State v. Hadley

• Decision Date: 29 January 1997
• Citation: 932 P.2d 1194,146 Or.App. 166
• Parties: STATE of Oregon, Appellant, v. Christian Joseph HADLEY, Respondent. 92-4029C2; CA A83868.
• Court: Oregon Court of Appeals

Page 1194

932 P.2d 1194

146 Or.App. 166

STATE of Oregon, Appellant, v. Christian Joseph HADLEY, Respondent.

92-4029C2; CA A83868.

Court of Appeals of Oregon In Banc.

Argued and Submitted Dec. 21, 1995.

Resubmitted In Banc Sept. 11, 1996.

Decided Jan. 29, 1997.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. On the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Ann Kelley, Assistant Attorney General.

Ingrid MacFarlane, Deputy Public Defender, argued the cause for respondent. With her on the brief was Sally L. Avera, Public Defender.

ARMSTRONG, Judge.

The state appeals from an order granting defendant's motion to suppress evidence found in the search of his vehicle. ORS 138.060(3). Defendant consented to the search, but the court held that the officer lacked authority to request that consent. We affirm.

On November 3, 1992, Oregon State Trooper Johnson saw two vehicles being driven on a public highway, one of which was towing the other. Because the tow was being conducted in an illegal manner, Johnson turned on the overhead lights on his patrol car and stopped the drivers of the two cars for the violation. Johnson spoke to the driver of the towing vehicle and to defendant, who was steering the towed vehicle. Johnson prepared traffic citations and turned off his overhead lights, but he left his amber lights flashing. He gave defendant a citation, returned his identification, explained the citation and court process to defendant, said "take care" and began walking away. He then stopped, turned back and asked defendant if there were any controlled substances or weapons in the towed vehicle. Defendant replied "No." Johnson asked defendant for permission to search the vehicle, which defendant gave. It appears from the uncontradicted testimony of defendant at the hearing on the motion to suppress that defendant was still standing outside the car when Johnson asked for permission to search.

During the hearing on the motion to suppress, defendant testified:

"Q. Did you ever get the impression that you were free to leave?

"A. As soon as I got the ticket I thought that was the case until * * * he then asked me about my probation.

"Q. Okay, what did he ask you about your probation?

"A. He asked if I was aware that I was on probation, and I told him immediately, yes, I was. He asked what for. I had at that time * * * informed him of what it was for. Then he asked if it was okay to search me, and I told him that it was part of my probation stipulations; of course he could search me."

Johnson conducted a search of the car and found a controlled substance, methamphetamine, in it and arrested defendant. ORS 475.992(4).

The trial court granted defendant's motion to suppress evidence of the methamphetamine on the ground that the officer lacked authority to ask defendant for consent to search. The court held that the continued investigation was unlawful in the absence of reasonable suspicion that a crime had been committed. The state assigns error to that ruling, which we review for errors of law. ORS 138.220; see State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993).

The controversy in this case arises from uncertainty about the rationale and implications of State v. Dominguez-Martinez, 321 Or. 206, 895 P.2d 306 (1995). In Dominguez-Martinez, the court concluded that an officer's questions about narcotics and request for consent to search, after initiating a traffic stop, were unlawful under ORS 810.410(3)(b). ¹ In so holding, the court stated variously:

"It also is clear * * * that an officer who stops a person for a traffic infraction may investigate only that infraction, unless the state can point to some basis other than the traffic infraction to broaden the scope of the investigation."

and

"Moreover, it is clear that, after the investigation reasonably related to the traffic infraction is complete, an officer does not have authority under ORS 810.410 to continue to detain the person stopped for the traffic infraction."

321 Or. at 212, 895 P.2d 306. The court then concluded:

"The trooper's authority to detain the two men dissipated when he completed the investigation 'reasonably related to the traffic infraction * * * and issuance of citation.' ORS 810.410(3)(b). Thus, as in [State v.] Farley, [308 Or. 91, 775 P.2d 835 (1989),] the officer's authority to detain defendant under the statute had dissipated, and the men should have 'been allowed to proceed' without further detention. Accordingly, the trooper exceeded his authority to stop and detain a motorist in order to conduct a traffic investigation under ORS 810.410(3)."

321 Or. at 213, 895 P.2d 306 (footnote omitted).

Thus, Dominguez-Martinez may reasonably be read as turning on either, or both, of two principles. First, an officer's inquiries that are unrelated to the bases of a traffic stop violate ORS 810.410(3)(b) because they exceed the permissible scope of the traffic stop. Second, an officer's inquiries that are unrelated to the bases of a traffic stop impermissibly extend a motorist's detention. It is appropriate for this court, at least in interim fashion, to amplify Dominguez-Martinez's holding and to provide some guidance to police agencies and lower courts as to its proper application.

To date, we have twice undertaken that function. See State v. Aguilar, 139 Or.App. 175, 912 P.2d 379, rev. den. 323 Or. 265, 918 P.2d 846 (1996); State v. Foster, 139 Or.App. 303, 912 P.2d 377, rev. den. 323 Or. 691, 920 P.2d 550 (1996). ² In Aguilar, the officer stopped the defendant for a traffic infraction and, thereafter, elicited the defendant's consent to search. It was undisputed that the traffic stop had not ended at the time the officer obtained consent to search. Applying Dominguez-Martinez, we held that the officer "lacked authority, based solely on his belief that defendant had committed a traffic infraction, to ask defendant about drugs or request his consent to a search for drugs." 139 Or.App. at 180, 912 P.2d 379 (footnote omitted). ³ Accordingly, Aguilar rests on the premise that the officer's inquiry impermissibly exceeded the scope of an ongoing traffic stop, i.e., absent some independent source of reasonable suspicion, an officer cannot engage in inquiries unrelated to the bases of a traffic stop during a traffic stop.

In State v. Foster, the defendant owned and was a passenger in a car stopped for a traffic infraction. The driver was arrested for a parole or probation violation and placed in a patrol car. The officer who had effected the traffic stop then asked the defendant if there were drugs in the car and obtained permission to search the car. On those facts, we held that Dominguez-Martinez compelled suppression of the fruits of the alleged consent search, because the traffic stop had ended when the driver was arrested and placed in the patrol car, and, "[a]t that point, [the officer] needed a basis other than the traffic infraction to detain and question defendant." 139 Or.App. at 307, 912 P.2d 377.

Thus, in Aguilar, there was no dispute that the traffic stop was ongoing at the time the officer requested consent, and we based our holding on a determination that the officer's inquiries exceeded the scope of the ongoing traffic stop. Conversely, in Foster, we concluded that the traffic stop had, in fact, ended at the time the officer engaged in unrelated inquiries, and we based our holding on a determination that those inquiries impermissibly extended the passenger/defendant's detention from a traffic stop.

This case falls, at least factually, somewhere between Aguilar and Foster: In Aguilar, it was undisputed that the traffic stop was ongoing when consent was requested, and in Foster, it was beyond dispute that the traffic stop had ended by the time consent was requested. Here, in contrast, the issue was whether the stop had ended before Officer Johnson had requested consent to search and, even if it had, whether that request unlawfully extended defendant's detention.

The bright line answer to that threshold inquiry in this and similar cases is that a traffic stop continues until the motorist has had an objectively and temporally reasonable opportunity to move on. As a practical matter, that means, in virtually all instances, that the traffic stop continues for Dominguez-Martinez purposes until the motorist has had a "real time" opportunity to move on. There must, in other words, be a distinct temporal "break in the action" between an officer's indication that a motorist is free to go and any unrelated inquiries.

That clear and objectively based test is commonsensical, consistent with Dominguez-Martinez and Aguilar, and relatively easy to apply. Moreover, it gives proper effect to the restrictions embodied in ORS 810.410(3)(b). By requiring a real temporal break between the traffic stop and any unrelated inquiries, it dissipates the effects of the traffic stop detention and, consequently, "keep[s] traffic infractions decriminalized." State v. Porter, 312 Or. 112, 119, 817 P.2d 1306 (1991). ⁴

In applying that test, the state bears the burden of proving that the requisite substantial temporal break occurred. Consent searches are an exception to the constitutional warrant requirement, State v. Arnold, 115 Or.App. 258, 261-62, 838 P.2d 74 (1992), rev. den. 315 Or. 312, 846 P.2d 1161 (1993), and the state, as the proponent of the fruits of such a search, must demonstrate that consent was, in fact, validly obtained. Id. at 261, 838 P.2d 74. Because ORS 810.410(3)(b) precludes officers from seeking consent beyond the scope of a traffic stop, the state must demonstrate that: (1) the request for consent was reasonably related to the basis of the traffic stop; (2) the request for consent pertained to some independently sufficient non-traffic justification for the stop or its continuation, Dominguez-Martinez, 321 Or. at 212, 895 P.2d 306; or (3)...