State v. Arreola-Botello

• Decision Date: 15 November 2019
• Docket Number: CC C151713CR (SC S066119)
• Citation: 365 Or. 695,451 P.3d 939
• Parties: STATE of Oregon, Respondent on Review, v. Mario ARREOLA-BOTELLO, Petitioner on Review.
• Court: Oregon Supreme Court

365 Or. 695

451 P.3d 939

STATE of Oregon, Respondent on Review,

v.Mario ARREOLA-BOTELLO, Petitioner on Review.

CC C151713CR (SC S066119)

Supreme Court of Oregon, En Banc.

Argued and submitted March 4, 2019, at the Lewis & Clark School of Law, Portland, Oregon.

November 15, 2019

Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

David B. Thompson, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Rosalind M. Lee, Eugene, filed the brief for amici curiae Oregon Criminal Defense Lawyers Association and Oregon Justice Resource Center.

NELSON, J.

In this criminal case, we consider the constitutionally permissible scope of a traffic stop under Article I, section 9, of the Oregon Constitution. Defendant was lawfully stopped for failing to signal a turn and a lane change. During the stop, while defendant was searching for his registration and proof of insurance, the officer asked him about the presence of guns and drugs in the vehicle, and requested consent to search the vehicle. Defendant consented, and during the search, the officer located a controlled substance. Defendant contends that the officer expanded the permissible scope of the traffic stop when he asked about the contents of the vehicle and requested permission to search it because those inquiries were not related to the purpose of the stop. For the reasons that follow, we agree with defendant that the trial court erred in denying defendant’s motion to suppress, and we reverse the decision of the Court of Appeals.

In reviewing the denial of a motion to suppress evidence, we are bound by the trial court’s factual findings to the extent that those findings are supported by evidence in the record. State v. Stevens , 311 Or. 119, 126, 806 P.2d 92 (1991). Additionally, "if the trial court does not make findings on all pertinent historical facts and there is evidence from which those facts could be decided more than one way, we will presume that the trial court found facts in a manner consistent with its ultimate conclusion." Id. at 127, 806 P.2d 92. We state the following facts in accordance with that standard.

Officer Faulkner of the Beaverton Police Department observed defendant’s vehicle change lanes and turn without signaling. Faulkner initiated his patrol car’s overhead lights, and defendant pulled over. Faulkner approached defendant’s vehicle and requested his driver’s license, registration, and proof of insurance. Defendant was able to immediately produce his license but spent about three to four additional minutes searching for his registration and proof of insurance.

While defendant was searching, Faulkner asked him questions. Defendant, who primarily speaks Spanish, was having difficulty understanding the questions in English. At the beginning of the traffic stop, a passenger in the vehicle helped interpret Faulkner’s questions, but she left after Faulkner told her that she was free to do so. Faulkner asked defendant about the presence of weapons, drugs, or other illegal items in the vehicle and requested consent to search the vehicle. Defendant responded, "Sure, okay," and consented to the search.¹ During the search, Faulkner located a small package on the floor between the driver’s seat and the door. Faulkner examined the package, found it to be consistent with drug packaging, and observed a substance in the package that he believed was methamphetamine. Faulkner placed defendant under arrest.

The state charged defendant with possession of methamphetamine, ORS 475.894. Before trial, defendant moved to suppress the evidence obtained during the traffic stop, arguing that Faulkner had violated his constitutional rights by unlawfully expanding the scope of the lawful traffic stop into matters unrelated to the purpose of the stop, such as whether defendant possessed drugs. Faulkner testified that his questioning had been a routine inquiry, "[a]ll the same spiel every time." He stated,

"Every time I walk up, I ask him, I [say], ‘hey, Officer Faulkner, Beaverton Police Department,’ do my contact with them. ‘Do you have anything illegal in the car? Would you consent to a search for guns, drugs, knives, bombs, illegal documents, or anything else that you’re not allowed to possess?’ "

Defendant maintained that Faulkner’s questioning went beyond the lawful the scope of the traffic stop. The trial court disagreed and concluded that Faulkner had asked the unrelated questions during an "unavoidable lull,"² and that defendant had voluntarily consented to the search of the vehicle. Thus, the trial court denied defendant’s motion to suppress. Defendant waived his right to a jury trial, and the trial court convicted defendant of unlawful possession of methamphetamine.

Defendant appealed, assigning error to the denial of his motion to suppress. At the Court of Appeals, defendant argued that Faulkner had unlawfully expanded the scope of the traffic stop by asking investigatory questions that were unrelated to the purpose of the stop without independent constitutional justification. The state responded that Court of Appeals case law authorizes an officer to request consent to search a vehicle during an "unavoidable lull" in an investigation, such as when a person is searching for requested documents. The Court of Appeals agreed with the state and affirmed defendant’s conviction in a per curiam decision. See State v. Arreola-Botello , 292 Or. App. 214, 418 P.3d 785 (2018) (per curiam) (citing State v. Hampton , 247 Or. App. 147, 268 P.3d 711 (2011), which held that questioning about consent to search a vehicle while the driver was searching for registration occurred during an "unavoidable lull" and, thus, did not extend the traffic stop in violation of Article I, section 9, protections against unreasonable seizure).

Defendant petitioned for, and we allowed, review. In this court, defendant renews his argument that Faulkner violated his Article I, section 9, rights when Faulkner asked him questions about drugs and weapons, and requested consent to search his vehicle, because those inquiries were unrelated to the purpose of the stop. Defendant proposes that officer questions or requests for consent to search that expand either the duration or the subject-matter scope of the traffic stop are not reasonably related to the purpose of the stop, and are thus impermissible under Article I, section 9, unless the officer has independent constitutional justification for making such inquiries. Accordingly, defendant argues that, in this case, Faulkner’s questions exceeded the scope limitations inherent within Article I, section 9—that is, the questions were not reasonably related to the investigation of defendant’s failure to signal—and also were not supported by any independent constitutional justification. According to defendant, when that questioning exceeded the lawful scope of the stop, the stop became an unlawful seizure.

In response, the state contends that questions that are unrelated to the purpose of a stop do not implicate Article I, section 9, unless the questioning extends the duration of the stop. The state maintains that defendant’s proposed rule is too rigid and prohibits an officer from making any unrelated inquiry without constitutional justification. The state argues that, as the Court of Appeals has held, additional questioning is permissible during an "unavoidable lull" in an investigation of the traffic violation, such as when the driver is searching for requested documents. Further, the state argues that, when an officer asks questions and requests consent to search a vehicle, it does not amount to a constitutional violation because neither action imposes any additional restraint on a motorist’s liberty or freedom of movement beyond what is already in place by virtue of the traffic stop itself.

In addressing the party’s arguments, we first reiterate that there are both statutory and constitutional limitations on an officer’s authority to investigate unrelated crimes during a traffic stop. For example, ORS 810.410 governs an officer’s ability to conduct an investigation during a traffic stop for a traffic violation, and, under that statute, officers are permitted to make additional, unrelated inquiries only in specific circumstances. See ORS 810.410(3)(c) (An officer "[m]ay make an inquiry into circumstances arising during the course of a detention and investigation * * * that give rise to a reasonable suspicion of criminal activity."); ORS 810.410(3)(e) (When circumstances give rise to reasonable suspicion of criminal activity, an officer "[m]ay request consent to search in relation to [those] circumstances.").

Notwithstanding that statute, however, any evidence obtained when an officer exceeds that authority cannot be suppressed unless the exclusion of the evidence is required by the state or federal constitutions. See ORS 136.432(1) (so stating); State v. Rodgers/Kirkeby , 347 Or. 610, 620-21, 227 P.3d 695 (2010) (discussing ORS 136.432(1) ). Since ORS 136.432 was enacted, defendants seeking to exclude evidence have, as defendant does here, asserted constitutional arguments in support of their motions to suppress. See State v. Watson , 353 Or. 768, 778, 305 P.3d 94 (2013) (so stating). Thus, we turn now to the parties’ constitutional arguments.

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." For purposes of Article I, section 9, a seizure occurs when (1) a police officer intentionally and significantly interferes with an individual’s liberty or freedom of movement; or (2) a reasonable person, under the totality of the circumstances, would believe that...