Lead Opinion
Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, assigning error to the trial court’s denial of her motion to suppress evidence obtained after a drug dog alerted to the presence of drugs in a car that defendant owned in which defendant was a passenger. Defendant argues that she was unlawfully seized under Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution, when the car was stopped and again when a police officer walked a drug dog around the car after both defendant and the driver had refused to consent to a search of the car with the dog. We conclude that, under the totality of the circumstances, the officer’s conduct did not constitute a show of authority under Article I, section 9, as to defendant such that it turned the ongoing traffic stop of the driver into a seizure of defendant. However, based on the Fourth Amendment, we conclude that defendant was unlawfully seized because the police did not articulate a factual basis for the initial traffic stop, which under the Fourth Amendment was an unlawful seizure of defendant. Accordingly, we reverse and remand.
We review the denial of a suppression motion for legal error and defer to the trial court’s findings of fact if there is constitutionally sufficient evidence in the record to support them. State v. Ehly,
On the day of the traffic stop, police were watching defendant’s residence for drug-related activity and observed a lot of foot and vehicular traffic coming and going from defendant’s home. Deputy Roque saw defendant get into a car as a passenger and, after following the vehicle, observed a traffic violation. Roque relayed that information to Sergeant Cardinal. Cardinal also observed an “equipment violation” on the car and stopped the car for both violations.
Deputy Dipietro arrived about 30 seconds after the initial stop, just as Cardinal was returning to his car to run the driver’s information. On his arrival, Dipietro approached the passenger side of the car because he knew defendant from prior contacts, identified himself, and asked if he could search the car using his drug dog. Defendant told Dipietro that the car was hers and refused to consent to a search. The driver also refused to consent to a search. Dipietro then retrieved his dog and started a drug-sniff walk of the.dog around the car, starting at the passenger-side headlight and moving counter-clockwise to the driver’s door, where the dog alerted to the odor of drugs in the car. Dipietro then returned the dog to his patrol car.
By that point, Deputy Pelletteri had arrived. Pelletteri asked defendant to get out of the car, based on Dipietro having told him that the drug dog had alerted. As defendant got out of the car and walked over to one of the patrol cars, Pelletteri heard something hit the ground. He saw a syringe at defendant’s feet that had not been there before and, unprompted, defendant said, “It’s not mine.” The syringe tested positive for methamphetamine.
Before trial, defendant moved to suppress all evidence obtained after the traffic stop, including the syringe. At the hearing on the suppression motion, Cardinal testified about his stop of defendant’s car:
“[PROSECUTOR]: [W]as Deputy A1 Roque involved [in the surveillance of defendant’s home]?
“ [CARDINAL]: Yes, he was.
“[PROSECUTOR]: Did he relay to you that he observed a traffic violation of some kind?
“[CARDINAL]: He did.
“[PROSECUTOR]: And at some point was a decision made to make a stop on that vehicle?
“[CARDINAL]: Yes, there was.
“[PROSECUTOR]: Did you personally observe your own traffic violation prior to making the stop of that vehicle?
“[CARDINAL]: Correct. I observed an equipment violation.”
On appeal, defendant argues that she was unlawfully seized under both Article I, section 9, and the Fourth Amendment and, thus, her suppression motion should have been granted. We turn first to defendant’s arguments under Article I, section 9. See Sterling v. Cupp,
Defendant argues that she was unlawfully seized under Article I, section 9, both at the time of the initial stop of the car and at the time that Dipietro began to walk the drug dog around her car. Defendant argues that she was seized at the time of the initial stop because Cardinal stopped the car for an equipment violation, which can be a violation for both an owner and a driver. See, e.g., ORS 815.220(1). As a result, she asserts that “a reasonable owner would not feel free to leave when an officer pulls the car over.” Defendant further argues that she was seized at the time of the dog sniff. Relying on State v. Mathis,
We review for legal error whether a police officer’s interaction with an individual amounts to an unlawful seizure under Article I, section 9. State v. Smith,
“A ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (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.”
Id. at 316 (emphasis omitted).
As a starting point, defendant was not seized under Article I, section 9, when Cardinal stopped the car by reason of her being a passenger in the car or her being the owner of the car pulled over for an equipment violation. Under Article I, section 9, passengers in a car stopped by police “without more, have not been ‘seized’ as a constitutional matter.” State v. Thompkin,
For defendant to have been seized, the police must have made a “show of authority” after the initial traffic stop that was constitutionally significant as directed at defendant. State v. Sherman,
The Supreme Court has explained that police inquiries or requests for cooperation, by themselves, are not searches or seizures under Article I, section 9. Backstrand,
Here, Dipietro asked defendant for her consent to search the car with the drug dog. In response, both she and the driver refused to consent to a search. Dipietro did not further pressure either occupant of the vehicle for consent, or engage them in further conversation. There was nothing about the inquiry that Dipietro made of defendant that sets it apart from the types of verbal inquires made during stops that do not implicate Article I, section 9. See, e.g., Ashbaugh,
The only thing “more” that occurred here is that Dipietro retrieved his dog and proceeded to walk it around the car in which defendant was seated. However, the record reflects that Dipietro started at the front of the car and then proceeded to walk the dog counter-clockwise over to the driver’s door, where the dog alerted. At that point, Dipietro returned the dog to his patrol car. Dipietro did not direct defendant to stay in the car (or to leave), never had the dog in front of the door that defendant would have used to leave, and, at all times, was moving the dog further away from where defendant was seated in the car. Nothing in the record suggests that any of the officers’ tone, manner, or conduct was threatening or coercive toward defendant or otherwise elevated the encounter to the level of a seizure by conveying to defendant that the officers would not allow her to leave. We thus conclude that Dipietro’s request to search the car with the dog and the actual drug sniff that occurred would not lead a reasonable person to believe that Dipietro had intentionally and significantly deprived defendant of liberty or freedom of movement.
We concluded that, under the totality of the circumstances, the defendant was seized under Article I, section 9, by the time that the officer told her that a drug dog was on its way. We came to that conclusion because, by that point, the defendant’s friend had been arrested; the officer had asked the defendant if she had drugs and would consent to be searched; the officer had asked her to shake out her bra after she had already turned out her pockets; the officer had twice asked to search her purse, which was refused; and the officer had then raised and confirmed with the defendant his decision to call a drug dog. Id. at 291-92. Under those circumstances, we concluded that “no objectively reasonable person in defendant’s position would have believed that she was free to leave pending the drug dog’s arrival.” Id. at 292.
None of the circumstances that led us to conclude that the defendant had been seized in Mathis are present here. The driver was not arrested or removed from the car, the interaction between Dipietro and defendant lasted only a few minutes between his arrival and the drug dog alerting to the car, defendant was not removed from the car before the drug dog alerted, Dipietro asked defendant only once if he could search her car, and he stopped his interaction with her once she refused. Under the totality of the circumstances in this case, nothing about Dipietro’s retrieval of the drug dog and subsequent walk around the car escalated the “mere conversation” with defendant to a seizure under Article I, section 9.
Because we conclude that defendant was not seized under Article I, section 9, we turn to defendant’s Fourth Amendment argument. Under the Fourth Amendment, defendant was seized for the duration of the stop when Cardinal stopped the car in which she was a passenger. See, e.g., Clemons,
Under the Fourth Amendment, reasonable suspicion “requires ‘some minimal level of objective justification’ for making the stop.” United States v. Sokolow,
Additionally, the officers lacked reasonable suspicion of a drug crime to support the stop of the car. A person’s mere association with a location of suspected drug activity is insufficient to support an objective, reasonable belief that that person is engaged in drug activity. See United States v. Hernandez,
Because the officers failed to articulate facts to establish objective, reasonable suspicion to justify the initial stop of the car, defendant was unlawfully seized under the Fourth Amendment, and the evidence obtained as a result of the stop of the car must be suppressed. Lopez-Soto,
Reversed and remanded.
Notes
In coming to the opposite conclusion, the concurrence places significance on defendant refusing to have the drug dog search her car before Dipietro conducted the drug sniff of the exterior of the car with the dog. However, a request to search the car with a drug dog is different from a walking a drug dog around the exterior of the car. The first—a search—is constitutionally significant and requires consent, a warrant, or an exception to the warrant requirement before law enforcement officers may proceed. When defendant refused to consent to a search, Dipietro did not pursue the matter. An exterior dog sniff of a car in a public place is not a search and does not require constitutional justification. State v. Smith,
Concurrence Opinion
concurring.
I would conclude that defendant was unlawfully seized under Article I, section 9, of the Oregon Constitution
We review the denial of a motion to suppress for legal error and defer to the trial court’s findings of fact if there is constitutionally sufficient evidence in the record to support them. State v. Ehly,
I begin with an analysis of defendant’s argument under Article I, section 9. See Sterling v. Cupp,
“Analytically, police-citizen encounters typically fall into one of three categories that correlate the degree of intrusiveness on a citizen’s liberty with the degree of justification required for the intrusion. At one end of the continuum are mere encounters for which no justification is required. At the other end are arrests, which involve protracted custodial restraint and require probable cause. In between are temporary detentions for investigatory purposes, often termed ‘stops,’ which generally require reasonable suspicion. Both stops and arrests are seizures for constitutional purposes, while less restrictive encounters are not.”
State v. Fair,
“The thing that distinguishes ‘seizures’ *** from [mere encounters] * * * is the imposition, either by physical force or through some ‘show of authority,’ of some restraint on the individual’s liberty.” State v. Ashbaugh,
“a seizure exists only if the officer’s conduct would be reasonably perceived as coercive in the sense that it would cause the citizen to reasonably believe that the officer is intentionally restraining the citizen’s liberty or freedom of movement in a significant way—that is, in a way that exceeds the bounds of ordinary social encounters between private citizens.”
Id. at 400 (citing State v. Holmes,
Given that standard, “‘law enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful.”’ Backstrand,
Thus, an officer’s mere inquiry of an individual is not a seizure. State v. Highley,
Consistently with the above, under Article I, section 9, passengers in a car stopped by police “without more, have not been ‘seized’ as a constitutional matter.” State v. Thompkin,
I agree with the majority that, under Article I, section 9, the officers did not seize defendant at the point at which Cardinal stopped the car and spoke to the driver. However, as explained below, I disagree with the majority’s conclusion that Dipietro did not engage in a show of authority when he brought the drug dog to defendant’s car after defendant denied consent to a search of the car with a drug dog. Consequently, I conclude that defendant was seized at this point.
The state does not argue that this issue—whether defendant was seized when Dipietro brought the drug dog to the car after she had refused consent—is controlled by Backstrand, or the related cases Highley and State v. Anderson,
Here, I confront the opposite situation. Defendant chose not to cooperate. That choice factors into the totality of the circumstances presented here and aids in the conclusion that Dipietro’s conduct constituted a show of authority for the purposes of Article I, section 9. As noted, Cardinal stopped the car defendant was traveling in, and thereby seized the driver, her companion. Within seconds, a second officer, Dipietro, who defendant knew from previous interactions, directly approached the passenger side of the vehicle where she was seated. He spoke only to defendant, and requested her consent to use a drug dog to search the car. Defendant refused to grant consent to the officer, as did the driver of the car. After defendant’s refusal, the officer began circling defendant’s car with a 90-pound German Shepherd that, as was later demonstrated, was powerful enough to physically pull Dipietro to the car.
As noted, the state argues that verbal inquires are not seizures. However, that statement is incorrect because it is overbroad; I stress that only verbal inquires, without more, are not seizures. Highley,
The next question is whether that seizure was not supported by reasonable suspicion of criminal activity— namely, that she had committed a drug crime. In particular, defendant notes that according to Cardinal’s testimony, the officers stopped the car only for equipment and traffic violations, not because of a suspected drug-related offense, and that the state did not identify any facts that would give rise to a reasonable suspicion that defendant had committed a drug crime. The state responds that the officers had reasonable suspicion because they had heard reports of drug activity and had observed heavy foot and vehicle traffic at defendant’s residence on the day in question and Dipietro recognized defendant from past contacts. I agree with defendant that the officers lacked reasonable suspicion.
A stop “must be justified by reasonable suspicion of criminal activity.” State v. Rodgers/Kirkeby,
I readily conclude that the officers lacked reasonable suspicion on these facts. We have repeatedly held that “a person’s mere
In sum, I conclude that police unlawfully seized defendant when Dipietro brought the drug dog to defendant’s car after defendant denied consent to do so and that, at that point, police lacked reasonable suspicion that defendant had committed a drug crime. Consequently, the trial court erred in denying defendant’s motion to suppress.
Accordingly, I concur that the case should be reversed and remanded, but based on Article I, section 9, and not on the Fourth Amendment.
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 [.]”
The state does not argue, and I do not conclude, that evidence obtained after the stop was sufficiently attenuated to purge it of the taint of police illegality.
The majority contends that there is significance in the fact that Dipietro testified that he asked defendant for consent to use his drug dog to search the car, but did not, in fact, search the car in a constitutional sense, because he only walked the drug dog around the car.