In this criminal action, the state appeals the trial court’s pretrial order suppressing drug evidence obtained during a consensual search of defendant’s person during a traffic stop. ORS 138.060(1)(c). The issue presented to us is whether the police officer’s request for consent to search defendant constituted an unlawful extension of the traffic stop in violation of Article I, section 9, of the Oregon Constitution.
1
Defendant cross-appeals the court’s pretrial ruling that denied his motion to exclude evidence of a field test of drugs that were discovered as a result of the search. We affirm on appeal,
State v. Rodgers,
We review the lawfulness of searches and seizures for legal error and are bound by the trial court’s findings of historical fact to the extent that those findings are supported by evidence in the record.
State v. Ehly,
The trial court found the facts to be those to which Deputy Sheriff Steele testified at the suppression hearing. On the afternoon of February 6, 2003, Steele saw defendant driving in downtown Willamina. He knew defendant by sight and also knew that defendant’s driver license had been suspended. Steele contacted his dispatcher who confirmed that defendant had a suspended license. The dispatcher also reported that defendant did not have any outstanding arrest warrants. Based on the driving while suspended violation, ORS 811.175, Steele activated the overhead lights on his patrol car and stopped defendant. The overhead lights remained on throughout the duration of the encounter. Both defendant and Steele got out of their cars and walked toward one another. Steele testified that he was concerned for his safety because defendant had left his vehicle, which raises the risk of danger to an officer.
When Steele told defendant that he had stopped him for driving while suspended, defendant seemed surprised *180 and handed him an Oregon driver license. Defendant was cooperative and “businesslike”; he did not act in a threatening or aggressive manner. Steele also indicated that, during his extensive history of prior contacts with defendant, defendant had never acted in a violent or threatening manner and had never pulled a weapon. At that point in the encounter, Steele had defendant’s name, date of birth, and driver license number. He acknowledged that that was all the information that would be contained on a traffic citation; however, he testified that he “probably” did not have everything he needed to issue the citation, because he had not requested and received from defendant the vehicle registration and proof of insurance.
Steele explained to defendant that “the license that he was handing me was no good” and asked defendant if he had any weapons on him or in the car. Steele explained why he asked about the presence of weapons:
“Once again he was outside the car and it was pertinent. For officer safety I wanted to know if he had any weapons on him and there was a passenger still in the vehicle and so I was asking if there was any weapons in the vehicle also. Because really now I had two people and they were in different locations and I needed to kind of know what was going on and who had what if anything.”
Defendant stated that he did not have any weapons. Steele then asked defendant for “consent to a pat search for weapons.” The trial court found that approximately two minutes had elapsed between the initial stop and that request. Steele had not yet written defendant a citation. At some point during the encounter — although it is unclear precisely when— two additional officers arrived on the scene. Those officers were “watching the passenger” for Steele as he talked with defendant.
During the patdown search, Steele felt miscellaneous items in defendant’s pockets. After the patdown, Steele “felt fairly confident that [defendant] didn’t have any firearms on his person.” He nonetheless asked defendant for consent to look at each of the items that he had felt, because he did not know what they were and “wanted to investigate further.” For each item, consent was granted. Steele testified *181 that defendant was not free to leave during the encounter; he also did not tell defendant that he was free not to cooperate. One of the items that Steele had felt was a small metal cylindrical container. Steele asked defendant if he could look inside it. Defendant first responded, “I just found that.” Steele again asked for consent to look inside, and defendant agreed. Steele unscrewed the cap and saw two zip lock baggies containing a residual amount of a clear crystalline substance that appeared to be methamphetamine. At that point, Steele concluded that he had probable cause to believe that defendant had committed the crime of possession of a controlled substance, and he arrested defendant for that crime. At that point, approximately four to five minutes had elapsed from the beginning of the stop.
Defendant was thereafter charged with possession of a controlled substance, former ORS 475.992 (2003). Before trial, defendant moved to suppress the evidence obtained during the search. He argued that, although questions concerning the presence of weapons may be permitted under ORS 810.410(3)(d), 2 unless the officer has “a reasonable suspicion of an immediate threat of serious injury” that questioning — including asking for permission to search for weapons — constitutes an unlawful seizure in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. (Emphasis in original.) According to defendant, because there was no such threat in this case and because his consent was obtained as a *182 result of the resulting unlawful seizure, the evidence must be suppressed. The state countered that the officer’s request for consent to search defendant was not unlawful because the officer had legitimate officer safety concerns and because “it [was] a consent search, which the officer [was] authorized [under ORS 810.410(3)(e)] to conduct at that point.” The state also argued that defendant was not unreasonably detained beyond “what was necessary” because the search occurred within a few minutes of the stop and during the course of the investigation of the traffic violation.
The trial court granted defendant’s motion to suppress. The court first concluded that none of the officer’s conduct violated ORS 810.410. However, relying on
State v. Amaya,
The state does not argue on appeal that Steele had a “reasonable suspicion, based upon specific and articulable facts,” that defendant posed “an immediate threat of serious physical injury to [him].”
State v. Bates,
We turn to defendant’s arguments on appeal. First, we note that defendant does not argue on appeal, as he did below, that Steele’s initial question about the presence of weapons constituted a seizure under Article I, section 9.
See State v. Crampton,
With the parties’ arguments thus framed, the dis-positive question is whether, even assuming that Steele’s actions were permissible under ORS 810.410(3), his requests for permission to search defendant nonetheless amounted to an unlawful seizure under Article I, section 9. We agree with the trial court that they did.
First, as the Supreme Court explained in
Amaya,
ORS 810.410(3)(d) authorizes an officer conducting a lawful traffic stop to make inquiries, including inquiries about the presence of weapons, even if the officer does not reasonably suspect criminal activity or the threat of immediate harm.
After this case was briefed and argued, we decided
Rodgers,
Rodgers
presented the second factual scenario. In that case, the defendant was lawfully stopped for the traffic infraction of driving a car with a burned-out license plate light. The officer obtained the defendant’s driver license and vehicle registration and ran a records check, which came back clear. Instead of issuing the defendant a citation, which the officer could have done at that point, he began questioning the defendant about items in the defendant’s car, which the officer believed indicated that the defendant was involved in the manufacturing of methamphetamine. After talking for a few minutes, the officer asked the defendant for consent to search the car. The results of that search led to the defendant’s conviction for unlawful manufacture of methamphetamine.
We rejected the state’s argument that the reasonableness of the duration of the traffic stop should be measured by the time that it would have taken the officer to process the citation had he or she not engaged in the additional, unrelated questioning.
Rodgers,
“although an officer is free to question a motorist about matters unrelated to the traffic infraction during an unavoidable lull in the investigation, such as while awaiting the results of a records check, that officer is not similarly free to question the motorist about unrelated matters as an alternative to going forward with the next step in processing the infraction, such as the writing or issuing of a citation. When an officer has all of the information necessary to issue a citation but instead delays in processing it or in telling the motorist that he or she is free to go, the stop is no longer lawful unless the officer has reasonable suspicion of further criminal activity.”
Id.
at 372 (discussing
State v. Raney,
This case is controlled by
Rodgers.
At the point at which Steele asked defendant for permission to search him, Steele testified that, although he had defendant’s name, date of birth, and driver license number, he “probably” did not have everything he needed to issue defendant a citation because he did not have defendant’s proof of insurance and vehicle registration information. However, even if that information was essential for the issuance of a traffic citation, there is nothing in the record to indicate that Steele asked defendant for those items or was waiting for defendant to retrieve them, nor that he was engaged in any other steps related to the investigation of the traffic offense. Thus, the request for consent to search defendant did not occur “during an unavoidable lull in the investigation.”
Rodgers,
Instead of asking defendant for that information — a logical next step in processing the infraction — Steele proceeded down an unrelated path, that is, he asked defendant for permission to pat him down. 6 That, in turn, led Steele to ask defendant for consent to examine the items that Steele felt during the patdown, and, ultimately, for consent to look inside one of those items. Those actions, which were unrelated to the basis for the traffic stop, unlawfully extended the duration of the traffic stop in violation of Article I, section 9.
Contrary to the state’s assertion, our decision in
Raney,
Under
State v. Hall,
In his cross-appeal, defendant challenges the trial court’s denial of his motion to exclude evidence of the officer’s field testing of the drugs discovered during the search. Our conclusion on appeal that the drug evidence was properly suppressed obviates any need for us to reach defendant’s cross-appeal. Accordingly, we dismiss the cross-appeal as moot.
Affirmed on appeal; cross-appeal dismissed as moot.
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!.]”
ORS 810.410 provides, in part:
“(3) A police officer:
“(a) Shall not arrest a person for a traffic violation.
“(b) May stop and detain a person for a traffic violation for the purposes of investigation reasonably related to the traffic violation, identification and issuance of citation.
“(c) May make an inquiry into circumstances arising during the course of a detention and investigation under paragraph (b) of this subsection that give rise to a reasonable suspicion of criminal activity.
“(d) May make an inquiry to ensure the safety of the officer, the person stopped or other persons present, including an inquiry regarding the presence of weapons.
“(e) May request consent to search in relation to the circumstances referred to in paragraph (c) of this subsection or to search for items of evidence otherwise subject to search or seizure under ORS 133.535.”
As the state correctly points out, in this case the time between the initial stop and the request for consent to search defendant was only two minutes.
As he did in the trial court, defendant also relies on the Fourth Amendment. Because we resolve the case on state law grounds, we need not reach defendant’s federal constitutional claim.
See State v. Kennedy,
In
Amaya,
the court did not decide whether the officer’s questioning of defendant constituted a seizure, because it determined that it was, in any event, permissible under Article I, section 9, because the officer had a reasonable suspicion that defendant posed an immediate threat of serious injury to him.
Throughout the encounter with defendant, the overhead lights on Steele’s patrol car remained activated, and Steele testified that defendant was not free to leave.