State v. Juarez-Godinez

• Decision Date: 26 July 1995
• Docket Number: C-21343,R,JUAREZ-GODINE
• Parties: STATE of Oregon, Appellant, v. Rogelioespondent. 92; CA A78977.
• Court: Oregon Court of Appeals

Page 1044

900 P.2d 1044

135 Or.App. 591

STATE of Oregon, Appellant, v. Rogelio JUAREZ-GODINEZ, Respondent.

92C-21343; CA A78977.

Court of Appeals of Oregon In Banc.

Argued and Submitted Feb. 28, 1994.

Resubmitted In Banc June 8, 1995.

Decided July 26, 1995.

Timothy A. Sylwester, Asst. Atty. Gen., argued the cause for appellant. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Helen Lenore Cooper, Salem, argued the cause for respondent. With her on the brief was Ferder, Ogdahl, Brandt & Casebeer.

DEITS, Judge.

The state appeals from a pretrial order suppressing evidence seized pursuant to a search warrant. The warrant was issued on the basis of information obtained by the police during a traffic stop. We affirm.

We recite the facts, which are not disputed, as found by the trial court:

"The Defendant was stopped on October 13, 1992, at approximately 1:25 a.m. for what appeared to be a routine traffic stop for exceeding the maximum speed limit. The Defendant's vehicle did not stop immediately upon seeing Trooper Burdick's overhead lights, but did pull off at the first exist [sic ] ramp that the vehicle came to. Upon making contact with the driver, Trooper Burdick noted that all of the occupants in the vehicle were hispanic, that the Defendant was the driver of the vehicle, and that there was a female passenger in the front passenger seat and a male passenger in the back seat behind the front passenger. Trooper Burdick also observed that there were numerous air fresheners in the vehicle and that there was no luggage visible in the vehicle. Trooper Burdick also noted that the occupants were nicely dressed and that the Defendant had 'salon styled hair.' When asked where they were going to, the occupants told Trooper Burdick that they were on their way home to Tacoma, that they had been visiting a relative in Eugene. When the driver was asked for his driver's license, he was not able to produce one and gave Trooper Burdick the name of Oscar Sanchez. When asked to produce the registration for the vehicle, the Defendant produced a temporary registration in the name of a person who was not present. When a computer check was done on the registered owner, Trooper Burdick was told that the registered owner was on parole. A computer check on the name of Oscar Sanchez revealed that there was an outstanding warrant for Oscar Alverez-Martinez, aka Oscar Sanchez, with a date of birth of September 28, 1971. Trooper Burdick then re-contacted the Defendant and advised him about the warrant. The Defendant then told Trooper Burdick that the Defendant's name was Oscar Sanchez-Sanchez and that he had never been arrested and was not the person described on the warrant. During this time, Trooper Lewis had arrived at the scene and primarily acted as backup for Trooper Burdick. Trooper Burdick also contacted dispatch and requested that Senior Trooper Milton and his canine, 'Bud,' respond to the scene. After discussing the outstanding warrant with the Defendant, Trooper Burdick then placed the Defendant under arrest for failing to display a driver's license. Approximately 15 minutes had elapsed since the initial stop at this time. Defendant was handcuffed and placed in the rear of Trooper Burdick's patrol vehicle. Trooper Burdick then contacted the Defendant in the Trooper's patrol car and advised him that they were having a problem with people trafficking in narcotics on the highways, and Trooper Burdick asked the Defendant if the Defendant had any drugs, weapons or large amount of money in the Defendant's vehicle. The Defendant told Trooper Burdick that he did not. The Defendant refused several requests by the Trooper to search the vehicle. The occupants of the vehicle were not told they were free to leave, even though the female passenger had what appeared to be a valid Washington driver's license and the computer check on her revealed 'no wants.' The occupants of the vehicle never asked to leave, nor did they ask if they could drive the vehicle from the scene. Trooper Milton and his dog arrived at the scene at 2:11 a.m., approximately 46 minutes after the initial stop for the traffic violation. Trooper Milton contacted the driver of the car and was again refused consent to search the vehicle. Bud, the dog, was then allowed to sniff the outside of the vehicle and 'alerted' on the crack of the lower left corner of the passenger door. Trooper Milton determined that Bud was reacting to the odor of controlled substances. The occupants of the vehicle were again contacted and permission was requested to search the vehicle. The occupants again refused to grant consent to search the vehicle. The search warrant was subsequently obtained for the search of the vehicle based on the above information. Neither the Defendant, nor the occupants of the vehicle were informed that they were free to leave the scene of the stop until after the dog search was complete. Trooper Burdick testified that he could have impounded the vehicle prior to the dog search if he had not been able to verify with the registered owner that the occupants had permission to use the vehicle. He also testified that he did not attempt to contact the registered owner of the vehicle. Trooper Burdick also testified that he was not aware of any statute authorizing him to impound the vehicle, but that it was their office policy to do so if the registered owner could not be located to verify permission to use the vehicle."

Based on the evidence seized during the execution of the warrant, defendant and the two passengers were charged by indictment with three counts of unlawful delivery of a controlled substance. ORS 475.992. Defendant moved to suppress the evidence on the ground that the search was "unconstitutional." ¹ He argued that once he was arrested, the basis for the original stop had dissipated and, lacking reasonable grounds to believe that a crime had been committed, Burdick had no grounds to detain the vehicle and the passengers. He also argued that because the inquiry should have ended after defendant and the passengers refused to consent to a search, the subsequent 50-minute detention was unreasonably long. Finally, he argued that the use of Bud constituted a warrantless search that was not supported by either reasonable suspicion or probable cause. After a hearing on defendant's motion, the court reached the following conclusions, and suppressed the evidence:

"Based on the above [findings], the Court finds that the detention of the Defendant's vehicle was unreasonable under the circumstances, and that the application of 'Bud' to the vehicle was overly intrusive and constituted a warrantless search."

On appeal, the state characterizes as the "threshold question * * * whether Trooper Burdick unlawfully 'detained' the vehicle defendant was driving * * * and, if so, whether that illegality provides any basis to suppress evidence." The state argues that the vehicle was not detained, but that even if it was detained, the detention was lawful. ² The state also contends that the dog-sniff was not a search.

We first consider whether the trial court correctly concluded that the vehicle was detained unlawfully. Based on its findings, quoted above, the trial court concluded that "the detention of the Defendant's vehicle was unreasonable under the circumstances." The legal basis of the court's opinion is not entirely clear. The court may have been analogizing the situation to an investigatory "stop" of a person. Under ORS 131.615(1), an officer who reasonably suspects that a person has committed a crime may briefly detain that person to make a reasonable inquiry. The detention and inquiry, however, may be for no longer than a reasonable time. ORS 131.615(2). Although some courts have applied that type of analysis to hold that brief detentions of personal property for investigatory purposes are lawful where the police have a reasonable suspicion that the property contains evidence of a crime, see, e.g., United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (holding that 90-minute detention of suitcase was excessive), we have not done so. Regardless, such an application of those statutes was never presented to the trial court, nor do the parties propose on appeal that we now adopt that approach.

The trial court may have been holding, in essence, that the vehicle was seized unlawfully. If so, we do not agree that the vehicle was seized before the dog-sniff. A seizure occurs when there is a

"significant interference with a person's possessory or ownership interests in property. The seizure of an article by the police and the retention of it (even temporarily) is a significant intrusion into a person's possessory interest in that 'effect.' " State v. Owens, 302 Or. 196, 207, 729 P.2d 524 (1986).

In evaluating whether there was a seizure of the vehicle here, we are bound by the trial court's findings of historical fact if evidence supports them. Cf. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968).

The state contends that the vehicle was not seized, but that it remained at the scene as an unavoidable consequence of defendant's arrest. See State v. Woods, 134 Or.App. 53, 894 P.2d 511, rev. den. 321 Or. 340, 898 P.2d 192 (1995) (request that passenger exit arrested driver's car was practical consequence of officer's need to tow car). Defendant argues that the vehicle was seized because of Burdick's specific actions and statements, and that that seizure was independent of defendant's arrest. After defendant and the passengers refused to consent to a search of the vehicle, Burdick did tell them that officer Milton was coming, that the dog was going to sniff the vehicle, and that, if the dog alerted, Burdick would apply for a search warrant. However, as the trial court found, defendant never asked that the vehicle be released, nor did the passengers, who were not under arrest, ask to leave with...