State v. Soto-Navarro

• Decision Date: 10 February 2021
• Docket Number: A166495 (Control),A166496
• Citation: 482 P.3d 150,309 Or.App. 218
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Teresa SOTO-NAVARRO, Defendant-Appellant.
• Court: Oregon Court of Appeals

309 Or.App. 218

482 P.3d 150

STATE of Oregon, Plaintiff-Respondent,

v.Teresa SOTO-NAVARRO, Defendant-Appellant.

A166495 (Control)

A166496

Court of Appeals of Oregon, En Banc.

Submitted on remand February 06, 2020

Resubmitted en banc September 21, 2020.

February 10, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John P. Evans, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and David B. Thompson, Assistant Attorney General, filed the briefs for respondent.

Before Egan, Chief Judge, and Armstrong, Ortega, DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, Mooney, and Kamins, Judges.

LAGESEN, J.

"[J]ust keep your hands where I can see them," Officer Leininger ordered defendant as he stood next to her car door armed and in uniform, his patrol car with its lights flashing not far behind, his partner, Deputy Gravel, at the driver's door of the Volkswagen Jetta in which defendant had been riding on the passenger side. She complied. Was defendant seized for purposes of Article I, section 9, of the Oregon Constitution ?

We took this matter into full court to consider that question, a question we answer yes. That answer, combined with the Supreme Court's recent rejection of our longstanding Article I, section 9, "unavoidable lull" doctrine, in State v. Arreola-Botello , 365 Or. 695, 451 P.3d 939 (2019), means that the evidence supporting the conviction that defendant challenges on appeal should have been suppressed. Because the trial court, correctly applying the unavoidable lull doctrine later displaced by Arreola-Botello , concluded otherwise, we reverse and remand.

In a stop so pretextual the pretext got lost, Gravel and Leininger pulled over the Jetta in which defendant was a passenger. Gravel and Leininger were on a "street crimes mission" that night, "looking for narcotics and guns, and that kind of thing in the Cornelius area." As "part of the mission," they "had a dog attached to us to come to our traffic stops."

They stopped the Jetta because they had been informed by one source that the car had a narcotics connection,¹ and they had been informed by a different source—a narcotics officer for the City of Beaverton—that he observed the Jetta execute two traffic violations: a rolling stop followed by a too-wide turn. Although, according to Leininger, "it was a traffic stop," pulling the car over was part of their mission that night to find narcotics.

After locating and then stopping the Jetta, Gravel and Leininger, who were armed and in uniform, left the patrol car with its overhead lights on and flashing. They approached and flanked the Jetta, with Gravel taking the driver side and Leininger taking the passenger side. Because he had been concerned by defendant's movements as he approached the car, Leininger directed her to "keep your hands where I can see them." She complied. Gravel and Leininger spoke with the driver and defendant, obtaining their names, but Tux,² the dog attached to their street-crimes mission, and his handler, Deputy DiPietro, arrived within 30 seconds of the start of the stop, soon circled the car, and detected drugs. No one gave any further thought to the California stop and too-wide turn reported by the Beaverton narcotics officer, and no one filled out a traffic citation. Instead, as was the point of that night's "street crimes mission" all along, Tux's detective work gave rise to probable cause to conduct a drug investigation. The investigation revealed that defendant had in her possession 70.28 grams of methamphetamine, multiple methamphetamine pipes, $3,231 in cash, a large quantity of empty plastic baggies, a digital scale, and eight cell phones. That discovery led to defendant's arrest and the indictment for one count of unlawful delivery of methamphetamine (charged as a commercial drug offense), ORS 475.890(2), and one count of unlawful possession of methamphetamine, ORS 475.894.

Defendant moved to suppress the evidence of the drugs, cash, phones, and paraphernalia. Among other things, defendant contended that she had been seized under both Article I, section 9, and the Fourth Amendment to the United States Constitution, before Tux's deployment, and that Tux's deployment then unlawfully extended the seizure in violation of each constitution. Relying on State v. Clemons , 267 Or. App. 695, 341 P.3d 810 (2014), and Rodriguez v. United States , 575 U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015), defendant argued that, for purposes of the Fourth Amendment, she was automatically seized when officers stopped the car in which she was riding and that Tux's sniff unconstitutionally prolonged that seizure under Rodriguez . She argued further that, for purposes of Article I, section 9, "a sufficient show of authority occurred with the officers involved in the traffic stop of the vehicle to demonstrate that [defendant] was also seized under the Oregon Constitution," such that Tux's sniff unlawfully extended the scope of that seizure as well. Apart from arguing that the pretext nature of the traffic stop meant that all evidence should be suppressed and that the unavoidable lull doctrine should have no application at all, defendant did not contend that any seizure of defendant occurring before the dog sniff was an unlawful one; she simply contended that she was seized under both constitutions and that the dog sniff extended the seizure impermissibly.

In response, the state acknowledged that defendant was seized under the Fourth Amendment by virtue of the traffic stop alone but contended that Tux's sniff did not unconstitutionally prolong the stop under the analysis of Rodriguez . As for Article I, section 9, the state argued that defendant's interaction with Leininger "was effectively an encounter" and that Tux's sniff did not extend the traffic stop.

The trial court denied the motion. It first rejected defendant's contention that the pretextual nature of the stop requires suppression of the evidence: "So it is clear that there was, as the officers termed it, a drug mission, or a mission, and there were traffic violations that the officers testified to, and so those were the reasons that [the driver] was pulled over." The court then explained that "the question becomes, was this dog sniff—dog search on the exterior of the car done during the, what we call the unavoidable lull." Finding that the dog sniff "was happening at the same time" as the traffic investigation, the court ruled that the sniff did not extend the stop "and, therefore, probable cause for the drug investigation did not happen outside of the unavoidable lull."

Defendant was subsequently convicted as charged in a stipulated facts trial. She appealed and we initially affirmed without opinion. State v. Soto-Navarro , 298 Or. App. 554, 449 P.3d 566 (2019). Defendant petitioned for review in the Supreme Court. Following its decision in Arreola-Botello , the court allowed defendant's petition, vacated our decision, and remanded for reconsideration in light of Arreola-Botello . State v. Soto-Navarro , 366 Or. 64, 455 P.3d 37 (2019). On remand, the matter was submitted to a department of this court, which allowed the parties to submit supplemental briefing addressing Arreola-Botello . Thereafter, we took the matter into full court to review the trial court's ruling on defendant's motion to suppress under the standard set in Arreola-Botello . As always, we review that ruling by accepting the trial court's supported factual findings and determining "whether the trial court applied legal principles correctly to those facts." State v. Ehly , 317 Or. 66, 74-75, 854 P.2d 421 (1993).

The structure of the officers’ street-crimes mission—in particular, the quick deployment of a drug-detecting dog during a pretextual but lawful traffic stop in a manner that comported with our court's unavoidable lull doctrine—complied with Article I, section 9, under our court's case law at the time of the mission, the time of the trial court's decision in this case, and the time of our initial decision. But the Supreme Court's decision in Arreola-Botello has changed that.

Under Arreola-Botello , "for the purposes of Article I, section 9, all investigative activities, including investigative inquiries, conducted during a traffic stop are part of an ongoing seizure and are subject to both subject-matter and durational limitations." 365 Or. at 712, 451 P.3d 939. "That means that all such activities, including inquiries, must be reasonably related to the purpose of the traffic stop or supported by an independent constitutional justification." State v. Sherriff , 303 Or. App. 638, 647, 465 P.3d 288 (2020) (citing Arreola-Botello , 365 Or. at 711-12, 451 P.3d 939 ; State v. Watson , 353 Or. 768, 778-82, 305 P.3d 94 (2013) ). Accordingly, absent an independent constitutional justification, a drug-detecting dog like Tux generally cannot, consistent with Article I, section 9, sniff a car for drugs during a traffic stop. That is because most traffic violations will have nothing to do with drugs. See, e.g. , Sherriff , 303 Or. App. at 647, 465 P.3d 288 (concluding that there was "no plausible basis for concluding that" a sniff of a car by a drug-detecting dog "had any reasonable relationship to citing [defendant] for a cracked windshield"). As explained by the Supreme Court, this rule operates to deter officers from converting minor traffic stops into criminal investigations in a way that undermines the freedoms protected by Article I, section 9 :

"If, after stopping an individual based on probable cause that the individual committed a traffic offense, an officer may inquire into criminal activity without reasonable suspicion of a specific crime, an officer will have less of an incentive to develop the requisite reasonable suspicion of that crime which ordinarily would be required to stop the individual for a temporary criminal

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