State v. Berry

JurisdictionOregon
PartiesSTATE of Oregon, Plaintiff-Respondent, v. Laura Jean BERRY, Defendant-Appellant.
Citation232 Or. App. 612,222 P.3d 758
Docket Number06CR0317.,A135730.
CourtOregon Court of Appeals
Decision Date23 December 2009

Stephanie Hortsch, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.

Before SCHUMAN, Presiding Judge, and BREWER, Chief Judge, and DEITS, Senior Judge.

SCHUMAN, P.J.

Defendant was convicted of unlawful possession of methamphetamine. ORS 475.894. On appeal, she assigns error to the trial court's denial of her motion to suppress evidence that, she argues, derived from a violation of her rights under Article 1, section 9, of the Oregon Constitution.1 Specifically, she argues that, when the police officer who had stopped her for a traffic violation asked for her consent to search her person and her vehicle, the officer unlawfully extended the duration of the traffic stop without reasonable suspicion of criminal activity. We agree. We therefore reverse and remand.

The following facts are undisputed. Around 2:30 a.m., Officer Lidey saw defendant turn into the parking lot of the Grants Pass railroad depot, a building that also housed a restaurant. The restaurant was closed at the time. Because defendant failed to signal 100 feet before turning, Lidey activated his overhead lights and followed her into the lot. As he approached her car, he saw her make what he described as "furtive movements" toward the center console; defendant testified that she had been looking for her license and registration, and Lidey acknowledged that she might have already had those documents in hand when he reached her car. Lidey also testified that defendant had appeared nervous, but that she had not appeared to be under the influence of drugs or alcohol.

Lidey explained to defendant that he had stopped her for failing to signal. He then asked for her license and registration, which she provided. He could not remember whether he called in defendant's information, but he testified that it would have been his normal protocol to do so. The record contains no evidence concerning when (if ever) Lidey heard back from the records check or when (if ever) he had the information he needed to issue the traffic citation.

During her conversation with Lidey, defendant told him that she had come from a nearby restaurant and that she had pulled into the parking lot because she had promised a friend that she would pick up a banner there. Lidey testified that the restaurant from which defendant had come "has a higher frequency of illegal drug activity." Lidey became suspicious that "unfortunately [defendant] was possibly engaged in maybe some type of illegal activity." He told defendant about his suspicions and explained their bases: "the time of the morning, where she said she was coming from, her nervousness, also the fact that we were pulling in a place where she was going to pick something up that was closed * * * and also the furtive movements upon my approach." Lidey asked defendant if she had anything illegal with her; she told him that she did not. He then asked if he could search her and the car, and she gave him her consent. During the search, he noticed a small bag with a white crystalline substance in defendant's purse, which Lidey correctly believed to be methamphetamine. He then arrested defendant.

Defendant was charged with possession of methamphetamine. Before trial, she moved to suppress the evidence obtained as a result of the consent search. Although she conceded that the initial traffic stop was lawful, she argued that the evidence found was the product of an unlawful extension of that stop in violation of her rights under Article I, section 9, of the Oregon Constitution. The trial court denied the motion, finding that the consent occurred while Lidey "was in the process of conducting the traffic stop and before a citation was written" and concluding that the questioning about matters beyond the traffic stop and the request for consent to search "did not excessively detain" defendant. Defendant entered a conditional guilty plea, reserving the right to appeal the trial court's denial of her motion to suppress. Defendant was convicted, and this appeal followed.

During a traffic stop, a police officer may question the driver about criminal activity, that is unrelated to the stop, even if the officer does not have any suspicion of such activity, without violating Article I, section 9. State v. Amaya, 176 Or.App. 35, 47, 29 P.3d 1177 (2001), aff'd on other grounds, 336 Or. 616, 89 P.3d 1163 (2004). However, an officer cannot expand that authority by detaining the person longer than is necessary to process the traffic stop unless the officer has reasonable suspicion of further criminal activity. "[A]lthough an officer is free to question a motorist about matters unrelated to the traffic infraction during an unavoidable lull in the investigation, such as while awaiting the results of a records check, that officer is not similarly free to question the motorist about unrelated matters as an alternative to going forward with the next step in processing the infraction, such as the writing or issuing of a citation. When an officer has all of the information necessary to issue a citation but instead delays in processing it or in telling the motorist that he or she is free to go, the stop is no longer lawful unless the officer has reasonable suspicion of further criminal activity."

State v. Rodgers, 219 Or.App. 366, 372, 182 P.3d 209, rev. allowed, 345 Or. 301, 194 P.3d 147 (2008).

According to the state, "Lidey questioned defendant about illegal possessions while he was waiting for a response to his request for a warrants check, the prototypical `unavoidable lull' this court discussed in Rodgers." In support of that point, the state notes, first, that the trial court found as fact that the questioning occurred during the stop, and, second, that "[d]efendant does not provide a citation to the record to support her assertion that Officer Lidey had obtained any information from his radio request for a warrants check."

The record supports the trial court's finding that the questioning occurred during the stop, that is, after Lidey had restrained defendant's liberty and before he had informed her that she was free to leave (which, in fact, he never did). We are therefore bound by that finding. That finding, however, does not address the key question: whether, when Lidey began questioning defendant about matters unrelated to the traffic violation, he had received all of the information that he needed in order to proceed with citing her but decided instead to ask unrelated questions and seek consent to search. According to the...

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30 cases
  • State v. Miller
    • United States
    • Oregon Court of Appeals
    • April 13, 2022
    ...in a store parking lot provided the officer with no information that defendant was engaged in illegal activity. See State v. Berry , 232 Or. App. 612, 222 P.3d 758 (2009) (concluding that there was no reasonable suspicion when the defendant, at 2:30 a.m., pulled into the parking lot of a cl......
  • State v. Martin
    • United States
    • Oregon Court of Appeals
    • January 2, 2014
    ...of the circumstances, viewed in light of the officer's experience. Alvarado, 257 Or.App. at 631, 307 P.3d 540;State v. Berry, 232 Or.App. 612, 617, 222 P.3d 758 (2009), rev. dismissed,348 Or. 71, 228 P.3d 582 (2010). The officer's experience is relevant to what inferences the officer may dr......
  • State v. Knapp
    • United States
    • Oregon Court of Appeals
    • October 24, 2012
    ...seat belt violation or that Mace had any legitimate reason for not moving forward with that processing. See, e.g., State v. Berry, 232 Or.App. 612, 616–17, 222 P.3d 758 (2009), rev. dismissed,348 Or. 71, 228 P.3d 582 (2010) (the state has the burden of proving that an investigation of an un......
  • State v. Dawson
    • United States
    • Oregon Court of Appeals
    • November 16, 2016
    ...798, 804, 303 P.3d 975 (2013) ( "defendant's nervousness adds little, if any, weight toward reasonable suspicion"); State v. Berry , 232 Or.App. 612, 618, 222 P.3d 758 (2009), rev. dismissed , 348 Or. 71, 228 P.3d 582 (2010) ("there is nothing inherently suspicious about * * * being nervous......
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1 books & journal articles
  • § 2.4 Reasonable Suspicion
    • United States
    • Criminal Law in Oregon (OSBar) Chapter 2 Stop and Frisk
    • Invalid date
    ...articulable facts supporting officer's belief that defendant was engaged in prostitution); cf. State v. Berry, 232 Or App 612, 617, 222 P3d 758 (2009), rev dismissed, 348 Or 71 (2010) (defendant's "furtive" movements, presence in parking lot of closed business known for drug activity, and n......

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