State v. Hallam

• Decision Date: 09 December 2020
• Docket Number: A166144 (Control),A166151
• Citation: 307 Or.App. 796,479 P.3d 545
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Melissa Ann HALLAM, Defendant-Appellant.
• Court: Oregon Court of Appeals

307 Or.App. 796

479 P.3d 545

STATE of Oregon, Plaintiff-Respondent,

v.Melissa Ann HALLAM, Defendant-Appellant.

A166144 (Control)

A166151

Court of Appeals of Oregon.

Argued and submitted May 8, 2019.

December 9, 2020

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services, argued the cause and filed the brief for appellant.

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 Lagesen, Presiding Judge, and James, Judge, and Landau, Senior Judge.

JAMES, J.

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, assigning error to the trial court's denial of her motion to suppress evidence obtained during a traffic stop. This case was litigated, both at trial and on appeal, before the Oregon Supreme Court decided/issued its opinion in State v. Arreola-Botello , 365 Or. 695, 451 P.3d 939 (2019). In Arreola-Botello , the court refocused the inquiry away from the unlawful extension of a traffic stop, see State v. Rodgers/Kirkeby , 347 Or. 610, 227 P.3d 695 (2010), to the proper scope of a traffic stop, announcing, in essence, a subject matter limitation on the questions that an officer can ask during such an encounter.

Defendant's arguments on appeal in this case mirror the arguments that ultimately prevailed in Arreola-Botello . At oral argument here, the state acknowledged that a subject matter limitation, as ultimately announced in Arreola-Botello, would be dispositive on the merits of this case, noting that under any such rule of law, the state's case here would be "in trouble." However, the state argues that the subject matter limitation argument defendant raises on appeal was not preserved before the trial court, and that for reasons of preservation, we should affirm. Defendant, for her part, claims that the subject matter limitation argument was preserved.

As we explain, we agree with the state that defendant failed to preserve a subject matter limitation argument before the trial court. However, in light of the change in the law brought about by Arreola-Botello , and in light of the state's acknowledgment that the facts of this case would not withstand Arreola-Botello ’s subject matter limitation—a concession that is well-taken—the issue qualifies as one of "plain error." ORAP 5.45(1) ; State v. Jury , 185 Or. App. 132, 136, 57 P.3d 970 (2002), rev. den. , 335 Or. 504, 72 P.3d 636 (2003) ("Error, in general, must be determined by the law existing at the time the appeal is decided, and not as of the time of trial." (Footnote omitted.)). We exercise our discretion under Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382, 823 P.2d 956 (1991) to correct the error and, accordingly, reverse and remand.

The pertinent facts are undisputed. Douglas County Sheriff Deputies Gardner and Reavis stopped defendant after she committed a traffic infraction. Defendant could not produce proof of registration or insurance and searched for the documents for several minutes, including opening the trunk of her car at one point. As she searched in the trunk, deputies saw a box of .22 caliber ammunition, though they saw no weapon. Gardner returned to the patrol car to write citations, while Reavis remained at the car with defendant.

Gardner contacted dispatch to run defendant's license and to complete a computerized criminal history (CCH) report. Both Gardner and Reavis testified that running a check for warrants and driving records takes less than three minutes, while running a CCH check takes several minutes longer. Gardner did not know whether defendant had a criminal record, but he knew that she "associate[d] with numerous drug users and drug dealers." Based on these associations, Gardner assumed defendant might have a recent felony conviction. And based on the ammunition observed in the trunk of the car, he assumed she might have a firearm (and further assumed that would be illegal if she had a recent felony conviction). While waiting for a response from dispatch about defendant's criminal record, Gardner wrote her citations for driving uninsured, failure to register a vehicle, and failure to stop when emerging. He spent about 10 minutes in the patrol car.

In the meantime, Reavis's conversation with defendant quickly escalated from small talk to questions about her drug use, whether she had any contraband in her car, and when she was last convicted of a felony. He asked defendant whether she had been able to "stay clean." As Reavis testified:

"* * * I asked her about her drug use and asked her if she had been able to stay clean for a while and she told me that she had. I asked her when the last time she used was and she couldn't tell me specifically but she said it had been a long time ago. I told her that's not what I had been hearing while speaking to people in the area there. I asked her when her last felony conviction was and she told me it was over 15 years ago. I asked her what it was for. She said it was for meth. I then asked her if there was anything illegal in the vehicle or if she had anything illegal in the vehicle and she told me she did not."

Reavis told defendant that he had heard she was using meth from "people * * * in the community." Reavis then asked defendant to "prove" that she was not using drugs. As Reavis testified:

"* * * I told her that I would like to give her the opportunity to prove me, or prove it to me that, that, that she was being clean and she was truthfully not using methamphetamine and that she didn't have any[thing] illegal with her. And then I asked her if she would give me consent to search the vehicle."

Defendant gave her consent and stepped out of the car, holding her purse tightly to her body. This raised Reavis's suspicions, and he asked her if he could search her purse. Defendant opened her purse, revealing a purple bag which she told Reavis contained "personal stuff." At this point Gardner leaned out of his patrol car to tell Reavis that defendant had had a felony conviction within the previous 15 years.

Reavis began to feel nervous about defendant holding the purse and asked her if he could put it on the roof of her car. She reluctantly gave it to him. Then, Reavis questioned defendant about the contents of her purse:

"I asked her if I searched her purse if there would be anything illegal inside of it and she just looked at me. She didn't say anything. And it was just kind of that awkward silence for a little bit. And then I asked her if she would please be honest with me and she told me I have meth in it."

Reavis then searched the purse and found 0.6 grams of meth and a snort tube inside a purple bag. Reavis and Gardner finished writing defendant's vehicle code citations and added another for possession of methamphetamine ( ORS 475.894 ).

Defendant moved to suppress the evidence of meth and paraphernalia before trial. She filed a bare bones "points and authorities" motion—one in which she listed a series of constitutional provisions and cases, but offered no actual argument as to how those authorities applied to the case, or what was her legal theory as to why suppression was constitutionally required. At argument on the motion, she focused on the unlawful extension of the traffic stop, an argument tracking the analysis of Rodgers/Kirkeby , 347 Or. at 610, 227 P.3d 695.

The trial court determined that the stop was not unlawfully extended by Gardner requesting defendant's computerized criminal history or any of the deputies’ other actions:

"[B]ased on the testimony that I, that I was provided by Deputy Reavis, Reavis and Deputy Gardner, I don't find that there was any contrary evidence indicating that that was an unreasonable amount of time. Although the, Deputy Gardner could not say exactly each minute what he was doing, he very clearly indicated that he was waiting for the criminal history check by dispatch. There was time, the time that that took. He was also starting to fill out the citation while he was also watching Deputy Reavis’ contact with [defendant] to make sure that he was watching for officer safety."

In the stipulated facts trial that followed, the court found defendant guilty of unlawful possession of methamphetamine and two vehicle code violations, and this appeal followed.

On appeal, defendant assigns error to the trial court's denial of her motion to suppress, arguing first, under Rodgers/Kirkeby , that the deputies’ inquiries unlawfully extended the traffic stop. But, in the alternative, she argues that the deputies’ investigation was impermissible in scope . As defendant argues on appeal, Reavis "significantly interfered with defendant's liberty by forcing her to interact with him on a subject for which Reavis had no basis to question [her]."

With that background, we turn to the issue on appeal, beginning with preservation. Defendant argues that her written motion, in particular the portion of the motion which stated "[t]he intensity and duration of the stop exceeded the legal basis giving rise to the stop" preserved the Arreola-Botello argument she now advances on appeal. We disagree.

It is unclear what, if anything , defendant's written motion preserved. "A written motion to suppress ‘serves dual functions[:] It frames the issues that the court will be required to decide, and it notifies the state of the contentions that it must be prepared to address at the hearing on the motion.’ " State v. Parnell , 278 Or. App. 260, 265, 373 P.3d 1252 (2016) (quoting State v. Sweet , 122 Or. App. 525, 529, 858 P.2d 477 (1993) (brackets in Parnell ; internal citation omitted)); see also State v. Anderson-Brown , 277 Or. App. 214, 220, 369 P.3d 1248, rev. den. , 360 Or. 465, 384 P.3d 152 (2016).

A "points and authorities" style motion, like the one filed here, may, in some circumstances, be minimally adequate to meet the requirements of Uniform Trial Court Rule (UTCR) 4.060(1)...