State v. McIntyre

• Decision Date: 26 May 2021
• Docket Number: A170565
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Erin Colleen MCINTYRE, Defendant-Appellant.

311 Or.App. 726

489 P.3d 593

STATE of Oregon, Plaintiff-Respondent,

v.Erin Colleen MCINTYRE, Defendant-Appellant.

A170565

Court of Appeals of Oregon.

Argued and submitted November 23, 2020.

May 26, 2021

Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

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 Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

AOYAGI, J.

Defendant was a passenger in a vehicle during a traffic stop. While one police officer processed a traffic citation for the driver, another officer arrived with a drug-detection dog and walked around the vehicle. The dog alerted, leading to the seizure of methamphetamine from defendant's purse (or backpack) and incriminating statements by defendant. Defendant was arrested and charged with unlawful possession. Before trial, she moved to suppress the evidence as resulting from an unlawful seizure under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The trial court denied the motion on the basis that the evidence was lawfully obtained "during an unavoidable lull." Defendant proceeded to a bench trial, and the trial court found her guilty of unlawful possession of methamphetamine, ORS 475.894. Defendant appeals, assigning error to the denial of her motion to suppress.¹ For the following reasons, we reverse and remand for further proceedings.

We review the denial of a motion to suppress for legal error and defer to the trial court's findings of fact if there is constitutionally sufficient evidence in the record to support them. State v. Sexton , 278 Or. App. 1, 2, 378 P.3d 83 (2016).

Beginning with preservation, defendant has always maintained that she was unlawfully seized. We agree with the state, however, that the particular claim of error that she raises on appeal—that the police unlawfully expanded the scope of the traffic stop, even if they did not unlawfully extend its duration—is unpreserved. This case is analogous to State v. Hallam , 307 Or. App. 796, 479 P.3d 545 (2020), in that regard. The defendant in Hallam moved to suppress evidence seized during a traffic stop, the trial court denied her motion on "unavoidable lull" grounds, and, on appeal, she made the same argument that ultimately prevailed in State v. Arreola-Botello , 365 Or. 695, 451 P.3d 939 (2019).

Hallam , 307 Or. App. at 798, 801, 479 P.3d 545.² That is, she argued on appeal that the police had unlawfully expanded the subject matter of the stop, regardless of whether they extended the duration. Id. at 801, 479 P.3d 545. Our explanation as to why that argument was unpreserved applies equally here (except that defendant's written motion in this case was more fulsome than the written motion in Hallam ):

"Here, nothing in defendant's written motion sufficiently apprised either the state, or the trial court, of the Arreola-Botello subject matter limitation argument that she advances on appeal. And our review of the hearing on the motion before the trial court shows no indication that the bare bones written motion was supplemented by Arreola-Botello -style arguments. Rather, the arguments at the suppression hearing, understandably, tracked the law in effect at the time under [ State v. Rodgers/Kirkeby , 347 Or. 610, 227 P.3d 695 (2010) ]. Accordingly, the subject matter limitation argument advanced on appeal is unpreserved."

Id . at 803, 479 P.3d 545.

It follows that our review in this case is limited to plain error—and defendant has requested plain-error review (in the alternative to arguing preservation). See ORAP 5.45(1) (allowing for discretionary plain-error review). To qualify for plain-error review, three requirements must be met: (1) it must be an error of law; (2) the point must be obvious, i.e. , not reasonably in dispute; and (3) the error cannot require us to go outside the record or select among competing inferences. State v. Terry , 333 Or. 163, 180, 37 P.3d 157 (2001), cert. den , 536 U.S. 910, 122 S.Ct. 2368, 153 L.Ed.2d 189 (2002). If those requirements are met, it is a matter of discretion whether we will reverse on plain-error grounds. Id . at 180 n. 11, 37 P.3d 157.

Defendant argues that the trial court plainly erred, because it denied her motion to suppress based on the drug investigation occurring during an "unavoidable lull" in the traffic stop, which reasoning is plainly erroneous after Arreola-Botello . We agree that, in light of Arreola-Botello , the trial court plainly erred in denying defendant's motion to suppress on the ground that it did. Application of the "unavoidable lull" doctrine is an error of law. It is obvious after Arreola-Botello that the application of that doctrine is error. See State v. Calvert , 214 Or. App. 227, 233, 164 P.3d 1169 (2007) ("Whether an error is plain is determined with reference to the law existing at the time of the appellate decision."). And we need not go outside the record or select among competing inferences to determine that the trial court erred.³ The requirements for plain-error review are therefore met. Moreover, it is appropriate under the circumstances to exercise our discretion to correct the plain error, particularly given the substantial change in the law that has occurred, the significance of the evidence to the prosecution and the defense, and the fact that defendant could not have successfully raised the subject-matter limitation on traffic stops earlier given the state of the law at the time of her trial. See Terry , 333 Or. at 180 n. 11, 37 P.3d 157 (considerations for exercising discretion).

At the same time, we disagree with defendant that the proper remedy is outright reversal. Rather, we agree with the state that the proper course is to reverse and remand for reconsideration of the suppression motion in light of Arreola-Botello .⁴ Had the necessary factual findings been made, it would be a legal question whether (and when) defendant was seized for purposes of Article I, section 9. See State v. Stevens , 364 Or. 91, 93, 100-02, 430 P.3d 1059 (2018) (taking the facts found by the trial court, and then deciding whether and when the defendant was seized for purposes of Article I, section 9 ). Here, however, faced with defendant's contention that she was unlawfully seized, the trial court assumed arguendo that she was seized, without making any factual findings relative to that issue, and denied suppression based on the then-existing unavoidable-lull doctrine. The court's only factual finding pertained to when the drug dog arrived at the scene relative to the events of the traffic stop (a disputed point), as relevant to the applicability of the unavoidable-lull doctrine.

On this record, it is not possible to address the legal question of whether defendant was seized at the relevant point for purposes of Article I, section 9, without factual findings as to exactly what occurred during this particular traffic stop. See State v. Ehly , 317 Or. 66, 78, 854 P.2d 421 (1993) ("The determination whether a person has been ‘seized’ under Article I, section 9, requires a...