State v. Rondeau

295 Or.App. 769

436 P.3d 49

STATE of Oregon, Plaintiff-Respondent,

v.Deborah Lee RONDEAU, Defendant-Appellant.

A162393

Court of Appeals of Oregon.

Argued and submitted January 9, 2018.

January 24, 2019

Kali Montague, 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.

E. Nani Apo, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

AOYAGI, J.,

Defendant was stopped for a traffic violation while bicycling. During the stop, the officer began investigating defendant for driving under the influence of intoxicants (DUII), specifically marijuana. The officer asked defendant a series of questions, which ultimately led to the seizure of methamphetamine and a pipe. Defendant was charged with unlawful possession of methamphetamine, ORS 475.894. Before trial, defendant moved to suppress the evidence on the ground that it was obtained during an unlawful extension of the stop. The state countered that the officer had reasonable suspicion of DUII and that his questions were therefore reasonable and did not unlawfully extend the stop. The trial court denied the motion. Defendant was convicted. On appeal, she assigns error to the denial of her motion to suppress. For the reasons that follow, we conclude that the trial court erred in denying defendant’s motion to suppress and, accordingly, reverse and remand.

We review a trial court’s denial of a motion to suppress for legal error. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). We are bound by the trial court’s factual findings if they are supported by evidence in the record. Id. If the trial court did not make an express finding on a necessary fact, we presume that the court found the facts in a manner consistent with its decision. State v. Roesler , 235 Or. App. 547, 550, 234 P.3d 1004 (2010). We state the facts accordingly.

On an October night, Deputy Stevens was on patrol when he saw defendant, who was riding a bicycle, run a stop sign. Stevens stopped defendant for failing to obey a traffic control device, which is a traffic violation. Stevens immediately smelled a "heavy odor of marijuana" coming from defendant’s person. Based on defendant having run a stop sign and the odor of marijuana, Stevens suspected that defendant was under the influence of intoxicants. He began to investigate a possible DUII offense.¹

Stevens asked defendant for her identification and at some point ran her name through dispatch. Stevens told defendant that he could smell the marijuana on her and asked when she had last smoked. Defendant replied that she had smoked "[e]arlier in the day." Based on his training and experience, Stevens did not consider that answer consistent with the odor coming from her person. Stevens asked defendant whether she had any marijuana on her. She said that she did and handed him a small sealed plastic bag of marijuana. In Stevens’s experience from prior DUII and drug-related cases, once he finds one drug-related item, he is typically "able to locate additional items." He also suspected that defendant had more marijuana on her because of "the amount of marijuana that [he] was smelling coming from her person." Stevens "didn’t believe, at that time, that that was all she had on her," so he asked defendant for consent to search her.

Defendant consented to a search of her person and also, at some point, to a search of at least one bag that she had with her. Stevens found more marijuana and a Bluetooth headset case. Stevens requested and obtained consent to open the headset case and, inside it, found a glass pipe that he suspected contained methamphetamine residue. Stevens asked defendant "where her meth was." Defendant denied having any methamphetamine on her. She then told Stevens that she was trying to get home for a family dinner and was concerned whether she was going to jail. Stevens told defendant that, if she gave him her methamphetamine, he would not arrest her but would just refer the matter to the district attorney’s office. Defendant removed a small plastic bag of methamphetamine from her pocket and gave it to Stevens. At that time, Stevens received another call, told defendant that he would refer the matter, and departed.² The stop had lasted about 22 minutes.

The state charged defendant with one count of unlawful possession of methamphetamine, ORS 475.894. Defendant moved to suppress the evidence, arguing that it was obtained during an unlawful extension of the stop in violation of Article I, section 9, of the Oregon Constitution. The state asserted that Stevens’s questions were justified by reasonable suspicion of DUII and, once he found the glass pipe, by reasonable suspicion of possession of methamphetamine. Defendant conceded that Stevens had reasonable suspicion of DUII but argued that his questions about drug possession were not reasonably related to the DUII investigation and had unlawfully extended the stop.

The trial court concluded that Stevens had reasonable suspicion that defendant had committed DUII and that Stevens therefore was allowed to ask the questions that he asked. The court denied defendant’s motion. Defendant then entered into a conditional plea agreement, by which she retained the right to appeal the denial of her motion to suppress. On appeal of the resulting judgment of conviction, defendant raises a single assignment of error, challenging the denial of her motion to suppress.

We begin our discussion with an overview of Article I, section 9, as relevant to stops. Article I, section 9, establishes the right of the people "to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure." A "stop" is a type of seizure, specifically "a temporary restraint of a person’s liberty for the purpose of criminal investigation." State v. Rodgers/Kirkeby , 347 Or. 610, 621, 227 P.3d 695 (2010). A stop may be initiated when an officer has reasonable suspicion of criminal activity or probable cause for a noncriminal traffic violation. Id . at 621, 623, 227 P.3d 695.

With respect to a stop for a traffic violation, "[p]olice authority to detain a motorist dissipates when the investigation reasonablyrelated to that traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should be completed." Id. at 623, 227 P.3d 695. Police conduct that is "beyond that reasonably related to the traffic violation * * * must be justified on some basis other than the traffic violation." Id. (emphasis in original); see also State v. Watson , 353 Or. 768, 778, 780, 305 P.3d 94 (2013) (an officer’s conduct during a traffic stop must be "reasonably related" to the lawful purposes of the stop and reasonably necessary to effectuate those purposes).³ For example, if an officer develops reasonable suspicion of criminal activity during a traffic stop, the officer may investigate the suspected crime and does not unlawfully extend the traffic stop by doing so. State v. Gomes , 236 Or. App. 364, 371-72, 236 P.3d 841 (2010) ; see also State v. Pichardo , 360 Or. 754, 760, 388 P.3d 320 (2017) (a criminal investigation "can entail a broader range of questions" than a noncriminal traffic investigation, but the inquiries must still have a "reasonable, circumstance-specific" relationship to the criminal investigation).

In order to establish that an officer’s conduct during a traffic stop was reasonably related to the lawful purposes of the stop, the state must be able to point to a "reasonable, circumstance-specific" relationship between the challenged conduct and the lawful purposes of the stop. Pichardo , 360 Or. at 760, 388 P.3d 320 ; accord. Rodgers/Kirkeby , 347 Or. at 623, 227 P.3d 695 ; see also, e.g ., State v. Maciel , 254 Or. App. 530, 537, 295 P.3d 145 (2013) (traffic stop unlawfully extended when officer, who had reasonable suspicion of car theft but not drug trafficking, stopped investigating car theft to investigate drug trafficking). "Whether an officer’s conduct constitutes an unlawful extension of a traffic stop is a question of law." State v. Dennis , 250 Or. App. 732, 737, 282 P.3d 955 (2012).

Existing case law illustrates what does and does not constitute a reasonable relationship between officer conduct and the lawful purposes of a stop. For example, in State v. Fair , 353 Or. 588, 609-11, 302 P.3d 417 (2013), which the state cites in its briefing, officers responded to an incomplete 9-1-1 call, arrested the defendant’s husband for assault, and temporarily seized the defendant to interview her as a material witness. While questioning her, the officers checked for outstanding warrants and asked about prior arrests. The Supreme Court concluded that, on the particular facts of the case, those inquiries were "reasonably necessary to determine defendant’s identity" and "served two purposes reasonably related at that point to the reasons for temporarily detaining" her. Id . at 614, 302 P.3d 417. Specifically, verifying the information in the database could potentially validate the defendant’s identity, and asking about prior arrests was a way to "ascertain whether the defendant had a prior history of domestic violence," which was reasonably related to whether she or her husband was the assailant in the incident under investigation. Id.

A more recent case is State v. Miller , 363 Or. 374, 422 P.3d 240, adh’d to as modified , 363 Or. 742, 428 P.3d 899 (2018). The defendant in that case was lawfully stopped on suspicion of DUII. Id. at 379, 422 P.3d 240. After conducting a records check and before administering field sobriety tests, the deputy asked the defendant whether he had a firearm. Id. at 377, 422 P.3d 240. The deputy testified that he asked that question because he believed that ...