State v. Campoverde
| Decision Date | 02 February 2022 |
| Docket Number | A171801 |
| Citation | 317 Or.App. 347,505 P.3d 466 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Isidro William CAMPOVERDE, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Kali Montague, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge, and DeVore, Senior Judge.*
Defendant appeals a judgment of conviction for possession of methamphetamine, ORS 475.894(2)(b) (2018), amended by Ballot Measure 110 (2020), Or. Laws 2021, ch. 591, § 39.1 He assigns as plain error the denial of his motion to suppress evidence obtained during a traffic stop. For the first time on appeal, he argues that deputies unlawfully expanded the scope of their investigation by engaging in investigative activities and inquiries unrelated to the purpose of the stop. The state responds that defendant's argument does not qualify for plain-error review because it is not obvious that the challenged evidence derived from the deputies’ allegedly unlawful conduct. As we will explain, we agree with defendant that, in light of the change in the law as articulated in State v. Arreola-Botello , 365 Or. 695, 451 P.3d 939 (2019), the deputies’ investigative activities violated defendant's rights under Article I, section 9, of the Oregon Constitution and that the error is apparent on the record. We exercise our discretion to correct the error. Under the circumstances of this case, however, we agree with the state that remanding to the trial court for reconsideration of defendant's motion to suppress in light of Arreola-Botello is the appropriate disposition. As a result, we vacate and remand for further proceedings.
We review the denial of a motion to suppress for legal error and are bound by the trial court's factual findings if there is any constitutionally sufficient evidence to support them. State v. Escudero , 311 Or. App. 170, 171, 489 P.3d 569 (2021).
The relevant facts are undisputed. Coos County Deputies Whitmer and Smith pulled over defendant's car for failure to display a front license plate. Whitmer approached the driver's side of defendant's car and asked to see defendant's driver's license. Defendant told Whitmer that he had a suspended license. While Whitmer contacted dispatch to confirm defendant's license suspension, Smith, standing by the passenger side of the car, overheard dispatch report that defendant's license was suspended on a misdemeanor level and that defendant was on probation for drug-related offenses. Smith asked defendant for consent to search the car, and defendant refused. When Whitmer returned to the driver's side of defendant's car and learned that defendant had denied permission to search his car, Whitmer contacted defendant's probation officer. Defendant again refused consent to search his car, at which point defendant's probation officer placed a detainer on defendant for leaving Douglas County and for his refusal to consent to a search. Whitmer arrested defendant for driving while suspended and pursuant to the probation officer's detainer.
Once defendant was out of the car, Smith, still standing at the front passenger window, saw an orange straw in the center console that had previously been blocked from view by defendant's body. The straw was cut to a length shorter than a standard drinking straw, and a white crystalline material appeared on the tip of the straw. Based on his training and experience, Smith determined that the straw was an object that likely was used to ingest methamphetamine. The deputies searched the vehicle and found two small bags containing a usable amount of methamphetamine.
365 Or. at 712, 451 P.3d 939. The court thus rejected the "unavoidable lull" doctrine, under which officers had previously been permitted to ask unrelated investigatory questions without constitutional justification as long as the officer did not delay the processing of a citation or extend the duration of the traffic stop. Id.
On appeal, defendant acknowledges that he failed to preserve a subject-matter limitation argument before the trial court and so he seeks plain-error review. He argues that the deputies’ request for consent to search the car and the call to defendant's probation officer regarding defendant's refusal of the search request were unrelated to the traffic citation or driving while suspended investigations for which the deputies did have constitutional justification.
The state does not argue that those investigative actions were related to the lawful bases for the stop. Instead, the state presents a novel argument couched in the language of plain error. The state argues that plain-error review is unavailable on this record because "it is not obvious that the challenged evidence *** derived from the alleged Article I, section 9, violation." The state argues that the record is undeveloped as to whether Smith was positioned to see the straw irrespective of his request for defendant's consent because defendant failed to make the argument he now advances on appeal. At oral argument, the state asked that, even if we did find an Arreola-Botello violation on the face of the record, we remand the case to allow the trial court to consider whether Smith was in position to see the straw based on the lawful investigation of defendant's suspended license, and thus whether the resulting evidence was unrelated to any unlawful conduct.
We agree with defendant that the deputies’ violation of his rights under Article I, section 9, is an error apparent on the face of the extant record, and we exercise our discretion to correct it. In agreement with the state, however, we conclude that this is an occasion on which it is appropriate to reverse and remand for further proceedings.
The standards for plain-error review are familiar. See ORAP 5.45(1) (). To qualify for plain-error review, three requirements must be met: (1) the error must be an error of law; (2) the point must be obvious and not reasonably in dispute; and (3) the error cannot require us to go outside the record or select among competing inferences. State v. Terry , 333 Or. 163, 180, 37 P.3d 157 (2001), cert. den. , 536 U.S. 910, 122 S.Ct. 2368, 153 L.Ed.2d 189 (2002). If those requirements are met, then we consider whether to exercise our discretion to remedy the error. Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382, 823 P.2d 956 (1991).
In State v. Hallam , 307 Or. App. 796, 799, 479 P.3d 545 (2020), the defendant had been stopped by police for a traffic infraction. While one deputy wrote the traffic citation and ran a criminal-history check, another deputy spoke to the defendant, asked about her potential drug use and weapon possession, and received consent to search her car and purse. Id. at 799-800, 479 P.3d 545. The deputy found methamphetamine in the defendant's purse. Id. at 800, 479 P.3d 545. At a pretrial suppression hearing, like defendant in this case, the defendant did not raise a subject-matter limitation argument as to the deputy's investigative actions related to the search for drugs. Id. at 803, 479 P.3d 545. We concluded on appeal, however, that the deputies’ questions regarding defendant's drug and weapon possession were unrelated to the basis of the traffic stop and were not justified by independent reasonable suspicion that the defendant either possessed drugs or a weapon. Id. at 806-07, 479 P.3d 545. In light of the change in law brought by Arreola-Botello , that violation of defendant's rights under Article I, section 9, was apparent on that record. Id. at 807, 479 P.3d 545.
Like Hallam , the deputies’ investigatory actions challenged by defendant in this case were unrelated to the lawful bases for defendant's stop. There is no dispute that the deputies had probable cause to stop defendant for a traffic infraction for failing to display a front license plate on his car or that, upon requesting identification to investigate that infraction, the deputies discovered that defendant's license was suspended. However, the deputies’ request for consent to search defendant's car for drugs and their resulting call to defe...
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