State v. Amaya
| Decision Date | 15 August 2001 |
| Citation | 29 P.3d 1177,176 Or. App. 35 |
| Parties | STATE of Oregon, Respondent, v. Rosita AMAYA, Appellant. |
| Court | Oregon Court of Appeals |
Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender.
Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.
Defendant appeals a judgment of conviction for unlawful possession of a firearm. ORS 166.250. She assigns error to the denial of her motion to suppress evidence obtained during a traffic stop. We affirm.
We view the facts in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). On November 1, 1997, at 1:00 a.m., Officer Reynolds observed a van with a burned-out license plate light stopped in the middle of the road in an area of Beaverton known for drug dealing. The van pulled forward and made an unsignaled left turn. Reynolds stopped the van for the burned-out light and the illegal turn. When Reynolds approached the van, he noticed that the driver was nervous and that the passenger, defendant, was moving around and "tucking" something into a large purse-like bag at her feet. Reynolds immediately felt concerned for his safety, although he did not actually see any weapons.
During the traffic stop, Reynolds learned that the driver of the van did not have a valid license. Because Reynolds did not want to leave the van on the side of the road during the impending morning rush hour, he asked defendant if she was a licensed driver. When she said she was, Reynolds took her license to check its validity. Neither Reynolds nor defendant could recall when he returned it.
After some conversation, the driver agreed to allow Reynolds to search the van. Reynolds asked the driver and defendant to step out of the vehicle while he awaited a second officer. Because of concern about what she might have in her bag, he encouraged defendant to leave it in the van, although he did not order her to do so. Defendant took the bag with her and placed it between her feet, where it was covered by her long coat. Noticing that defendant had taken her bag out of the van and apparently was trying to conceal it, Reynolds asked whether he could search it. Defendant refused, stating that she would be uncomfortable with a search. Reynolds asked her why she would be uncomfortable, and defendant answered that there were personal things in the bag. Reynolds then asked defendant if there was anything in the purse she did not want him to find. Defendant eventually admitted that she had a pistol in the bag. Based on that admission, the officers searched defendant's bag and found the pistol.
Defendant moved to suppress both her admission that she had a pistol and the pistol itself as fruits of an unlawful stop. She argued that Reynolds's questions exceeded the scope of a lawful traffic stop. The state responded that the questions were not excessive because they were based on the officer's reasonable suspicion that defendant was involved in illegal activity. Alternatively, the state argued that ORS 810.410(3)(d) authorized Reynolds to ask about the contents of the bag for officer safety.
The trial court denied defendant's motion. It found that Reynolds was entitled "to inquire further for his safety." It further found that, in any event, the questioning occurred while defendant and the driver awaited the arrival of the second officer and that, because at that point defendant was entirely free to leave, the questioning amounted to "mere conversation."
We review the denial of a motion to suppress for errors of law, deferring to the trial court's findings of historical fact when there is evidence to support them. State v. Ray, 164 Or.App. 145, 149, 990 P.2d 365 (1999).
On appeal, defendant makes two arguments. She first argues that, when Reynolds took and retained her license, he stopped her "separate[ly] and independent[ly]" from the valid traffic stop. That stop, defendant contends, was without reasonable suspicion. However, because defendant did not make that argument below, we do not address it on appeal. See Stanich v. Precision Body and Paint, Inc., 151 Or.App. 446, 456, 950 P.2d 328 (1997)
().
Second, defendant contends that the evidence should be suppressed, because Reynolds asked her questions about her bag without reasonable suspicion that she was involved in illegal activity or posed a risk to officer safety. According to defendant, although ORS 810.410(3)(d) does appear to authorize the sort of inquiry that Reynolds initiated without reasonable suspicion, the statute nevertheless should be construed to prohibit the inquiry in the absence of reasonable suspicion. Defendant reasons that the requirement of reasonable suspicion in the context of a traffic stop derives directly from the state and federal constitutions; thus, she argues, either the statute is unconstitutional or it must be judicially construed to include the reasonable suspicion requirement to save it from constitutional infirmity.
The state argues that, by its terms, ORS 810.410(3)(d) permits the sort of inquiry that Reynolds made in this case without reasonable suspicion. The state contests defendant's characterization of the reasonable suspicion requirement as a constitutional one; according to the state, the requirement originated as a purely statutory one, based on an earlier version of ORS 810.410. In any event, the state argues, suppression is not required, because Reynolds did not exploit any prior illegality.
ORS 810.410(3) provides, in part:
By its terms, subsection (d) permits an officer to "make an inquiry" during the course of a traffic stop. It makes no mention of a requirement of reasonable suspicion. The absence of any language expressly imposing such a requirement is especially significant given the fact that the previous subsection expressly does include such a requirement. The legislature knows how to include a reasonable suspicion requirement and does so when it wishes to. It apparently did not wish to do so in subsection (d). We cannot insert what the legislature decided to leave out of the language of the statute. ORS 174.010.
The question, then, is whether the state or federal constitution imposes such a requirement independently of ORS 810.410(3). In one decision, this court suggested that the requirement exists as a matter of constitutional law. That statement requires careful attention, both because it is the only one of its kind by this court and because it is incorrect.
In State v. Carter/Dawson, 34 Or.App. 21, 578 P.2d 790 (1978), affd 287 Or. 479, 600 P.2d 873 (1979), the defendants were speeding and were pulled over by Officer Miller. During the course of the stop, Miller asked for consent to look inside the car. Having received consent, Miller inspected the car and found controlled substances. The defendants moved to suppress on the ground that Miller had lacked a basis for pulling them over in the first place. The trial court noted that the defendants were speeding, but concluded that the traffic infraction was merely an unlawful pretext for the stop. The state appealed. We held that police are authorized to initiate a traffic stop if they have an objectively—as opposed to a subjectively— reasonable basis for it. Id. at 28-31, 578 P.2d 790. We then went on to discuss the appropriate scope of the stop. We stated:
"The constitutional and statutory law blends into a single rule: Traffic stops should be the minimum possible intrusion on Oregon motorists, and not an excuse to begin questioning, searching or investigating that is unrelated to the traffic reason for the stop."
It is not clear why, after citing ORS 131.615, the court went on to address constitutional issues, given that the statute apparently was sufficient to establish the point. Clearly, the discussion about the constitutional nature of the limitations on the investigatory authority of police officers during a traffic stop was dictum. The question remains whether it was, nevertheless, correct.
In support of the statement that constitutional law—we did not specify whether we were referring to the state or federal constitution—imposes a reasonable suspicion requirement we cited a single case, State v. Evans. In that case, police officers stopped the defendant as he was walking down a public street because the hour was late and the area had experienced a recent spate of vandalism. The officers demanded...
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