Defendant appeals a judgment of conviction for unlawful delivery of methamphetamine, ORS 475.890(2), and unlawful possession of methamphetamine, ORS 475.894. He assigns error to the trial court’s denial of his motion to suppress evidence discovered after he consented, during a stop, to a search of a vehicle in which he was a passenger. Specifically, defendant argues that his consent to search was the product of an unlawful seizure under Article I, section 9, of the Oregon Constitution. The state responds that reasonable suspicion justified the stop and, alternatively, that defendant’s consent was sufficiently attenuated from the unlawful police conduct to render the evidence admissible. We conclude that the stop was not supported by reasonable suspicion and was therefore unlawful. However, we also conclude that defendant’s consent was sufficiently attenuated from the unlawful police conduct such that the evidence was admissible. Accordingly, we affirm.
We state the facts consistently with the trial court’s express and implied findings where there is constitutionally sufficient evidence in the record to support those findings. State v. Ehly,
Wells asked the driver, Fonseca, for his driver’s license, vehicle registration, and proof of insurance. Although Fonseca did not have any form of identification, defendant provided Wells with Fonseca’s name and date of birth.
While waiting on the results of the warrant check, Wells requested assistance from another state trooper, Bowersox, who arrived at the scene within 10 minutes. After Bowersox arrived, Wells approached the vehicle and asked defendant if it contained any drugs or weapons. Defendant replied, “No.” Wells then provided defendant and Fonseca with a consent to search form, printed in both Spanish and English, and requested consent to search the vehicle. The consent to search form explained that defendant had “the right to refuse consent to a search” and that, if he refused, his “refusal [could not] be used against [him] for any purpose.” Defendant read and signed the form consenting to the search. Defendant spoke to Fonseca in Spanish about the form, and Fonseca also signed it. The form was then returned to Wells. Wells searched the vehicle and discovered methamphetamine hidden in a speaker. After placing defendant in handcuffs and providing him with Miranda warnings (written in Spanish), Wells asked defendant what was in the speaker. Defendant replied in broken English, referencing “‘crystal.’” Defendant was later charged with unlawful delivery of methamphetamine and unlawful possession of methamphetamine.
Defendant filed a motion to suppress the evidence discovered as a result of the search. Defendant argued that Wells unlawfully stopped him without reasonable suspicion of criminal activity. Defendant further argued that his consent to search the vehicle was the product of that unlawful stop and, accordingly, that the evidence discovered as a result of the search was inadmissible. The state, for its part, conceded that defendant was stopped “at the point where [Wells went] back to run the wants and warrants check,” but argued that the stop was supported by reasonable suspicion of drug trafficking. The state additionally made two alternative arguments: first, that defendant’s consent was only tenuously related to the unlawful police conduct and, second, that Fonseca’s consent provided a lawful independent source for the admission of the evidence.
The trial court concluded that Wells had reasonable suspicion of drug trafficking when he took defendant’s identification card. Specifically, the court found several “indicators” that, considered in the “totality of the circumstances,” provided Wells with reasonable suspicion. Those indicators were as follows: (1) the vehicle was traveling northbound on Interstate 5 with California license plates; (2) the presence of two occupants in
Following a bench trial, defendant was found guilty of unlawful delivery of methamphetamine and unlawful possession of methamphetamine.
On appeal, defendant renews his argument that the stop was not supported by reasonable suspicion and that his consent was the product of that unlawful stop. The state first argues, as an alternative basis for affirmance, that defendant was not personally stopped because “defendant spontaneously handed [Wells] an Oregon identification card” and the “record does not indicate that the trooper ran defendant’s name in his records check.” As noted, the state conceded below that defendant was stopped when Wells returned to his patrol car after taking and retaining defendant’s identification card. Had the state made — instead of conceded — its argument below, defendant could have developed a different record in response. Furthermore, the trial court implicitly concluded that Wells stopped defendant when it ruled that he had reasonable suspicion to do so. Under those circumstances, we will not consider the merits of the state’s argument for the first time on appeal. See Outdoor Media Dimensions Inc. v. State of Oregon,
Alternatively, the state responds that the stop was supported by reasonable suspicion and that, even if it was not, defendant’s consent was sufficiently attenuated from the unlawful police conduct to render the evidence admissible.
“A stop of a person by a police officer is supported by reasonable suspicion when the officer subjectively believes that the person has committed or is about to commit a crime and that belief is objectively reasonable in light of the totality of the circumstances existing at the time of the stop.”7
State v. Maciel,
We condude that those facts, considered in their totality, do not give rise to reasonable suspicion that defendant was engaged in drug-related criminal activity. As an initial matter, the fact that the vehicle contained two occupants and two cell phones has no bearing on reasonable suspicion. Wells testified at the suppression hearing that those facts were significant to him because, in his “limited experience,” drug traffickers will generally use two people to transport drugs in vehicles and “there will be multiple cell phones in a vehicle.” Wells admitted, however, that he had “seen seizures that had as many as seven people in a vehicle and as little as one person in a vehicle” and that observing multiple people with personal cell phones is common. Put frankly, the presence of two persons and two cell phones in a vehicle is wholly unremarkable.
Similarly, we have held that “there is nothing inherently suspicious about * * * being nervous when pulled over by a police officer.” State v. Berry,
The same is true of the fact that the vehicle was registered to a third party. As to that indicator, Wells testified that “illegal narcotics are generally transported in a third-party vehicle that does not belong to any of the occupants inside the vehicle.” We have held, however, that a third-party registration, combined with similar testimony from a police officer, carries “little weight” in establishing reasonable suspicion. Maciel,
We have held that the absence of luggage in a vehicle is of no consequence where the luggage may have been stored out of plain view. Maciel,
We are left to consider the fact that, while standing near the window of the vehicle, Wells smelled a strong odor of air freshener that had no visible source. Wells testified that “vehicles that transport illegal narcotics attempt many means to mask any odors that could be potentially detected by police canines” and that, “when you have a stronger odor, it’s * * * attempting to mask something.” That fact, however, is not sufficient, either alone or in combination with the other indicators that Wells identified, to establish reasonable suspicion of drug activity. See Juarez-Godinez,
Of course, we must still consider those facts together. One case is particularly illustrative and, in fact, concerns many of the same “indicators” present here. In JuarezGodinez, we considered whether an officer had reasonable suspicion of drug-related criminal activity. The defendant and two passengers were traveling on to Tacoma, Washington, when they were pulled over for a traffic violation.
“From my training and experience, I noticed several characteristics displayed by the occupants of the vehicle that I know are often the same characteristics displayed by known narcotics traffickers. I noticed a heavy odor of air freshener in the vehicle. I did not see any luggage in the vehicle. I noticed that all occupants were wearing newly purchased clothing. The driver was wearing a gold necklace, a gold ring, and had salon-styled hair. A third-party [vehicle] registration is also very common with narcotics traffickers. I also know through my training and experience that Tacoma, Washington, * * * is a frequent destination of narcotics traffickers.”
Id. at 606 (internal quotation marks omitted; brackets in original). Additionally, the officer testified that the defendant became “visibly nervous” when asked for consent to search the vehicle. Id. at 607 (internal quotation marks omitted). We held that “none of those observations, either individually or collectively, justify a reasonable suspicion that the vehicle contained controlled substances.” Id.
Nevertheless, we must still consider whether Article I, section 9, requires that the evidence discovered as a result of defendant’s consent to search the vehicle be suppressed. In State v. Hall,
“[A]fter a defendant establishes the existence of a minimal factual nexus — that is, at minimum, the existence of a ‘but for’ relationship — -between the evidence sought to be suppressed and prior unlawful police conduct, the state nevertheless may establish that the disputed evidence is admissible under Article I, section 9, by proving that the evidence did not derive from the preceding illegality. To make that showing, the state must prove that either (1) the police inevitably wouldhaveobtainedthedisputed evidence throughlawful procedures even without the violation of the defendant’s rights under Article I, section 9; (2) the police obtained the disputed evidence independently of the violation of the defendant’s rights under Article I, section 9; or (3) the preceding violation of the defendant’s rights under Article I, section 9, has such a tenuous factual link to the disputed evidence that that unlawful police conduct cannot be viewed properly as the source of that evidence.”
(Citations omitted.)
Here, the state does not argue that defendant failed to establish a minimal factual nexus between the unlawful stop and the evidence that was discovered. Defendant consented to the search during the course of the unlawful stop. That is sufficient to establish the minimal factual nexus required under Hall. See State v. Kolb,
Rather, as noted, the state argues that defendant’s consent was sufficiently attenuated from the unlawful stop to render the evidence admissible. Where a defendant has shown a minimal factual nexus between the unlawful police conduct and the defendant’s consent, the burden shifts to the state to show that “the defendant’s consent was independent of, or only tenuously related to, the unlawful police conduct.”Hall,
“A causal connection requiring suppression may exist because the police sought the defendant’s consent solely as the result of knowledge of inculpatory evidence obtained from unlawful police conduct. A causal connection requiring suppression also may exist because the unlawful police conduct, even if not overcoming the defendant’s free will, significantly affected the defendant’s decision to consent. Although determining the existence of such a causal connection requires examination of the specific facts at issue in a particular case, we view several considerations to be relevant to that determination, including (1) the temporal proximity between the unlawful police conduct and the defendant’s consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances— such as, for example, a police officer informing the defendant of theright to refuse consent — that mitigated the effect of the unlawful police conduct.”
Id. at 35 (footnote omitted).
We conclude that the state proved that defendant’s consent was sufficiently attenuated from the unlawful police conduct to render the evidence admissible. As noted, the unlawful stop was ongoing at the time that Wells asked defendant for consent to search the vehicle. Accordingly, the temporal proximity factor identified in Hall clearly weighs in defendant’s favor. Apart from that, however, there is no evidence that Wells took advantage of the unlawful stop in order to gain defendant’s consent. There is no evidence that Wells gained any advantage from the unlawful stop— in the form of new information or otherwise — that caused him to seek defendant’s consent to search the vehicle. Even if the unlawful stop began at the point at which Wells accepted defendant’s identification card, the only arguably relevant information that Wells gained during that stop was that defendant had left Sacramento at 2:00 a.m. and was traveling to Portland to visit his uncle. Wells testified that he felt that he had reasonable suspicion of drug trafficking before he learned that information, and there is no evidence that Wells requested defendant’s consent to search the vehicle as a result of it.
More importantly, however, another factor identified in Hall — the presence of mitigating circumstances — strongly weighs in the state’s favor. Specifically, Wells provided defendant with a consent to search form, printed in both Spanish and English; that document explicitly informed defendant that he had “the right to refuse consent to a search” and that, if he refused, the “refusal [could not] be used against [him] for any purpose.” Defendant read and signed the form. At no time did Wells suggest to defendant that a refusal to consent would imply that defendant was hiding contraband. See Bertsch,
Affirmed.
Notes
Fonseca spoke only Spanish and was unable to communicate directly with Wells, who spoke English. Although defendant’s primary language is Spanish, he spoke English to Wells and apparently translated for Wells and Fonseca.
Wells testified at the suppression hearing that he could not remember whether he returned defendant’s identification card at any point during the encounter.
Wells testified at the suppression hearing that he could not remember whether he had asked defendant where he and Fonseca were going before or after taking defendant’s identification card. Wells knew, however, that he had asked that question before he returned to his patrol car to conduct the warrant check.
As noted, the court concluded that those indicators, considered together, gave rise to reasonable suspicion. However, the court then stated that
“[t]here was also the mention of the necklace hanging from the mirror, rear view mirror, that Trooper Wells stated he recognized as that of the Saint Jesus Malverde, which he stated in his training and experience * * * is often associated with narcotics trafficking. And again that alone would not be sufficient to raise reasonable suspicion.”
It is unclear whether the trial court relied on the presence of the Jesus Malverde medallion in concluding that the stop was supported by reasonable suspicion. In any event, as in previous cases, we decline to consider the medallion in determining whether Wells had reasonable suspicion of drug trafficking. See State v. Maciel,
Additionally, the state argues that any illegality “violated only the driver’s rights and not the passenger’s.” That argument, however, is predicated on its assumption that defendant was not personally stopped. For the reasons explained above, we reject that argument without further discussion. See also State v. Knapp,
The state also argues, as it did below, that “police authority to search this vehicle also came from an independent source” — Fonseca’s consent — and that, accordingly, the evidence is admissible. We need not address the merits of that argument given our disposition of the case.
The subjective component of reasonable suspicion is not at issue in this case, and the only question on appeal is whether Wells’s belief was objectively reasonable under the circumstances.
As noted, the state conceded below that defendant was stopped when Wells returned to his patrol car to run a warrant check on Fonseca; the trial court suggested, however, that defendant was stopped earlier, at the point when he gave Wells his identification card. Because we conclude that Wells lacked reasonable suspicion that defendant was engaged in drug-related criminal activity at the time that he returned to his patrol car, we need not determine the exact point at which defendant was stopped for purposes of Article I, section 9.
Moreover, the new information — that defendant was traveling to Portland to visit a relative — was not the type of information that would suggest a need to search the vehicle, even when considered in conjunction with the circumstances that Wells had observed prior to the unlawful stop.
Defendant notes that, in State v. Shirk,