482 P.3d 150
Or. Ct. App.2021Background
- Deputies on a "street crimes" mission stopped a Volkswagen Jetta for reported traffic violations (rolling stop, wide turn); officers intended narcotics investigation and brought a drug dog.
- Officers approached and flanked the vehicle with lights flashing; officer Leininger told the passenger (Soto-Navarro) to "keep your hands where I can see them." She complied.
- Within about 30 seconds a drug-detection dog circled the car and alerted on the passenger side; officers then searched and found methamphetamine, paraphernalia, cash, and phones; defendant was arrested and indicted.
- Defendant moved to suppress, arguing she was seized before the dog sniff and that the dog sniff unlawfully extended that seizure under Article I, § 9 and the Fourth Amendment; the trial court denied suppression relying on the now-abrogated "unavoidable lull" doctrine.
- The Oregon Supreme Court vacated and remanded in light of State v. Arreola-Botello; on en banc reconsideration the Court of Appeals held the officer’s hand-direction was a seizure and, under Arreola-Botello’s subject-matter limits, the dog sniff unlawfully extended that seizure—reversing and remanding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an officer’s directive to a passenger to "keep your hands where I can see them" is a seizure under Article I, § 9 | It was an ordinary, noncoercive encounter, not a seizure | The command was a show of authority that significantly restrained liberty (a seizure) | Yes — such hand-placement directives are seizures under Article I, § 9 |
| Whether a dog sniff during a traffic stop violated Article I, § 9 by extending the seizure beyond activities related to the stop (per Arreola-Botello) | The sniff did not unlawfully extend the stop (or was within an "unavoidable lull") | The sniff was unrelated to the traffic-stop purpose and lacked independent justification, so it unlawfully extended the seizure | Yes — under Arreola-Botello the sniff was not subject-matter related and unlawfully extended the seizure |
| Whether a passenger can obtain suppression when a traffic-stop-related investigative activity violated Article I, § 9 (standing/whose rights were violated) | A passenger cannot suppress evidence based solely on a violation of the driver’s rights | Passenger either had her own seizure or should be able to vindicate the subject-matter limits; suppression appropriate here | Court based decision on defendant’s own seizure and unlawful extension; suppression granted (driver-standalone issue left for another case) |
| Whether the initial seizure (before the sniff) was justified by officer safety or processing the traffic stop, and if that justification saves the later dog deployment | Initial seizure was reasonably justified for officer safety and to process the traffic stop | Defendant did not contest lawfulness of the initial seizure; argued the subsequent sniff exceeded that justification | Initial seizure could be justified by safety/processing, but the dog sniff exceeded that justification and therefore unlawfully extended the seizure |
Key Cases Cited
- State v. Arreola-Botello, 365 Or 695 (Oregon Supreme Court) (investigative activities during a traffic stop are subject to subject-matter and durational limits; abolished the "unavoidable lull")
- State v. Najar, 287 Or App 98 (Or. Ct. App.) (officer orders restricting hand movement constitute a seizure)
- State v. Stevens, 364 Or 91 (Oregon Supreme Court) (passengers are not automatically seized by a traffic stop of the driver)
- State v. Ehret, 184 Or App 14 (Or. Ct. App.) (passenger may not suppress evidence solely on the basis of a driver’s constitutional violation)
- State v. Backstrand, 354 Or 392 (Or. Ct. App.) (Article I, § 9 seizure test: show of authority or reasonable-person restriction on liberty)
- Rodriguez v. United States, 575 U.S. 348 (U.S. Supreme Court) (Fourth Amendment rule limiting dog-sniff prolongation of traffic stops; relevant federal precedent considered)
- State v. Sherriff, 303 Or App 638 (Or. Ct. App.) (applies Arreola-Botello to conclude unrelated dog sniffs are generally not permissible during traffic stops)