State v. Dawson

• Decision Date: 16 November 2016
• Docket Number: A155787
• Citation: 282 Or.App. 335,386 P.3d 165
• Parties: State of Oregon, Plaintiff–Respondent, v. Sean Ulysses Dawson, Defendant–Appellant.
• Court: Oregon Court of Appeals

282 Or.App. 335

386 P.3d 165

State of Oregon, Plaintiff–Respondent,

v.Sean Ulysses Dawson, Defendant–Appellant.

A155787

Court of Appeals of Oregon.

Submitted August 19, 2015.

November 16, 2016

Peter Gartlan, Chief Defender, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Sean Dawson filed the supplemental brief pro se.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Peenesh H. Shah, Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge.

Opinion

FLYNN, J.

Defendant appeals from a judgment of conviction for unlawful delivery of cocaine, possession of cocaine, and criminal forfeiture. His first assignment of error challenges the trial court's denial of defendant's motion to suppress evidence that the state obtained through a search of defendant's vehicle during a traffic stop. Defendant argues that the search was unlawful, despite defendant's voluntary consent to the search, because the request for consent to search followed an unlawful extension of the traffic stop. We conclude that the officer unlawfully extended the traffic stop when he questioned defendant about a new criminal matter without reasonable suspicion to investigate that crime, rather than going forward with processing the traffic infraction. The record does not permit us to affirm the trial court on the state's alternative theory, that the evidence need not be suppressed because defendant's consent to search was independent of the unlawful police conduct. Accordingly, we reverse without reaching several evidentiary challenges that defendant raises in his second through fourth assignments of error.

I. FACTUAL BACKGROUND

We begin by describing the facts pertinent to defendant's motion to suppress, in a manner consistent with the trial court's ruling. See State v. Watson , 353 Or. 768, 796, 305 P.3d 94 (2013) ("[W]e are bound by the trial court's findings of historical fact to the extent that those findings are supported by evidence in the record."). Defendant was initially stopped because the sport utility vehicle (SUV) that he drove had no front license plate, a violation of ORS 803.540(1)(b). When the officer asked defendant if he knew that the SUV did not have a front license plate, defendant responded, "No, I didn't. It's not my car." When the officer asked who owned the car, defendant responded, "My—my friend. I'm just borrowing it." Defendant could not provide the registration for the SUV, but gave the officer his driver's license and an insurance card that named defendant as the insured. The insurance card specifically identified the SUV that defendant was driving and it had been issued several months before.

The officer was suspicious that defendant was driving the SUV without permission, and therefore committing the crime of unauthorized use of a vehicle (UUV). See ORS 164.135. The officer returned to his patrol car and ran the license plate number through a database search, which told him the name of the registered owner and that the SUV had not been reported stolen. However, that did not eliminate the officer's suspicion that defendant was driving the SUV without permission, so he also ran defendant's name through various law enforcement databases in an effort to determine if defendant had some connection to the registered owner. The databases showed no connection between defendant and the registered owner.

The officer then returned to the car to ask more questions about defendant's connection to the registered owner of the SUV. The officer told defendant that the officer "thought it was suspicious that he was borrowing a vehicle and that he had an insurance card with only his name on it." Defendant responded that he had "been borrowing it for a little bit" from a friend named "Doug." Doug was not the name of the registered owner. Defendant also provided the officer with a phone number for "Doug," and the officer returned to his car to call the number. The call was picked up by an answering machine that gave no name for the person to whom the number belonged. The officer remained concerned that defendant was using the SUV without permission, but he shifted to running a driving and "wanted person inquiry" on defendant. Defendant also had a passenger, and the officer ran a "wanted person inquiry" on her as well.

While waiting for the results of those inquiries, the officer returned to defendant and asked him to step out of the SUV. In part, the officer made this request because, throughout the encounter, defendant had been watching the officer constantly through his side mirror, as if defendant were "tracking" him. In part, he made the request because the height of the SUV's windows prevented the officer from seeing defendant's hands, which the officer felt put him "at a disadvantage." And in part, the officer asked defendant to step out because he still suspected that defendant was not "supposed to have this vehicle."

Once defendant had stepped out of the vehicle, the officer noticed a faint odor of marijuana coming from the vehicle. A question about the presence of "guns, drugs, or illegal documents" followed; defendant admitted to having "a joint in the ashtray"; and defendant then gave consent when the officer asked for permission to search the vehicle. The search of the vehicle revealed two packages of cocaine and a substantial amount of cash.

II. PROCEDURAL BACKGROUND

Before trial, defendant moved to suppress the evidence that the police found in the vehicle. He argued that the officer lacked reasonable suspicion to extend the duration of the traffic stop to question defendant about the possible crime of UUV and also lacked a reasonable safety concern to justify having defendant step out of the vehicle and, thus, that the subsequent search was not lawful. The state argued that the officer did not unlawfully extend the duration of the traffic stop, because his initial questions into defendant's authority to use the SUV fell within the permissible scope of processing the traffic infraction, and that any investigation beyond the scope of a traffic stop was justified by reasonable suspicion that defendant was committing the crime of UUV. The state did not make the alternative argument that, even if the officer unlawfully extended the stop, the motion to suppress should be denied because defendant's consent to search was sufficiently attenuated from any such extension.

The trial court at one point expressed doubt that the officer had reasonable suspicion to investigate the crime of UUV, but denied defendant's motion to suppress because the court concluded:

"It was a lawful search. I don't think the officer went beyond the scope of what his investigation would allow. It was a search that—that subject to—he got proper consent."

A jury found defendant guilty, and he appeals from the judgment of conviction for unlawful delivery of cocaine, ORS 475.880, unlawful possession of cocaine, ORS 475.884, and criminal forfeiture, ORS 131.582.

III. DISCUSSION

On appeal, defendant does not challenge the trial court's determination that he voluntarily consented to the search. However, he argues that the evidence found during the search must be suppressed because defendant gave consent after the officer unlawfully extended the traffic stop to investigate the crime of UUV.

We begin with a review of relevant legal principles. Without a warrant or a valid exception to the warrant requirement, a search is " 'per se unreasonable,' " and in violation of Article I, section 9, of the Oregon Constitution. State v. Unger , 356 Or. 59, 72, 333 P.3d 1009 (2014) (quoting State v. Baker , 350 Or. 641, 647, 260 P.3d 476 (2011) (emphasis in original)). A defendant's voluntary consent to a search is one such exception. State v. Musalf , 280 Or.App. 142, 151, 380 P.3d 1087 (2016). However, if the consent follows an unlawful stop or unlawful search, evidence obtained in the search must, nevertheless, be suppressed if the police "exploited [an] illegality" to obtain the evidence. Unger , 356 Or. at 71, 333 P.3d 1009. As the Supreme Court explained in Unger ,

"When, for example, the police stop an individual without reasonable suspicion, the individual's liberty is restrained in violation of Article I, section 9. Because the person stopped is unable to terminate the interaction with police, he or she is subject to police authority in excess of constitutional bounds and is thereby placed at a disadvantage relative to the constitutional position that he or she would have occupied in the absence of the illegal police interference."

Id . at 73, 333 P.3d 1009. Thus, we first consider whether defendant's liberty was "restrained in violation of Article I, section 9." See id.

A. The Permissible Scope of the Traffic Stop

When an officer has probable cause to believe that a person has committed a traffic violation, the officer may lawfully stop the person and investigate. ORS 810.410(3)(b) ; Watson , 353 Or. at 774, 305 P.3d 94 (explaining that requiring a driver to pull over under those circumstances is a permitted "stop and a seizure for Article I, section 9, purposes"). However, both Article I, section 9, and ORS 810.410(3)(b), restrict the permissible scope of that stop to activities that are " 'reasonably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any)[.]' " Watson , 353 Or. at 778, 305 P.3d 94 (quoting State v. Rodgers/Kirkeby, 347 Or. 610, 623, 227 P.3d 695 (2010) ); see also State v. Alvarado , 257 Or.App. 612, 627, 307 P.3d 540 (2013) (explaining that an officer unlawfully extends a stop when, after the officer has all of the information necessary to complete the traffic investigation, the officer extends the duration of the stop by starting an investigation into a new matter that is unrelated to the traffic stop).

On appeal, there is no dispute that the officer had...