State v. McBride

303 Or.App. 292

463 P.3d 611

STATE of Oregon, Plaintiff-Respondent,

v.Terri Lynn MCBRIDE, Defendant-Appellant.

A163302

Court of Appeals of Oregon.

April 1, 2020

Matthew Blythe, 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.

Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

This case is on remand to us from the Supreme Court, which vacated our decision in State v. McBride , 299 Or. App. 11, 447 P.3d 1205 (2019), vac'd and rem'd , 366 Or. 97, 455 P.3d 925 (2020) ( McBride I ), in light of State v. Arreola-Botello , 365 Or. 695, 451 P.3d 939 (2019).

In McBride I , we concluded that the trial court did not err in denying defendant's motion to suppress, because an officer's question to defendant regarding whether she had any drugs in her car took place during an "unavoidable lull" in a traffic stop. 299 Or. App. at 18, 447 P.3d 1205. That is, in McBride I , we concluded that defendant's rights under Article I, section 9, of the Oregon Constitution, were not violated, because the officer's inquiry concerning drugs did not extend the duration of the traffic stop.¹ Id. at 16-18, 447 P.3d 1205 ; see also Arreola-Botello , 365 Or. at 698 n 2, 451 P.3d 939 (explaining that "the Court of Appeals has held that, during an ‘unavoidable lull,’ an officer may ask unrelated questions during a traffic stop if those questions do not extend the duration of the stop").

After we decided McBride I , the Supreme Court issued Arreola-Botello , in which it rejected the "unavoidable lull" rule, and concluded that, "for the purposes of Article I, section 9, all investigative activities, including investigative inquiries, conducted during a traffic stop are part of an ongoing seizure and are subject to both subject-matter and durational limitations." Arreola-Botello , 365 Or. at 712, 451 P.3d 939. Accordingly, "an officer is limited to investigatory inquiries that are reasonably related to the purpose of the traffic stop or that have an independent constitutional justification" and an " ‘unavoidable lull’ does not create an opportunity for an officer to ask unrelated questions, unless the officer can justify the inquiry on other grounds." Id.

On remand from the Supreme Court, the state concedes that, "under the new rule of law announced in [ Arreola-Botello ], reversal is required in this case." For the reasons that follow, we accept the state's concession, and conclude that, in light of Arreola-Botello , the trial court erred in denying defendant's motion to suppress. Consequently, we reverse and remand.

"We review a trial court's denial of a motion to suppress for legal error." State v. Rondeau , 295 Or. App. 769, 770, 436 P.3d 49 (2019) (citing State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993) ). In this case, the facts dispositive to defendant's appeal, which are set out more fulsomely in McBride I , are undisputed.

Deputy O'Donnell stopped defendant's car after he saw defendant make an unsignaled turn. O'Donnell approached defendant's car, explained to her why he had pulled her over, and asked her for her driver's license, which she provided. After obtaining defendant's driver's license, O'Donnell radioed dispatch to request a records check. Because the dispatcher was working on other tasks, O'Donnell had to wait for his turn to conduct the records check. While waiting for his turn, O'Donnell asked defendant whether she had any drugs in her car. Defendant admitted that she had a small amount of methamphetamine in her purse. O'Donnell advised defendant of her Miranda rights and arrested her. O'Donnell then received defendant's consent to search her vehicle, searched her vehicle, and discovered a crystal-like substance that tested positive for methamphetamine.

Defendant was charged with one count of unlawful possession of methamphetamine, ORS 475.894. Prior to her trial, she moved to suppress all of the evidence obtained as a result of the traffic stop. The trial court denied defendant's motion to suppress, concluding that O'Donnell's inquiry of defendant regarding drugs took place during an "unavoidable lull" in the traffic stop.

As noted above, in McBride I , we concluded that the trial court did not err in denying defendant's motion to suppress, because O'Donnell's question to defendant regarding whether she had any drugs in her car took place during an "unavoidable lull" in the traffic stop. 299 Or. App. at 18, 447 P.3d 1205. Also, as noted above, after our decision in McBride I , the Supreme Court issued Arreola-Botello , which rejected the "unavoidable lull" rule. Arreola-Botello , 365 Or. at 712, 451 P.3d 939.

In Arreola-Botello , an officer stopped the defendant for failing to use a turn signal, and then inquired about the presence of guns or controlled substances and requested consent to search the defendant's vehicle. Id. at 697, 451 P.3d 939. The court held that because the officer's inquiries were not "reasonably related" to the investigation of the infraction that led to the traffic stop, and did not have an independent constitutional justification, the questioning and request to search the vehicle violated the subject-matter limitation that Article I, section 9, imposes on investigative inquiries during an ongoing seizure. Id. at 713-14, 451 P.3d 939. Accordingly, the Supreme Court concluded that the defendant was unlawfully seized in violation of Article I, section 9, because the officer's questioning and request to search the defendant's vehicle was a violation of Article I, section 9, protections against unreasonable seizure and that the evidence should have been suppressed. Id. at 714-15, 451 P.3d 939.

In this case, O'Donnell had probable cause to believe that defendant had committed a traffic infraction when she failed to signal a turn and, therefore, was permitted to stop her to investigate that infraction. But, like the officer in Arreola-Botello , O'Donnell...