State v. Sexton, 278 Or. App. 1

Background

Police surveilled defendant's residence for suspected drug activity and observed heavy foot/vehicle traffic; deputies followed a car in which defendant was a passenger and stopped it for traffic and an equipment violation.
Deputy Dipietro (who knew defendant from prior contacts) arrived, asked defendant (and the driver) for consent to search the car with a drug dog; both refused.
Dipietro then retrieved his dog and walked it around the exterior of the car; the dog alerted at the driver’s door; deputies subsequently removed defendant, observed a syringe fall at her feet, and the syringe tested positive for methamphetamine.
At the suppression hearing, the stopping officer testified he stopped for a traffic violation observed by another officer and for an equipment violation he observed, but gave no specific facts about the violations; the other officer who observed the traffic violation did not testify.
The trial court denied suppression; on appeal the majority held no Article I, §9 seizure occurred when the dog was walked, but reversed under the Fourth Amendment because the record lacked articulable facts showing reasonable suspicion for the initial stop; a concurrence would have resolved the case under Article I, §9 by finding a seizure when the dog was walked.

Issues

Issue	Prosecution's Argument	Defendant's Argument	Held
Whether passenger was seized under Article I, §9 by the initial traffic stop	No—passenger status alone does not constitute a seizure; no show of authority directed at defendant	Yes—equipment violation could implicate an owner and a reasonable owner wouldn’t feel free to leave	Held: Not seized under Article I, §9 at the initial stop (majority)
Whether Dipietro’s walking the drug dog after refusal constituted an Article I, §9 seizure of defendant	No—asking for consent and an exterior dog sniff were not a coercive show of authority; dog sniff is not a search	Yes—bringing the dog after refusal was ‘‘something more’’ and a coercive show of authority that restrained defendant	Held: Majority — no Article I, §9 seizure when dog was walked; Concurrence — would find a seizure at that point
Whether the initial stop was supported by reasonable suspicion under the Fourth Amendment	Stop was justified by observed traffic and equipment violations and investigatory surveillance of the residence	No—the officers failed to articulate specific facts about the violations or other facts giving rise to reasonable suspicion of drug activity	Held: Stop lacked reasonable suspicion under the Fourth Amendment; therefore the seizure was unlawful (majority)
Whether evidence obtained after the stop must be suppressed	Evidence is admissible if stop and subsequent actions were lawful	Evidence must be suppressed if the initial stop was unlawful or the encounter became a seizure without justification	Held: Reversed and remanded for suppression because the initial stop lacked reasonable suspicion (majority); concurrence would reverse on state-constitutional grounds

Key Cases Cited

State v. Ehly, 317 Or 66 (Or. 1993) (standard of review for suppression motion; trial-court factual findings reviewed for sufficiency)
State v. Ashbaugh, 349 Or 297 (Or. 2010) (distinguishes mere conversation, stops, and arrests under Article I, §9)
State v. Backstrand, 354 Or 392 (Or. 2013) (‘‘show of authority’’ test and ‘‘something more’’ requirement for seizures under Article I, §9)
State v. Mathis, 232 Or App 286 (Or. Ct. App. 2009) (totality of circumstances where arranging a dog sniff led to finding a seizure)
United States v. Sokolow, 490 U.S. 1 (U.S. 1989) (reasonable suspicion requires minimal level of objective justification)
United States v. Lopez-Soto, 205 F.3d 1101 (9th Cir. 2000) (officer must have reasonable suspicion to justify investigative traffic stop)