Defendant was driving a car when the police stopped him for a traffic infraction. In the course of that stop, the officers came to believe that defendant was under the influence of a controlled substance. The officers questioned defendant and his passenger about controlled-substance use and requested that another officer bring a drug-detection dog to the scene to perform a sniff of the car. The dog alerted to the car; the officers then searched it and discovered heroin and related paraphernalia. In this appeal from the ensuing judgment of conviction for delivery of a controlled substance, defendant contends that the trial court erred in denying his pretrial motion to suppress that evidence. He argues that, under State v. Rodgers/Kirkeby,
We review the trial court’s denial of the motion to suppress for legal error. State v. Ehly,
Defendant was driving in front of a police cruiser when he made a turn without first signaling for at least 100 feet as required by ORS 811.335(l)(b). Salem Police Officer Gould was driving the police cruiser. Officer Horn was with him. They signaled for defendant to stop. Defendant turned into the parking lot of a grocery store; he drove very slowly for approximately 50 yards, passing several open parking spaces before turning into one and stopping. There was one
Gould asked defendant what the needle marks were from; defendant replied that he had incurred them from drug use about a year before, but that he had not recently been using. Gould did not believe that explanation. As he later explained at the hearing on the motion to suppress:
“The marks appeared to be fairly fresh — recent that — I mean, and you can tell the difference between a recent bruise on somebody’s arm as opposed to a scar, or a permanent mark that — of something that would have happened a year before. So it was plainly obvious to me, even though I’m not a doctor * * * of those that I’ve seen in the past, that it was very recent that those — those had been — been, you know — needles had been used on the arm.”
Gould also explained that he believed that defendant had controlled substances in the vehicle:
“Well, in my mind, without questioning him, there was either something going on with the use, or — or sales of controlled substances. Oftentimes, they go hand-in-hand. Based on my observations on the initial — the reaction of the initial vehicle to it going at a very delayed place through the parking lot, contacting the driver, my physical observations of him, noticing track marks, his admitted use of — of narcotics, whether they were — -you know, even though I saw the signs of recent use, but he said that he’d used a year ago, I believe that there was * * * at the very least, use of * * * controlled substances going on in — likely in the vehicle.”
Gould continued to question defendant; defendant provided Gould with what Gould considered “vague” answers. Gould asked why he had turned into the parking lot; defendant said that he had done so in order to pick up a friend. Gould asked why he was meeting the friend; defendant paused, looked around, and said, “To go to the bank.” Gould asked why he was going to the bank; after another pause, defendant replied that the friend owed him $40. Gould asked what the debt was for; defendant said that it was from a long time ago. Gould later testified that he asked those questions as part of a “drug investigation.”
While Gould was talking with defendant, Horn was talking to defendant’s passenger, Foster. Foster told Horn that they had arrived in the parking lot to meet a friend and take the friend to “a patio job.” After Horn informed Gould of that inconsistency with defendant’s story, Gould returned to his cruiser in order to run routine “wants checks,” to investigate the status of defendant’s driving privileges, and to fill out citations for the vehicular infractions that he had observed.
During the time that Gould was either talking to defendant or attending to the vehicular-infraction-related work in his cruiser, Horn requested that another officer, Miller, bring a drug-detection dog to the scene to perform a sniff of defendant’s car. Horn made that request without asking Gould. The reason that Horn requested the dog owed to “suspicions” that he had developed while talking with the passenger, Foster. Horn later summarized those suspicions, stating that he recognized Foster from some sort of previous drug investigation (he also learned that Foster had recently been arrested on a “heroin charge”); Foster’s eyes were red and bloodshot; he was talking slowly and repeating himself “over, and over, and over”; he kept putting his hand underneath his thigh, in what Horn perceived as an attempt to hide something from Horn; and he apparently did not want to put his feet on the coat that was resting on the floorboard beneath him. Horn believed that Foster was “probably” under the influence of a controlled substance. At the suppression hearing, the prosecutor asked Horn, “[D]o you have any experience with people showing signs such as those, and then having with them some kind of ingestion paraphernalia, or further possessing other controlled substances?” Without further elaboration, Horn answered, “Absolutely. Absolutely.”
Officer Miller arrived on the scene with the drug-detection dog at 1:30 p.m., 10 minutes after he had been called and 18 minutes from the stop’s inception. Gould testified that he did not remember whether he had finished writing out his citations by that point, but that he had not yet given them to defendant. Miller deployed his dog around the car, but believed that the presence of defendant and Foster in the car was affecting the dog’s ability to perform its task. Miller told Gould as much, and asked him if he would get the occupants out of the vehicle. Gould asked defendant and Foster to step out of the car. Once defendant was out of the car, Gould patted him down to search for any weapons that might pose a threat to the officers’ safety. On a second pass, the dog “alerted” to the car, which indicated to the officers that controlled substances were present. Gould testified that he then believed that he had probable cause to think that there was a controlled substance in the vehicle. He placed defendant in the back of his cruiser, stating that defendant was, at that point, under arrest for a “misdemeanor crime.” The officers then searched the car. One of them found an eyeglass case in the pocket of a coat that was resting on the passenger-side floor; there was drug paraphernalia inside the case. Another officer discovered a black pouch beneath the “driver’s side console”; the pouch contained heroin and related paraphernalia.
Before trial, defendant moved to suppress all evidence discovered as a result of what he contended was an unlawful extension of the traffic stop for the purpose of conducting a drug investigation. The trial court denied that motion, stating in a brief letter opinion that the officers “developed sufficient reasonable suspicion probable cause [sic] in the course of the routine traffic stop and investigation of defendant’s vehicle to search.” Defendant was subsequently convicted of one count of unlawful delivery of heroin, ORS 475.850, and one count of delivery of heroin within 1,000 feet of a school, ORS 475.882. This timely appeal followed.
Defendant assigns error to the denial of the motion to suppress. He concedes that the traffic stop was lawful at its inception, but contends that, under Article I, section 9, of the Oregon Constitution, the officers unlawfully extended the traffic stop when they started to conduct a drug investigation and that suppression of the evidence obtained as a result of that extension was required under Rodgers/Kirkeby. Defendant asserts that Gould’s questioning about matters unrelated to the traffic stop and the officers’ call for
Article I, section 9, establishes the right of the people “to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.” A “stop” is a type of seizure; it is “a temporary restraint of a person’s liberty for the purpose of criminal investigation” and must be justified by a “reasonable suspicion of criminal activity.” Rodgers /Kirkeby,
“Police authority to perform a traffic stop arises out of the facts that created probable cause to believe that there has been unlawful, noncriminal activity, viz., a traffic infraction. Police authority to detain a motorist dissipates when the investigation reasonably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should be completed. Other or further conduct by the police, beyond that reasonably related to the traffic violation, must he justified on some basis other than the traffic violation.”
Rodgers/Kirkeby,
We begin with defendant’s contention that certain questions that Gould asked defendant were unrelated to the valid purposes of the stop. See State v. Farrar,
Specifically, defendant identifies Gould’s questions about defendant’s needle marks, about where defendant was going, and about whom defendant was going to meet as those that prolonged the stop. We understand defendant to contend that those questions both prolonged the stop and were not reasonably related to — what he concedes were— the legitimate justifications for the stop, viz., addressing the vehicular infractions.
The state quotes State v. Dennis,
“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. To be objectively reasonable, the officer’s suspicion must be based on specific and articulable facts. A police officer’s training and experience are relevant considerations that bear on the reasonablefactual inferences that an officer may draw.”
State v. Maciel,
These are the facts known to Gould at the time he began questioning defendant: defendant had made a sudden left turn and then drove very slowly through a parking lot, passing several open parking spaces after Gould signaled him to stop; he had “very recent” needle marks on his arm that were inconsistent with his explanation that he had used drugs approximately one year earlier; defendant was acting very nervous and his hands were shaking; he was speaking very slowly in a monotone voice; there was a “noticeable delay” in his answers to Gould’s questions; and his pupils were overly constricted, given the level of daylight. Based on those facts, Gould, a trained member of the Salem Police Department Drug Activity Response Team, testified that he believed that defendant was “likely under the influence of, for example, a narcotic analgesic.” Defendant points to State v. Frias,
That leaves defendant’s contention that the officers unlawfully extended the stop by sending for a drug-detection dog and allowing the dog to sniff the car. On that point, defendant contends that, even if Gould had a reasonable suspicion that he was under the influence of narcotics, Gould’s belief that there were narcotics in the vehicle was not reasonable. That is, argues defendant, Gould’s belief that defendant was presently under the influence of an intoxicant could not justify the extension of the stop for the purpose of deploying a drug-detection dog.
The state attempts to forestall the need to examine the reasonableness of the officers’ suspicions about the presence of drugs in the car by arguing that the call for and deployment of the dog did not, in any event, prolong the stop, and thus required no additional justification. We agree with the state that the act of calling for the drug dog did not prolong the stop. In accordance with our standard of review,
The question then becomes whether the deployment of the drug-detection dog was supported by a reasonable suspicion that there were drugs present in the vehicle. As our framing of that question implies, we agree with defendant that, unlike Gould’s questioning of defendant, the act of deploying the dog cannot be supported as “reasonably related” to Gould’s suspicion of DUII. The gravamen of that crime, of course, is driving under the influence of an intoxicant. However, “an officer’s reasonable suspicion about certain crimes does not justify the officer’s extension of a stop to conduct an investigation of another crime for which the officer does not also have reasonable suspicion.” State v. Kentopp,
Having staked its arguments largely on the premise that the stop was not prolonged, the state does not exert any significant effort to argue that the deployment of the drug dog was supported by a reasonable suspicion that defendant presently possessed a controlled substance. Instead, it merely offers the conclusory statement that any extension of the stop was “justified by reasonable suspicion that drugs or drug paraphernalia would be found in the vehicle” under the circumstances.
Thus, something more is required than an officer’s reasonable belief that a suspect is under the influence of a controlled substance to render a suspicion of present possession objectively reasonable.
“[STATE]: So based on your training and experience, did you — do you have an experience in the area of if someone has used recently, whether or not they would possibly have any kind of controlled substances on their person, or within their vehicle?
“[GOULD]: Yes.
“[STATE]: And what can you [tell] the Court about that?
“[GOULD]: It’s — it’s my experience, even if somebody doesn’t have the actual substance with them, they’ll oftentimes carry a — I’d say a drug kit. They’ll carry that, say, in an eyeglass container with their syringes that they can use, a lighting source, a spoon, for, in this case, heroin, that they’ll — they’ll use a spoon. So different — at least paraphernalia, and then also likely substance that they keep with them. I know that specifically heroin users oftentimes, if they have a strong addiction, will have to use regularly, so in — in order not to get sick, so in that case, they oftentimes keep those things with them closely.”
Defense counsel asked Horn about the basis for his belief that there were drugs in the car:
“[DEFENSE COUNSEL]: So *** you indicated that you had reasonable suspicion that there w[ere] narcotics in the vehicle?
“[HORN]: Correct.
“[DEFENSE COUNSEL]: And that was based on your knowledge of the driverfrom the — what turned out to be the prior investigation?
“[HORN]: The passenger.
“[DEFENSE COUNSEL]: I’m sorry. The passenger.
“[HORN]: Correct.
“[DEFENSE COUNSEL]: Your observations about— observations of the physical appearance of the passenger, and the shuffling [of] the feet, and putting his hand under his thigh?
“[HORN]: Correct.
“ [DEFENSE COUNSEL]: Anything else?
“ [HORN]: Not that I can think of.”
In concluding that there was not an objectively reasonable suspicion that there were drugs in the car, we begin by noting that Gould, the only officer to speak with defendant, did not articulate any facts — aside from defendant’s intoxication — in explaining why he believed that there were drugs in the car. That is, despite that his “training and experience” taught him that heroin users often carry “drug kits” about them — i.e., the very inference that, standing alone, we have repeatedly declared insufficient — Gould never identified anything that could serve as the “something more” that our cases demand.
That leaves Horn’s knowledge of Foster’s prior involvement in drug activity and observations about Foster’s movements, the “shuffling of his feet” around the coat, and his “putting his hand under his thigh” repeatedly. As an initial matter, Horn’s testimony about the coat was so vague and equivocal that it is impossible to ascribe it any significance in our analysis.
Even more problematic is that that testimony reveals that Horn’s suspicions were entirely centered on Foster. However, “[t]he officer’s suspicion must be ‘particularized to the individual based on the individual’s own conduct.’ ” Farrar,
Consider the Supreme Court’s recent decision in State v. Holdorf,
The court addressed “whether the officer’s observation that [the] defendant appeared to be under the influence of methamphetamine, based on the officer’s training and experience, was sufficient to establish ‘reasonable suspicion’ that [the] defendant had committed the crime of possession of methamphetamine when considered under the totality of the circumstances.” Id. at 814. The court concluded that the officer’s observation that the defendant was “tweaking,” when coupled with the knowledge that the driver was a “known felon with an outstanding warrant who was under investigation as a suspect in a local methamphetamine distribution ring,” was sufficient to “g[i]ve rise to a reasonable inference that the defendant committed the crime of possession of methamphetamine.” Id. at 829.
Holdorf only addressed whether there was reasonable suspicion to conduct a stop in the first place, i.e., whether it was objectively reasonable to conclude that the defendant “has committed a crime or is about to commit a crime.”
Our remaining task is to determine whether that conclusion requires that the evidence should have been suppressed. See State v. Davis,
In what is perhaps a misstatement of the applicable burden, the state argues that “there is no basis for concluding that the evidence defendant sought to suppress would not have been discovered but for his extended detention.” For that proposition, the state argues that defendant would not have been allowed to drive his car away for either of two reasons: (1) he was already under arrest for the crime of failing to present a valid license at the time of the dog sniff, and (2) defendant was not, in any event, licensed to drive. Thus, urges the state, the car would have remained parked where it was after the stop of defendant was over, Miller and his dog would have arrived, and the evidence would have, inevitably, been discovered.
The argument that defendant was already under arrest for failing to present a valid license is not supported by the record. Gould testified that he arrested defendant for a “misdemeanor crime” immediately after the dog alerted to the car. Although Gould never stated the precise basis for that arrest, it defies all reason to suggest that Gould spent more than 18 minutes, in part, engaged in preparing a citation to issue defendant for his failure to carry a license and then, immediately after a drug dog sniffed his car, in the middle of a drug investigation involving three officers, and in apparent contravention of his department’s policy, suddenly decided to arrest him for the license offense.
That leaves the state’s second hypothetical that, even if the stop had not ended in his arrest, the car would have remained parked lawfully where it was because defendant was not privileged to drive. The difficulty with that argument is that it assumes that defendant would have— after he was no longer stopped and thus free to carry on his way — left his possessions in the car. There is neither a basis in the record for that assumption, nor is there an argument from the state that the officers would have been entitled to seize or search either the coat or the black pouch in the event that defendant had attempted to leave with them before the dog alerted to the car.
In sum, based on defendant’s concession that the traffic stop was lawful at its inception, we conclude that the trial court did not err in denying defendant’s motion with respect to the evidence that was obtained from the beginning of the stop to the point at which the officers deployed the drug dog. However, because the deployment of the drug dog prolonged the stop and was not supported by an objectively reasonable suspicion that drugs would be found in the vehicle, we conclude that the trial court erred in denying defendant’s motion to suppress that evidence obtained after the drug dog was deployed. Consequently, we reverse and remand.
Reversed and remanded.
Notes
Failure to carry or present a license is a misdemeanor criminal offense. ORS 807.570. Driving with a suspended or revoked license may be either a felony or misdemeanor offense. ORS 811.182. Failure to signal is a traffic violation. ORS 811.335(l)(b). For simplicity’s sake, we will refer to those offenses and that violation collectively as the “vehicular infractions.”
At some point, apparently while Gould was working on processing the citations, Horn asked for consent to search the vehicle; both defendant and Foster declined to give that consent.
Gould stated that the reason he inquired about where defendant was going and whom he was meeting was to investigate drug crimes.
In Rodgers/Kirkeby, the Supreme Court noted that “verbal inquiries are not searches and seizures. *** However, police conduct that involves physical restraint or a show of authority that restricts an individual’s freedom of movement typically does implicate Article I, section 9.”
Defendant’s only contention regarding Gould’s questioning is that Gould did not have a reasonable suspicion to think that defendant had engaged in criminal activity; there is no argument from defendant that the questions asked by Gould were not sufficiently tailored to the scope of his suspicions.
The state argues that, because defendant’s license was suspended, he would have been asked to step out of the car in any event, and that the act of removing him from the car did not add to the length of the stop. We fail to see how that is the case. Certainly, defendant would not be permitted to drive away from the scene, but we do not understand why that leads to the conclusion that defendant would have been removed from the car, patted down, and detained for the time that the dog took to sniff his car twice. The state also argues that there were, at the time of the dog sniff, lots of “loose ends that had to be tied up” by the officers that had to do with the vehicular infractions before the stop could end. To that, we can only say that, in the absence of reasonable suspicion to support the deployment of the drug dog, the officers should have been tying them up.
The state does not separately argue that the dog sniff was justified as part of an investigation that was reasonably related to the crime of DUII. See generally Watson,
That is, of course, a distinct question from whether present intoxication can support an objectively reasonable suspicion that a suspect previously possessed drugs, i.e., immediately before consuming them. The reasonableness of that inference, however, is not at issue here: a drug dog detects the presence of drugs, not prior drug consumption. See State v. Kolb,
The state does not specifically suggest that Gould’s belief that there was a “drug kit” in the ear — that is, syringes, a spoon, and a “lighting source”— supported the extension of the stop for the purposes of deploying a drug dog. Even if we did discern such an argument, we would, on this record, reject it for the reasons stated in Kolb,
Horn testified:
“Well, there was a coat — -down there was a coat on the floorboard, and it was like he was — I mean, normal people when they sit there, and there’s stuff on the floorboard, they just kind of — their feet are already in the position that they’re — they’re not on something. They’re already — -they’re already there because they’ve been in the car for sometime. Well, he kept moving this coat around with his foot with — with his feet, and kept — like he was — his feet were overly concerned with — or he was overly concerned of where he was going to be placing his feet on this coat. Like if there was something under the coat like — he didn’t want to step on and break, or — or there was something inside the coat that he didn’t want to break, or even maybe it was — or if I didn’t — if I wasn’t able to see — I mean, I saw the coat, and it looked just like — kind of like a — just a dirty coat, but it’s almost like it would have been a clean, brand new coat that he didn’t want to put his feet on it.”
Gould testified that Salem police policy calls for citing and releasing a driver who fails to carry or present a license, unless the officer cannot verify the identification of the driver, in which case the driver is detained until his or her identity can he established. Gould testified that he had already verified defendant’s identity — presumably with the computer in his cruiser — by the time that Miller and his dog arrived.
In fact, in contending that the dog sniff did not prolong the stop, the state’s brief argues that “ [d] efendant still had to exit the car and retrieve his belongings so that the car could be secured” as a prerequisite to concluding the stop.