State v. Pichardo
| Decision Date | 20 January 2017 |
| Docket Number | No. 1,CA A150488,CC 110833156,SC S063885,1 |
| Citation | 360 Or 754 |
| Parties | STATE OF OREGON, Petitioner on Review, v. VICTOR JAVIER PICHARDO, Respondent on Review. |
| Court | Oregon Supreme Court |
On review from the Court of Appeals.*
Leigh A. Salmon, Assistant Attorney General, Salem, argued and the cause and filed the brief for petitioner on review. Also on the brief were Ellen F. Rosenblum Attorney General, and Benjamin Gutman, Solicitor General.
Jed Peterson, O'Connor Weber LLC, Portland, argued the cause and filed the brief for respondent on review.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
An officer stopped defendant to investigate whether he was helping another person evade the police. During the stop, the officer asked defendant for consent to a search for drugs. The primary question in this case is whether the officer's request for consent was reasonably related to the reason for the stop and thus did not extend it in violation of Article I, section 9, of the Oregon Constitution. The trial court ruled that the officer's request for consent did not unreasonably extend the stop. The Court of Appeals reversed. It held that an unrelated request for consent extended the stop in violation of Article I, section 9, and that defendant's consent had not attenuated that illegality. State v. Pichardo, 263
Or App 1, 326 P3d 624 (2014). We allowed the state's petition for review, vacated the Court of Appeals decision, and remanded the case to the Court of Appeals, which adhered on remand to its decision. See State v. Pichardo, 356 Or 574, 342 P3d 87 (2014) (); State v. Pichardo, 275 Or App 49, 364 P3d 1 (2015) (). We allowed the state's petition for review from the decision on remand and now affirm the Court of Appeals decision.
On August 2, 2011, Officer Long and his partner were on patrol in Gresham.1 They received a report from the dispatcher that other officers had tried to execute an arrest warrant on a person named Hamilton, who had fled. The dispatcher described Hamilton and said that he had last been seen jumping a fence at 18837 SE Yamhill Street and running west. The dispatcher added that Hamilton had discarded a backpack as he fled.
Long and his partner drove to the area near SE 188th Avenue and Yamhill Street. While Long's patrol car was traveling eastbound on Yamhill Street, he noticed defendant's car stopped in the middle of a traffic lane on SE 187th Avenue, approximately one block from the area where Hamilton had fled. Long saw a person who matched Hamilton's description (and who turned out to be Hamilton) running towards defendant's car. Hamilton opened thefront passenger door of defendant's car, jumped into the passenger's seat, and leaned the seat back. Based on what he saw, Long was "concerned that [defendant] was assisting [Hamilton] to get out of the area with officers chasing him" and that Hamilton could have passed contraband to defendant.
Long and his partner turned on their patrol car's overhead lights and, within 10 seconds of seeing Hamilton get into defendant's car, pulled their patrol car in front of defendant's car, blocking it from going forward. Other officers arrived with their patrol car's overhead lights activated and parked their car behind defendant's car, blocking it from backing up. Three officers removed Hamilton from defendant's car at gunpoint.
Long went to the driver's side of defendant's car. He told defendant "just to keep his hands where we could see them." Defendant put his hands on the steering wheel, and Long "covered" defendant while the other officers were taking Hamilton into custody. Long asked defendant to step out of the car, which he did. Long then asked defendant if he had a driver's license or insurance. Defendant replied that he had insurance but no driver's license. Long later testified that, "[a]t that point, I asked [defendant] if I could have consent to search him for any drugs," to which defendant replied, "Yes, you can." As Long began to pat defendant down, defendant told Long that he had heroin in his left pants pocket. After pulling a small plastic bag of heroin out of defendant's pocket, Long placed defendant under arrest for possession of a controlled substance.
The state charged defendant with possession of heroin. Before trial, defendant moved to suppress the evidence resulting from the stop. At the hearing on that motion, Long testified that he stopped defendant for impeding traffic in violation of ORS 811.130. Later, he added that he "was concerned that [defendant] was assisting the other person to get out of the area with officers chasing him." The trial court found that the stop of defendant's car was supported by reasonable suspicion, and it rejected defendant's argument that Long unreasonably extended the stop by asking for consent to search defendant for drugs. After the trial court denied defendant's suppression motion, defendant entered a conditional guilty plea, which preserved his right to appeal the trial court's pretrial ruling. See ORS 135.335 (authorizing conditional pleas).
On appeal, the state argued that the stop was justified because the officers reasonably suspected that defendant was attempting to help Hamilton evade the police in violation of ORS 162.325 or ORS 162.247.2 Relying on Court of Appeals cases, the state argued that " 'no authority supports the proposition that an officer cannot, during the course of a [criminal] stop that is supported by reasonable suspicion * * *, inquire whether the stopped person is carrying weapons or contraband.' " (Quoting State v. Lamb, 249 Or App 335, 342, 277 P3d 581 (2012)).
The Court of Appeals disagreed. Pichardo, 263 Or App at 8. It explained that asking an unrelated question that prolongs a stop beyond the time ordinarily required to complete it violates Article I, section 9, unless the officer has independent reasonable suspicion to justify the additional detention. Id. at 5-6. The court concluded that, in this case, Officer Long's request for consent had extended the stop and that he did not have reasonable suspicion to believe that defendant possessed drugs. Id.3 Accordingly, it held that Long's request violated Article I, section 9. Relying on State v. Hall, 339 Or 7, 115 P3d 908 (2005), the court also held that defendant's consent did not attenuate that illegality. Id. at 8.
The state petitioned for review, arguing that Long's request for consent had not impermissibly extended the stop. It reasoned that the range of permissible questions in a criminal stop is greater than in a traffic stop, and it argued that, in the context of this case, Long's request for consent was constitutionally reasonable. The state also argued that defendant's consent was sufficient to attenuatethe taint of any illegality. This court allowed the state's petition for review, vacated the Court of Appeals decision, and remanded for further consideration in light of recent cases clarifying the attenuation analysis in Hall. Pichardo, 356 Or at 574. On remand, the Court of Appeals adhered to its initial conclusion that defendant's consent had not attenuated the illegality. Pichardo, 275 Or App at 58.
On review, the state raises two issues. It argues initially that Long's request for consent did not unlawfully extend the stop because the request was reasonably related to the stop. Alternatively, it argues that, if Long's request did unlawfully extend the stop, defendant's consent was sufficient, in the context of this case, to attenuate that illegality. We begin with the first issue that the state raises.
The state's argument on that issue is narrow. The state does not dispute that, as a factual matter, Long's request for consent extended the stop. Cf. State v. Rodgers, 219 Or App 366, 372, 182 P3d 209 (2008) (), aff'd sub nom State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010).4 The state also does not argue that Long developed a reasonable suspicion, during the course of the stop, that defendant possessed drugs, which would justify his request for consent even if the request were unrelated to the initial reasons for which he stopped defendant. Rather, the state's first argument focuses on one issue—whether Long's request was reasonably related to the stop.
We note, as an initial matter, that the premise of the state's argument is correct. If Long's request for consent was "reasonably related" to the purpose of the detention, then...
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...of the danger that the officer perceived and the reason for the officer's inquiry."Id. at 429-30; see also State v. Pichardo, 360 Or 754, 762, 388 P3d 320 (2017) (noting that "[t]he reasonable relationship test that the court articulated in [inter alia] Jimenez is not a demanding one"). App......