In this criminal case, defendant appeals a judgment convicting him of unlawful delivery of marijuana, ORS 475.860(2) (Count 1), arguing that the trial court erred in denying his motion to suppress evidence because the evidence derived from a violation of his rights under Article I, section 9, of the Oregon Constitution.
We begin with the facts, which we state consistently with the trial court’s findings. On the evening of February 24, 2009, defendant drove through downtown Lakeview in a white car with California license plates. State Trooper Hargis was conducting a traffic stop there, but after defendant went by, Hargis made a U turn and came up behind defendant’s car. Hargis followed defendant into the parking lot of a service station on Highway 395 one-and-one-half miles north of Lakeview. Hargis intended to buy a cup of coffee at the station. Defendant pulled up to the gas pumps at the station, and Hargis parked his patrol vehicle behind and to the right of defendant’s car. Defendant got out of his car, put some garbage into a garbage can, and walked around the side of the gas station’s convenience store toward the restroom. Hargis got out of his car and looked in the windows of defendant’s car. He did not see anything that caught his attention. Then Hargis walked into the convenience store and bought a cup of coffee.
Hargis was still in the convenience store when defendant came into the store after using the restroom. Defendant bought an energy drink and paid for his gas. Hargis approached defendant and told him that he wanted to talk to him about his failure to use a turn signal at a “Y” intersection between Lakeview and the gas station. Defendant told Hargis that he did signal, and Hargis told him that he had not signaled for 100 feet before the intersection. Then Hargis asked defendant where he was coming from, and defendant said that he had driven from Bend, where he lived, to Reno, Nevada, to visit his grandfather, who was ill, for the weekend and that he was returning to Bend. The car had California license plates because defendant had rented it for the trip. The conversation quickly turned to the topic of marijuana. At some point during the conversation, Hargis and defendant walked out of the convenience store side by side and stood on the sidewalk outside the store.
When he spoke with defendant, Hargis, who is a drug recognition expert, observed that defendant’s eyes were bloodshot and watery, his speech was deliberate and slow, he repeated answers and questions, his pupils were dilated, and he had a “very relaxed demeanor.” Hargis asked defendant whether he was on any medications, and defendant replied that he was not. Then Hargis asked defendant when he had last smoked marijuana. Defendant said that it had been more than a year since he smoked marijuana and that he did not smoke marijuana.
Based on the indicators listed above, Hargis believed that defendant was under the influence of marijuana. At the hearing, Hargis explained that the indicators showed that defendant had smoked marijuana recently — within 24 to 48 hours — but that marijuana
In addition to believing that defendant was under the influence of marijuana, Hargis believed that defendant was trafficking marijuana. That belief was based on the indicators of marijuana use listed above, the fact that defendant had rented a car for a short trip to Reno, defendant’s implicit admission that he had used marijuana more than a year before, and Hargis’s training, which indicated that marijuana traffickers are likely to use marijuana during their trafficking trips.
Hargis asked defendant how much marijuana he had in the car, and defendant denied having marijuana. After defendant refused a request by Hargis to search the car for marijuana, Hargis told defendant that he was under investigation for DUII. He requested defendant’s driver’s license and rental agreement, and defendant consented to perform field sobriety tests. Rather than going forward with the field sobriety tests, Hargis sought to search defendant’s car for drugs. After several requests, defendant consented to a search. During the search, Hargis found approximately half a pound of marijuana in the trunk of defendant’s car. During a subsequent search of defendant, Hargis also found $3,923 in cash.
Hargis then checked defendant’s pulse, which was within the normal range, and gave defendant two nonstandard field sobriety tests, a counting test and an alphabet test. Defendant passed those tests, and Hargis did not perform any others. Hargis believed that defendant was not impaired, and he did not pursue the DUII investigation further.
Defendant was charged with unlawful delivery of marijuana, ORS 475.860(2), and unlawful possession of marijuana, ORS 475.864, and the state alleged a criminal forfeiture count, ORS 131.582, for the cash. Defendant moved to suppress the marijuana, the cash, and his statements, arguing that the stop and detention had violated his rights under Article I, section 9, in several particulars. He argued that he had been stopped at at least three points during his encounter with Hargis; that none of those stops was supported by probable cause of the traffic violation or reasonable suspicion of the crime that was the reason for the stop; and that, in two instances, Hargis had unlawfully extended the stop. Defendant contended that his consent to the search, the evidence discovered during the search, and his incriminating statements resulted from exploitation of each of those unlawful stops and extensions. He also argued that his consent to the search was involuntary.
The trial court denied the motion to suppress, concluding that, although Hargis talked to defendant about the traffic violation, that interaction was not a stop. The court also concluded that Hargis had reasonable suspicion that defendant was under the influence of marijuana and probable cause to believe that there was contraband in the car and that defendant consented to the search voluntarily. After a trial on stipulated facts, defendant was convicted of unlawful delivery of marijuana; the other two charges were dismissed. Defendant appeals, renewing his arguments that the trial court erred in denying his motion to suppress. We review the denial of a motion to suppress for errors of law. State v. Hall,
Article I, section 9, protects individuals against unreasonable searches and seizures. In order to be reasonable in the absence of a warrant, a search must fall within “one of the few specifically established and well-delineated exceptions to the warrant requirement.” State v. Davis,
A search for which the police gain valid consent is excepted from the warrant requirement. Id. In order to be valid, consent must be voluntary. Hall,
Defendant does not dispute that he consented to the search. However, he contends that his consent was derived from preceding violations of his rights under Article I, section 9. Thus, we must determine at what point during the encounter defendant was seized and whether that seizure was constitutionally permissible. We conclude that defendant was seized at the beginning of the encounter, when Hargis unambiguously told defendant that he had committed a traffic violation and that Hargis wanted to talk to him about it. Hargis lacked probable cause for that stop; hence, the stop was unlawful. We also conclude that defendant’s consent to the search derived from that unlawful stop. Accordingly, we reverse and remand.
The Oregon Supreme Court has explained that there are three types of encounters between police officers and individuals:
“(1) ‘mere conversation,’ that is, noncoercive encounters that are not ‘seizures’ and, thus, require no justification under Article I, section 9;
“(2) ‘stops,’ a type of seizure that involves a temporary restraint on a person’s liberty and that violates Article I, section 9, unless justified by, for example, necessities of a safety emergency or by reasonable suspicion that the person has been involved in criminal activity; and
“(3) ‘arrests,’ which are restraints on an individual’s liberty that are steps toward charging individuals with a crime and which, under Article I, section 9, must be justified by probable cause to believe that the arrested individual has, in fact, committed a crime.”
State v. Ashbaugh,
A person is seized under Article I, section 9, in either one of two situations:
“(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or
“(b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.”
Ashbaugh,
Whether an officer’s conduct amounts to a stop is a fact-specific question, resolution of which requires an examination of the totality of the circumstances. Id. at 399. If, considered in light of the totality of the circumstances, the officer’s conduct gives rise to “a reasonable perception that [the] officer is exercising his or her official authority to restrain,” then the officer’s conduct constitutes a stop. Id. at 401.
Questions, requests, or statements can have the effect of stopping a person. Rodgers/Kirkeby,
An officer stops a person when he or she communicates that he or she is conducting an investigation that “could result in the person’s citation or arrest at that time and place.” State v. Morfin-Estrada,
Morfin-Estrada is illustrative. In that case, an officer on patrol shortly after midnight observed the defendant and another man, Delgado, cross a street against the traffic light, a traffic violation.
We explained that a stop occurs “when an officer tells a person that the person has committed a violation or crime.” Id. at 165 (citing State v. Terhear/Goemmel,
“[The officer] told defendant that he had seen defendant and Delgado cross against the light. That is, he told them that he had just seen them break the law. As in Terhear/Goemmel and Allen, a reasonable person in defendant’s position would believe that he was the subject of an ongoing investigation and was not free to leave until [the officer] either gave him a citation or indicated that he was free to go.”
Morfin-Estrada,
Here, Hargis informed defendant that he had committed a traffic violation — failing to use his turn signal— and that Hargis “want [ed] to talk to him” about it. Defendant responded that he had used his turn signal. In response, Hargis reasserted that he had seen defendant break the law: he replied that defendant had not signaled for the required 100 feet before the intersection. See ORS 811.335(l)(b) (failing to “signal continuously during not less than the last 100 feet traveled by the vehicle before turning” is a traffic offense). Then Hargis began questioning defendant about his itinerary and drugs. He did not inform defendant that he had decided not to cite him for the traffic violation, and he did not tell defendant that he was free to go. As in Morfin-Estrada, the assertion that Hargis had seen defendant commit a traffic violation stopped defendant. A reasonable person in defendant’s position would believe that he was not free to leave until Hargis gave him a citation or indicated that he was free to go.
Anderson, a companion case to Backstrand, also supports our conclusion. There, pursuant to a warrant, the police were searching an apartment, which belonged to Wilson, for evidence of drug activities. Anderson,
The Supreme Court held that the defendant was not stopped by the approach, the explanation, or the request for identification. First it concluded that, under its precedent, no part of the encounter — the approach, the explanation, or the request for identification — constituted a stop per se. Id. at 452-53. Then it explained that the content of the officers’ requests, the manner in which they were made, and the overall context of the contact did not “elevate [] the encounter to the level of a seizure by conveying to defendant and the driver that the officers would not allow them to leave.” Id. at 453. The court noted that the content of the explanation and the request for identification was not coercive. It elaborated as follows:
“[The] explanation of the officers’ reasons for the contact and the officers’ requests for identification informed defendant and the driver that the officers were interested in why they had come to the apartment and what they knew about Wilson’s activities. That information objectively conveyed possible suspicion that the driver and defendant could be involved in criminal activity related to the apartment, but they equally conveyed that the officers were interested in whatever information the two might be able to provide.”
Id. The court concluded that, under those circumstances, “the officers did not communicate an exercise of * * * authority to restrain” through the verbal exchanges. Id.
Hargis’s statements here differ in two significant ways from the statements and request in Anderson. First, Hargis’s statements did not convey “possible suspicion” that defendant had committed a traffic violation. Instead, they unambiguously conveyed that defendant had committed a traffic violation, that Hargis had seen him do it, and that Hargis required defendant to stay while Hargis talked to him about it. That difference is significant in light of the Supreme Court’s concern in this context, which is to avoid “limiting contacts between police and citizens” when police officers are not restraining citizens’ liberty by behaving in ways that “exceed[] the bounds of ordinary social encounters between private citizens.” Backstrand,
The second significant difference between the statements in Anderson and the statements in this case is that the statements here did not “equally convey[]” any desire for information or any assistance. To the contrary, when defendant responded to Hargis’s first statement by saying that he had, in fact, used his turn signal, Hargis reasserted that defendant had committed a traffic violation by failing to signal for 100 feet before the intersection. His repetition of the accusation reinforced that he was not interested in any explanation or assistance from defendant. That conveyed that Hargis was exercising his authority to restrain by preventing defendant from going about his business until Hargis had completed the traffic stop. Accordingly, Hargis stopped defendant by informing defendant that he had observed him commit a traffic violation and wanted to talk to him about it.
It is the state’s burden to establish that a traffic stop is supported by probable cause. State v. Matthews,
The trial court did not accept Hargis’s testimony on that point. The trial court accepted defendant’s testimony that Hargis had told him that he wanted to talk to him about failing to signal. In light of the trial court’s finding, the state makes a secondary argument on appeal, contending that “even if the subject of a failure to signal came up during the conversation, it did not transform the encounter into a traffic stop.” The state does not argue that, if Hargis stopped defendant by stating that he wanted to talk to him about failing to signal, the stop was justified.
In order for the stop to be justified, it would have to be supported by subjective and objective probable cause. State v. Isley,
When determining whether a defendant’s consent to search is the product of exploitation of police misconduct, courts are to consider the totality of the circumstances, including whether the temporal proximity between the misconduct and the consent; the existence of any intervening or mitigating circumstances; the nature of the misconduct, including its purpose and flagrancy and whether the police took advantage of it; and the voluntariness of the consent. Unger,
The Supreme Court “observed in Hall and reaffirmed in Unger that exploitation of police misconduct may exist if the police seek the defendant’s consent solely as a result of knowledge of inculpatory evidence obtained from their unlawful conduct.” State v. Musser,
“gave way as the encounter developed, with the officer eventually focusing — as defendant well understood — on drug possession. The initial and developing purpose of the police misconduct in continuing to detain defendant while inquiring about various possible crimes shows the state taking advantage of that misconduct in a way that likely had an effect on defendant’s decision to consent.”
Id. at 159. Therefore, the evidence derived from the illegal stop — including the evidence obtained as a result of the consent search of the defendant’s purse — was tainted and, therefore, inadmissible. Id.
The facts of this case are similar to those in Musser. Here, after Hargis unlawfully stopped defendant, he questioned defendant about his trip and whether he had any drugs with him. During that questioning, he noticed signs that defendant had smoked marijuana recently. Based on those signs and defendant’s answers to Hargis’s questions, Hargis suspected that defendant had driven under the influence of intoxicants and that defendant might have marijuana in the car. He detained defendant to investigate those suspicions and, during that detention, defendant consented to the search of his car and Hargis discovered the disputed evidence. Thus, as in Musser, defendant’s consent to the search derived from the stop for the traffic infraction. Accordingly, the trial court erred in denying defendant’s motion to suppress.
Conviction on Count 1 reversed and remanded; otherwise affirmed.
Notes
Article I, section 9, provides, in part, “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure!.]”