State v. Booth, 355 P.3d 181

Background

Trooper Macy stopped defendant for speeding; during the stop Macy observed defendant unusually dressed for the heat and visibly nervous with facial twitching.
Macy asked for license/registration/insurance, asked about weapons, marijuana, and methamphetamine; defendant denied weapons/marijuana and said “not that I know of” to methamphetamine.
Macy ran checks, learned of a prior drug conviction, returned, said he suspected methamphetamine, gave a written consent-to-search form (which informed defendant he could refuse), and obtained consent; defendant later said he agreed after being told a drug dog would take over two hours to arrive.
Macy searched the car and found methamphetamine residue and paraphernalia; defendant was charged with unlawful possession and moved to suppress the evidence as fruit of an unlawful extension of the traffic stop.
The trial court denied the suppression motion, finding no unlawful extension; defendant conditionally pleaded guilty and appealed. The state conceded on appeal the stop was unlawfully extended but argued the consent was sufficiently attenuated to justify admission.
The Court of Appeals accepted the concession that the stop was unlawfully extended, declined to affirm on the state’s alternative attenuation ground because the state had not raised that argument below and the record was not developed on exploitation/attenuation, and reversed and remanded.

Issues

Issue	State's Argument	Defendant's Argument	Held
Whether officer unlawfully extended a traffic stop by questioning and requesting consent to search	No unlawful extension; questions were lawful during stop	Officer extended detention beyond traffic investigation without reasonable suspicion	Stop was unlawfully extended (state conceded; court agreed)
Whether evidence is admissible because defendant consented after being told he could refuse	Consent was voluntary and defendant was advised of right to refuse, so consent attenuated the illegality	Consent flowed from exploitation of the unlawful extension and must be suppressed	Court would not affirm on attenuation because state did not raise it below and record insufficient to decide exploitation
Whether appellate court may affirm on an alternative ground not argued below	Right-for-the-wrong-reason doctrine allows affirmance only if record supports alternative and would be same if raised below	State asked to rely on attenuation for first time on appeal	Court declined to apply alternative because the trial court never considered attenuation and the record might have developed differently if raised below
Burden of proof on consent following unlawful stop	State bears burden to show consent voluntary and not product of exploitation	Defendant argues state must prove lack of exploitation; consent attributable to unlawful stop	Court reiterated state’s Unger burden and remanded for suppression to be granted unless state can prove non-exploitation on proper record

Key Cases Cited

Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 20 P.3d 180 (2001) (setting conditions for affirmance on alternative grounds)
State v. Unger, 356 Or. 59, 333 P.3d 1009 (2014) (state bears burden to prove consent not product of exploitation after illegal stop)
State v. Lorenzo, 356 Or. 134, 335 P.3d 821 (2014) (advising of right to refuse consent is relevant to voluntariness/attenuation)
State v. Musser, 356 Or. 148, 335 P.3d 814 (2014) (decisions addressing attenuation and consent issues following unlawful police conduct)
State v. Rodgers/Kirkeby, 347 Or. 610, 227 P.3d 695 (2010) (police may not extend traffic stop to investigate unrelated matters without reasonable suspicion)
State v. Hall, 339 Or. 1, 115 P.3d 908 (2005) (factors for assessing whether consent was obtained by exploitation of prior illegality)