423 P.3d 112
Or. Ct. App.2018Background
- Coos Bay officers stopped a car for traffic infractions; defendant was a passenger.
- Officer Ereth took a drug-detection dog (Buddy) and walked it around the car while Reserve Officer McGriff began writing a citation.
- McGriff paused writing the citation for about 30 seconds to "cover" Ereth during the dog sniff.
- The dog alerted near the passenger door; officers removed and patted down both driver and defendant, then searched the car and found controlled substances in defendant's purse.
- Defendant moved to suppress evidence as fruit of an unlawful seizure; trial court denied the motion, defendant entered a conditional guilty plea, and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the dog sniff itself constituted a seizure under Article I, §9 | State: sniff did not amount to coercive restraint or a direct accusation | Defendant: sniff conveyed investigation and deprived her of freedom to leave | Court: sniff did not create a seizure under Article I, §9 (relied on Sexton) |
| Whether the dog sniff unlawfully extended the traffic stop in violation of the Fourth Amendment | State: no unlawful extension; dog alerted while citation being issued | Defendant: McGriff stopped writing the citation to cover the sniff, measurably extending the stop | Court: the sniff did measurably extend the stop; no reasonable suspicion justified extension; suppression denied in trial court was error — reversal and remand |
| Preservation of Fourth Amendment claim on appeal | State: defendant failed to preserve because Fourth Amendment not argued at hearing | Defendant: written motion cited Fourth Amendment and argued the stop was "extended"; trial court ruled on delay | Court: claim was preserved — parties and court addressed the extension issue |
| Attenuation / admissibility of evidence after unlawful seizure | State: (did not argue successful attenuation) | Defendant: evidence is fruit of unlawful seizure and should be suppressed | Court: state did not meet burden to show attenuation; evidence must be suppressed |
Key Cases Cited
- Rodriguez v. United States, 135 S. Ct. 1609 (2015) (traffic stop may not be prolonged beyond mission; dog sniff that adds time requires reasonable suspicion)
- Arizona v. Johnson, 555 U.S. 323 (2009) (for Fourth Amendment purposes, officers effectively seize driver and passengers for duration of traffic stop)
- State v. Sexton, 278 Or. App. 1 (Or. Ct. App.) (2016) (a dog sniff around a stopped vehicle did not, by itself, constitute a seizure under Article I, §9)
- State v. Evans, 284 Or. App. 806 (Or. Ct. App.) (2017) (passengers are seized for the duration of a traffic stop under Fourth Amendment)
- State v. Backstrand, 354 Or. 392 (Or.) (2013) (defining seizure under Article I, §9 as a restraint on liberty by force or show of authority)
- State v. Bailey, 356 Or. 486 (Or.) (2015) (state bears burden to prove attenuation to overcome exclusionary rule)