State v. Fowler

• Decision Date: 19 August 2015
• Docket Number: A143166.,08CR2058FE
• Citation: 273 Or.App. 20,359 P.3d 276
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Cheryl Ann FOWLER, Defendant–Appellant.
• Court: Oregon Court of Appeals

273 Or.App. 20

359 P.3d 276

STATE of Oregon, Plaintiff–Respondent

v.Cheryl Ann FOWLER, Defendant–Appellant.

08CR2058FE

A143166.

Court of Appeals of Oregon.

Submitted on Remand March 26, 2015.

Decided Aug. 19, 2015.

Peter Gartlan, Chief Defender, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the supplemental brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the opening brief for respondent. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rolf C. Moan, Senior Assistant Attorney General, filed the supplemental brief for respondent.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

Opinion

ARMSTRONG, P.J.

This case is before us on remand from the Supreme Court, which vacated our decision in State v. Fowler, 245 Or.App. 502, 261 P.3d 95 (2011), vac'd and rem'd, 356 Or. 574, 342 P.3d 87 (2014) (Fowler I, ) and ordered reconsideration based on a trio of recent decisions: State v. Unger, 356 Or. 59, 333 P.3d 1009 (2014) ; State v. Lorenzo, 356 Or. 134, 335 P.3d 821 (2014) ; and State v. Musser, 356 Or. 148, 335 P.3d 814 (2014). In Fowler I, we reversed defendant's conviction for possession of methamphetamine because we concluded that the trial court had erred in denying defendant's motion to suppress evidence derived from an unlawfully extended traffic stop. The Supreme Court thereafter issued its decisions in Unger, Lorenzo , and Musser, which modified the analytical framework used to determine whether a person's consent to a search was derived from unlawful police conduct. The state contends that, under the new framework, we should conclude on remand that defendant's consent was not the result of police exploitation of the unlawfully extended traffic stop. Defendant counters that the state is urging a basis for affirmance that was not raised below and that we should not consider for the first time on appeal. We agree with defendant that, if the state had raised below the argument that it raises now, the record might have developed differently and in a manner that could affect the disposition of the case. Consequently, we conclude that the alternative basis for affirmance that the state urges is not one on which we can rely to affirm the trial court's decision.

Officer LeDoux stopped defendant for a traffic violation and asked for defendant's driver's license, car registration, and insurance card. Defendant did not have an insurance card because the car that she was driving was not insured. Consequently, LeDoux impounded the car and, following his usual practice, asked defendant if she had any illegal weapons or items in the car or on her person. Defendant responded that she did not. Defendant's answer made LeDoux suspicious, however, because defendant glanced at her purse and at the driver's seat of her car as she answered the question. Those actions led LeDoux to believe that defendant had illegal items in her purse. Consequently, he asked defendant for consent to search her vehicle, person, and purse. When he made that request, LeDoux had defendant's driver's license and all of the information that he needed to issue a citation for the traffic violation. Defendant consented to the search, which revealed methamphetamine in her purse and a glass pipe in her car that had traces of methamphetamine. Defendant was arrested and given Miranda warnings, after which she admitted that she had methamphetamine in her purse.

The state charged defendant with possession of methamphetamine. Defendant moved before trial to suppress evidence obtained during the traffic stop. Defendant contended that LeDoux had unlawfully extended the traffic stop when he asked her whether she had any illegal items with her and, in turn, for consent to search and, consequently, that her consent had been obtained in violation of Article I, section 9, of the Oregon Constitution.¹ The state responded that LeDoux had not unlawfully extended the stop and that defendant had voluntarily consented to the search. The state did not oppose the motion on the ground that, even if LeDoux had unlawfully extended the stop, defendant's consent did not derive from the unlawful extension of the stop. The trial court denied defendant's motion, concluding that LeDoux had not unlawfully extended the stop and that defendant had voluntarily consented to the search.

Defendant was subsequently convicted of possession of methamphetamine and appealed the resulting judgment of conviction. In Fowler I, we issued a per curiam opinion that reversed the trial court's denial of defendant's suppression motion. The Supreme Court granted review and remanded the case to us for further consideration in light of its decision in Unger. Under Unger, when a defendant has established that an unlawful stop preceded a consensual search, the state bears the burden of demonstrating that the consent was voluntary and was not the product of the unlawful police conduct. 356 Or. at 74–75, 333 P.3d 1009. The Supreme Court explained that courts must consider the totality of the circumstances in making those determinations, including the temporal proximity between the unlawful police conduct and the voluntary consent, the existence of intervening circumstances, the presence of circumstances that might mitigate the effect of the police misconduct, the nature of the misconduct, and the purpose and flagrancy of the misconduct. Id. at 79–81, 85–87, 333 P.3d 1009.

The state concedes that the extension of the traffic stop was unlawful. We agree and accept the state's concession. However, applying the new Unger framework, the state contends that defendant's consent to search was not the product of the unlawful extension of the stop because the extension “did not directly reveal information that prompted the request for consent to search” and the unlawful conduct “was minimal in duration and severity.”

Defendant notes that ...