that deploying the dog did not extend the duration of the stop. In light of subsequent case law, that reasoning was plainly erroneous. See State v. McIntyre, 311 Or. App. 726, 730-31, 489 P.3d 593 (2021) ; State v. Soto-Navarro , 309 Or. App. 218, 224, 482 P.3d 150 (2021) (citing State v. Arreola-Botello , 365 Or. 695, 712, 451 P.3d 939 (2019) ). On remand, the trial court should consider whether defendant was seized for purposes of Article I, section 9, of the Oregon Constitution at the time that the drug-detection dog was deployed. See State v. Allen , 314 Or. App. 735, 738-39, 497 P.3d 777 (2021) ; State v. Payne , 310 Or. App. 672, 678, 487 P.3d 413, rev. den. , 368 Or. 514, 493 P.3d 515 (2021).

Reversed and remanded.

* Pagán, J., vice DeHoog, J. pro tempore.

1 Both of those provisions were amended by Ballot Measure 110 (2020). Or. Laws 2021, ch. 591, §§ 36, 39. Because the acts at issue occurred in 2018, the amended provisions do not apply here. Id. at § 47 (effective date is February 1, 2021).

2 In light of our disposition, we do not reach defendant's remaining assignment of error.