Defendant appeals from a judgment of conviction for unlawful delivery of cocaine, possession of cocaine, and criminal forfeiture. His first assignment of error challenges the trial court’s denial of defendant’s motion to suppress evidence that the state obtained through a search of defendant’s vehicle during a traffic stop. Defendant argues that the search was unlawful, despite defendant’s voluntary consent to the search, because the request for consent to search followed an unlawful extension of the traffic stop. We conclude that the officer unlawfully extended the traffic stop when he questioned defendant about a new criminal matter without reasonable suspicion to investigate that crime, rather than going forward with processing the traffic infraction. The record does not permit us to affirm the trial court on the state’s alternative theory, that the evidence need not be suppressed because defendant’s consent to search was independent of the unlawful police conduct. Accordingly, we reverse without reaching several evidentiary challenges that defendant raises in his second through fourth assignments of error.
I. FACTUAL BACKGROUND
We begin by describing the facts pertinent to defendant’s motion to suppress, in a manner consistent with the trial court’s ruling. See State v. Watson,
The officer was suspicious that defendant was driving the SUV without permission, and therefore committing the crime of unauthorized use of a vehicle (UUV). See ORS 164.135. The officer returned to his patrol car and ran the license plate number through a database search, which told him the name of the registered owner and that the SUV had not been reported stolen. However, that did not eliminate the officer’s suspicion that defendant was driving the SUV without permission, so he also ran defendant’s name through various law enforcement databases in an effort to determine if defendant had some connection to the registered owner. The databases showed no connection between defendant and the registered owner.
The officer then returned to the car to ask more questions about defendant’s connection to the registered owner of the SUV. The officer told defendant that the officer “thought it was suspicious that he was borrowing a vehicle and that he had an insurance card with only his name on it.” Defendant responded that he had “been borrowing it for a little bit” from a friend named “Doug.” Doug was not the name of the registered owner. Defendant also provided the officer with a phone number for “Doug,” and the officer returned to his car to call the number. The call was picked up by an answering machine that gave no name for the person to whom the number belonged. The officer remained concerned that defendant was using the SUV without permission, but he shifted to running a driving and “wanted person inquiry” on defendant. Defendant also had a passenger, and the officer ran a “wanted person inquiry” on her as well.
While waiting for the results of those inquiries, the officer returned to defendant and asked him to step out of the SUV. In part, the officer made this request because, throughout the encounter, defendant had been watching the officer constantly through his side mirror, as if defendant were “tracking” him. In part, he made the request because the height of the SUV’s windows prevented the officer from seeing defendant’s hands, which the officer felt put him “at a disadvantage.” And in part, the officer asked defendant to step out because he still suspected that defendant was not “supposed to have this vehicle.”
Once defendant had stepped out of the vehicle, the officer noticed a faint odor of marijuana coming from the vehicle. A question about the presence of “guns, drugs, or illegal documents” followed; defendant admitted to having “a joint in the ashtray”; and defendant then gave consent when the officer asked for permission to search the vehicle. The search of the vehicle revealed two packages of cocaine and a substantial amount of cash.
II. PROCEDURAL BACKGROUND
Before trial, defendant moved to suppress the evidence that the police found in the vehicle. He argued that the officer lacked reasonable suspicion to extend the duration of the traffic stop to question defendant about the possible crime of UUV and also lacked a reasonable safety concern to justify having defendant step out of the vehicle and, thus, that the subsequent search was not lawful. The state argued that the officer did not unlawfully extend the duration of the traffic stop, because his initial questions into defendant’s authority to use the SUV fell within the permissible scope of processing the traffic infraction, and that any investigation beyond the scope of a traffic stop was justified by reasonable suspicion that defendant was committing the crime of UUV. The state did not make the alternative argument that, even if the officer unlawfully extended the stop, the motion to suppress should be denied because defendant’s consent to search was sufficiently attenuated from any such extension.
“It was a lawful search. I don’t think the officer went beyond the scope of what his investigation would allow. It was a search that—that subject to-—-he got proper consent.”
A jury found defendant guilty, and he appeals from the judgment of conviction for unlawful delivery of cocaine, ORS 475.880, unlawful possession of cocaine, ORS 475.884, and criminal forfeiture, ORS 131.582.
III. DISCUSSION
On appeal, defendant does not challenge the trial court’s determination that he voluntarily consented to the search. However, he argues that the evidence found during the search must be suppressed because defendant gave consent after the officer unlawfully extended the traffic stop to investigate the crime of UUV.
We begin with a review of relevant legal principles. Without a warrant or a valid exception to the warrant requirement, a search is “‘per se unreasonable,”’ and in violation of Article I, section 9, of the Oregon Constitution. State v. Unger,
“When, for example, the police stop an individual without reasonable suspicion, the individual’s liberty is restrained in violation of Article I, section 9. Because the person stopped is unable to terminate the interaction with police, he or she is subject to police authority in excess of constitutional bounds and is thereby placed at a disadvantage relative to the constitutional position that he or she would have occupied in the absence of the illegal police interference.”
Id. at 73. Thus, we first consider whether defendant’s liberty was “restrained in violation of Article I, section 9.” See id.
A. The Permissible Scope of the Traffic Stop
When an officer has probable cause to believe that a person has committed a traffic violation, the officer may lawfully stop the person and investigate. ORS 810.410(3)(b); Watson,
On appeal, there is no dispute that the officer had probable cause to stop defendant to investigate the traffic infraction of driving without a front license plate, ORS 803.540(l)(b). Defendant argues, however, that the officer’s second round of questions—after identifying the registered owner of the car—went beyond those reasonably related to that traffic infraction. We agree.
We have explained that, although an officer conducting a traffic stop “is free to question a motorist about matters unrelated to the traffic infraction during an unavoidable lull in the investigation, such as while waiting for the results of a records check,” the officer is not “free to question the motorist about unrelated matters as an alternative to going
The state contends, however, that the officer’s questions about defendant’s permission to drive the vehicle were reasonably related to the traffic stop, because the officer sought to determine if defendant had permission to drive away at the end of the traffic stop. The state relies on Watson, in which the Supreme Court observed that “[w]hen police officers detain a person on probable cause of violating a traffic law, it is reasonable to determine whether the person is licensed to continue on his or her way after the encounter ends.”
Here, the officer extended the duration of the traffic stop to investigate a matter beyond whether defendant had valid driving privileges. After his initial conversation with defendant, the officer was in possession of defendant’s driver’s license and could have proceeded with processing the traffic infraction, including running a records check to verify defendant’s driving privileges. Instead, the officer moved on to investigating an unrelated matter—the crime of UUV—“as an alternative to going forward with the next step in processing the infraction such as the writing or issuing a citation.” See Dennis,
B. Reasonable Suspicion to Investigate UUV
Defendant argues that the officer unlawfully extended the traffic stop because he lacked reasonable suspicion to conduct his investigation into whether defendant was committing the crime of UUV. See State v. Barber,
Although defendant does not dispute that the officer subjectively suspected defendant of committing the crime of UUV, he contends that the officer’s suspicion was not objectively reasonable. Whether an officer has reasonable suspicion to extend a stop is determined as of the time that the stop becomes extended. Alvarado,
The state argues that three facts gave the officer objectively reasonable suspicion, at
The first fact to which the state points—defendant’s nervous behavior—adds little to the reasonable suspicion inquiry, as we have repeatedly emphasized. See, e.g., Alvarado,
The second fact—defendant’s vague, or possibly evasive, statement that he was borrowing the SUV from “[m]y—my friend”—is similarly a fact that does little to make the officer’s suspicion objectively reasonable. See State v. Espinoza-Barragan,
The remaining circumstance that the state identifies— the officer’s inability to find a connection between defendant and the registered owner—creates no reason to suspect that defendant was driving the vehicle without permission, at least given the other circumstances of this case. Although we evaluate whether the officer’s suspicion is objectively reasonable “in light of the officer’s experience,” State v. Martin,
Moreover, any suspicion created by the identified facts must be considered in light of the other facts that were known to the officer at the time he extended the stop and which make any continuing suspicion of UUV not objectively reasonable. Specifically, when the officer searched the official databases to investigate his initial suspicion of UUV, his search confirmed that the SUV had not been reported stolen. Compare State v. Ricks,
Even if the proof of insurance and lack of a theft report do not preclude the possibility that defendant was driving the SUV without permission, reasonable suspicion requires more. See Alvarado,
C. Validity of Consent Following an Unlawful Stop
That illegal extension of the traffic stop, given the record in this case, requires suppression of the evidence obtained from the search of the SUV. As the Supreme Court has explained, once a defendant who challenges the validity of consent to search establishes that his or her consent followed an illegal stop or an illegal search, “the state bears the burden of demonstrating” not only that the consent was voluntary but also that “the voluntary consent was not the product of police exploitation of the illegal stop or search.” Unger,
Here, both the state and defendant agree that the information that the officer learned during the unlawful extension of the stop further heightened his suspicion that defendant was not authorized to be driving the vehicle. Specifically, in response to that additional questioning, defendant told the officer that he was borrowing the SUV from “Doug,” a name that the officer knew to be different from the name of the registered owner. Moreover, defendant provided the officer with a telephone number for Doug that went to an answering machine with a generic message. The officer testified that his continuing suspicion that defendant was not authorized to use the SUV contributed to his request that defendant step out of the car. And, that action led to additional discoveries that made the officer suspect the presence of marijuana in the SUV and, ultimately, to request consent to search.
The state, nevertheless, argues that defendant’s consent to search was sufficiently attenuated from the unlawful conduct that we should affirm the trial court’s denial of defendant’s motion to suppress. The state’s primary argument for why the officer did not exploit the unlawful extension is that, when the officer asked defendant to step out of the vehicle, he was “motivated chiefly by safety concerns rather than defendant’s answers to the purportedly unlawful questions [.] ” The state points to the officer’s “concern that he could not see defendant’s hands,” and the fact that defendant was “unable to take his eyes off of [the officer].”
The state did not argue below that the motion to suppress should be denied, regardless of any purported unlawful extension, because the request to search was sufficiently attenuated from any such extension.
In order to affirm a trial court’s ruling on a basis other than which the court relied, “(1) ‘the facts of record [must] be sufficient to support the alternative basis for affirmance’; (2) ‘the trial court’s ruling
We conclude, as we did in Booth, that we cannot affirm the trial court on the alternative basis proposed by the state because “the trial court did not engage in the fact-specific inquiry necessary to determine whether the state had carried its burden of proving that ‘the consent was independent of, or only tenuously related to, the unlawful police conduct[.]’”
The state does not ask us to remand for further findings related to the suppression motion, and, in any event, we have previously declined to remand under similar circumstances. See Jones,
Reversed and remanded.
Notes
Although the Supreme Court decided Unger after the suppression hearing and trial in this case, “the burden has long been on the state to establish attenuation.” State v. Jones (A154424), 275 Or App 771, 776,