STATE OF OREGON, Plaintiff-Respondent, v. TERESA SOTO-NAVARRO, Defendant-Appellant.
Washington County Circuit Court 17CR39495, 16CR82211; A166495 (Control), A166496
Oregon Court of Appeals
February 10, 2021
September 21, 2020
309 Or App 218 (2021); 482 P3d 150
Janelle F. Wipper, Judge.
Submitted on remand from the Oregon Supreme Court February 6, resubmitted en banc September 21, 2020; reversed and remanded February 10, 2021
Reversed and remanded.
En Banc
On remand from the Oregon Supreme Court, State v. Soto-Navarro, 366 Or 64, 455 P3d 37 (2019).
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John P. Evans, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Before Egan, Chief Judge, and Armstrong, Ortega, DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, Mooney, and Kamins, Judges.
LAGESEN, J.
Reversed and remanded.
DeVore, J., dissenting.
“[J]ust keep your hands where I can see them,” Officer Leininger ordered defendant as he stood next to her car door armed and in uniform, his patrol car with its lights flashing not far behind, his partner, Deputy Gravel, at the driver‘s door of the Volkswagen Jetta in which defendant had been riding on the passenger side. She complied. Was defendant seized for purposes of
We took this matter into full court to consider that question, a question we answer yes. That answer, combined with the Supreme Court‘s recent rejection of our longstanding
In a stop so pretextual the pretext got lost, Gravel and Leininger pulled over the Jetta in which defendant was a passenger. Gravel and Leininger were on a “street crimes mission” that night, “looking for narcotics and guns, and that kind of thing in the Cornelius area.” As “part of the mission,” they “had a dog attached to us to come to our traffic stops.”
They stopped the Jetta because they had been informed by one source that the car had a narcotics connection,1 and they had been informed by a different source—a narcotics officer for the City of Beaverton—that he observed the Jetta execute two traffic violations: a rolling stop followed by a too-wide turn. Although, according to Leininger, “it was a traffic stop,” pulling the car over was part of their mission that night to find narcotics.
Defendant moved to suppress the evidence of the drugs, cash, phones, and paraphernalia. Among other things, defendant contended that she had been seized under both
In response, the state acknowledged that defendant was seized under the Fourth Amendment by virtue of the traffic stop alone but contended that Tux‘s sniff did not unconstitutionally prolong the stop under the analysis of Rodriguez. As for
The trial court denied the motion. It first rejected defendant‘s contention that the pretextual nature of the stop requires suppression of the evidence: “So it is clear that there was, as the officers termed it, a drug mission, or a mission, and there were traffic violations that the officers testified to, and so those were the reasons that [the driver] was pulled over.” The court then explained that “the question becomes, was this dog sniff-dog search on the exterior of the car done during the, what we call the unavoidable lull.” Finding that the dog sniff “was happening at the same time” as the traffic investigation, the court ruled that the sniff did not extend the stop “and, therefore, probable cause for the drug investigation did not happen outside of the unavoidable lull.”
Defendant was subsequently convicted as charged in a stipulated facts trial. She appealed and we initially affirmed without opinion. State v. Soto-Navarro, 298 Or App 554, 449 P3d 566 (2019). Defendant petitioned for review in
The structure of the officers’ street-crimes mission—in particular, the quick deployment of a drug-detecting dog during a pretextual but lawful traffic stop in a manner that comported with our court‘s unavoidable lull doctrine—complied with
Under Arreola-Botello, “for the purposes of
“If, after stopping an individual based on probable cause that the individual committed a traffic offense, an officer may inquire into criminal activity without reasonable suspicion of a specific crime, an officer will have less of an incentive to develop the requisite reasonable suspicion of that crime which ordinarily would be required to stop the individual for a temporary criminal investigation. By applying subject-matter limitations to investigative activities and questioning,
Article I, section 9 , ensures that officers do not turn minor traffic violations into criminal investigations without a constitutional basis for doing so.”
Arreola-Botello, 365 Or at 713. And here that rule was violated by the deployment of Tux during a traffic stop for a rolling stop and a too-wide turn—neither of which have anything to do with drugs—without any independent constitutional justification for deploying him.
That would seem to require reversal. The trial court denied defendant‘s motion based on its conclusion that, on the facts of this case, the deployment of Tux was authorized under the unavoidable lull doctrine. But the unavoidable lull doctrine is no longer a valid doctrine, and, as noted, Tux‘s deployment does not comport with the subject-matter limitations that Arreola-Botello placed on traffic stops.
The state nonetheless argues that we must affirm. The state reiterates that, for purposes of
The state is correct that a traffic stop does not necessarily result in the seizure of passengers for purposes of
As an initial matter, Arreola-Botello may have eroded our decision in Ehret, and the Supreme Court decisions on which it rested. At the very least, its analysis undercuts them. Part of the Supreme Court‘s explicit rationale for concluding that
Ultimately, those are questions for another case. That is because, in addition to her argument in her supplemental brief that she should be able to enforce the driver‘s rights under Arreola-Botello, defendant seeks to enforce her own rights. Defendant‘s theory of the suppression under the state constitution has never been that she was seized simply because she was a passenger in a stopped car. From the start, her theory was that officers engaged in a sufficient show of force upon stopping the car, and before the dog sniff, that she was seized, and then that seizure—the legality of which she did not contest in the trial court4—was unlawfully extended by the dog sniff. The parties argued before the court about the issue of whether defendant was seized bеfore the dog sniff, and the trial court asked pointed questions on the issue.
Moreover, although the trial court never expressly stated that it had determined that defendant was seized before the dog sniff, its decision to resolve the case under the unavoidable lull doctrine suggests that the court first determined that defendant herself was seized. That is because the unavoidable lull doctrine presupposes an antecedent seizure, and also because, under years of our case law, the facts adduced in the trial court compel the conclusion that defendant was seized for purposes of
Regardless, even if the court did not reach the seizure issue itself, the record in the case allows for but one legal conclusion: Defendant was seized and then that seizure was unlawfully extended by Tux‘s sniff. Cf. Sherriff,
The seizure: On these facts, it would be easy to conclude that defendant was seized from the very outset of the traffic stop. It is important to keep in mind that not all stops of cars are traffic stops; cars can be stopped for many different reasons. Under the circumstances here, defendant and the driver of the car had little reason to think that the stop was a traffic stop of the driver, as distinct from a criminal investigatory stop targeting both of them. There is no evidence that the Jetta was involved in any traffic violations after Gravel and Leininger started tailing it, so defendant and the driver would have had little reason to think they were being stopped for traffic violations. The officers’ conduct of flanking the car would communicate to the occupants of the car that the show of authority was directed at both of them. Finally, neither officer testified that he had communicated to either the driver or defendant the basis for the stop; instead, each officer testified that he obtained identifying information from the person he was talking to. Under those circumstances, a passenger in defendant‘s position would not understand the officers’ show of authority to be directed solely at the driver for the purpose of processing a traffic violation, contrary to the rationale for the rule that a traffic stop does not automatically result in a seizure of passengers. See Stevens, 364 Or at 100 (“Moreover, implicit [in the rule that passengers are not automаtically seized by a traffic stop] is the proposition that the passengers in a car stopped for a traffic or criminal offense would not understand that the officer‘s show of authority in stopping the driver extended to them.“).
But, at the very latest, Leininger seized defendant when he told her to keep her hands where he could see them. By now, we have concluded again and again that comparable directives about hand movement and placement are seizures for purposes of
Najar does not stand alone. We have concluded that directives restricting hand movement are
The unlawful extension: Allowing that the lawfulness of the seizure of defendant prior to the dog sniff was not contested, the only plausible constitutional justification for it on this record was for the purpose of ensuring officer safety during the lawful processing of the traffic stop. The state has never identified any theory or facts that, for purposes of
(the defendant not seized by polite request to “‘please’ not put his hands in his pockets” but would have been seized if ordered to do so); United States v. Griffin, 884 F Supp 2d 767, 775-76 (ED Wis 2012) (finding a seizure where the officer “drew his weapon and ordered defendant to show his hands“). But see Bentley v. State, 846 NE2d 300, 306-07 (Ind Ct App 2006) (officer‘s request that occupants of a vehicle “keep their hands where he could see them” was not a seizure; occupants only seized once officer ordered them out of vehicle); Commonwealth v. Wright, No 09-P-226, 77 Mass App Ct 1113, 2010 WL 2998672 at *2 (Aug 3, 2010) (decision issued pursuant to Massachusetts Appeals Court Rule 1:28) (officer request that the defendant “keep [his hands] where the officer could see them” not a seizure). To the extent we have cited unpublished opinions in this footnote, we have done so in accordance with the rules of the respective jurisdictions allowing for citation to unpublished decisions for their persuasive value.
Reversed and remanded.
DeVORE, J., dissenting.
This case is on remand for reconsideration in light of State v. Arreola-Botello, 365 Or 695, 451 P3d 939 (2019), because that decision ended the “unavoidable lull” concept, on which the triаl court relied in part. The decision of the Supreme Court left this court with the commonplace question whether, absent the “unavoidable lull” rationale, defendant was unlawfully seized, under these circumstances, while a passenger in a car. The answer to that question necessarily begins with Oregon‘s well-established rule, discussed below, that a passenger is not seized during a traffic stop, within the meaning of
I. FACTS
A. The Traffic Stop
On the night in question, Hanted, the driver of a Volkswagen Jetta, committed two traffic infractions—rolling through a red light and an improper lane change. A detective in an unmarked car called dispatch for a marked car to make a traffic stop. Less than 30 seconds later, Washington County Deputy Gravel and Hillsboro Police Officer Leininger followed Hanted‘s Volkswagen. They were told that Hanted was on probation for possession of methamphetamine. They activated their overhead lights and chirped the siren for a block or two until Hanted finally
Leininger had approached the passenger side of the car, and his initial “contact was brief.” Defendant rolled the window down and seemed very “nervous.” Given her prior movements, he said to her, “just keep your hands where I can see them,” and the pair engaged in “a brief like small-talk conversation.” He asked for defendant‘s name and date of birth, but he did not request or take any identification card. He relayed her information to dispatch about three minutes after the stop.1
Another deputy, DiPietro, had arrived at the scene. He approached the driver‘s side window as Gravel left to begin the citation. DiPietro inquired into whether any guns or drugs were in the car. He asked for consent to search the vehiclе with a drug-detecting dog. The driver declined to give consent. DiPietro told the driver that he intended to walk the dog around the perimeter of the car, and then proceeded to do so.
When Leininger saw DiPietro and the dog arrive, Leininger stood near the car, but out of the way, observing. The dog‘s arrival cut short his “very abbreviated conversation” with defendant. During the dog‘s first walk-around or “sweep,” the dog “alerted” on the passenger‘s side door, indicating that it had detected and located an odor.
Based on that alert, Leininger asked defendant to step out of the car. She did not immediately cooperate, and so Leininger insisted, “No, you need to step out of the vehicle.”
B. Trial Court Proceedings
Defendant was charged with possession and delivery of methamphetamine,
In colloquy, defendant stressed that the officers were conducting a drug investigation in the guise of a traffic
After checking authorities cited, the trial court stated that case law indicated that pretext stops are “still valid,” if there are reasons for a stop like the traffic violations as in this case.5 The trial court found that the dog search and alert occurred during an “unavoidable lull” while Gravel was issuing the citation and, as a matter of law, that the dog‘s alert established probable cause for further drug investigation.6 The subsequent searches, the court explained, were justified by defendant‘s consent and the automobile exception to the warrant requirement. The court denied defendant‘s motion. The parties proceeded to a stipulated-facts trial, and defendant was convicted of both offenses.
C. Appellate Proceedings
In her first set of arguments before this court, defendant contended that the evidence was the fruit of an
Thereafter, the Supreme Court decided Arreola-Botello. In that opinion, the court held that, for the purposes of
On remand to this court, defendant repeats that the evidence was the fruit of an unlawful search. She argues, for the first time on appeal, that circling the car with a drug dog constituted investigative activity unrelated to the traffic stop, and it therefore exceeded the subject-matter limitation of the stop under Arreola-Botello. Relatedly, she assumes that the search that is unlawful as to thе driver is unlawful as to her, too. In her view, that unlawful activity led to the discovery of the evidence on her person and in her bags—places in which she held constitutionally protected privacy interests. Alternatively, defendant renews her argument that she was unlawfully seized, and asserts that the unlawful request and the unlawful dog sniff, in combination with other police conduct, constituted a show of authority sufficient to show that defendant would not have reasonably felt free to leave.7
II. LAW
A. Search and Seizure
On one hand, “mere conversation” that is “non-coercive” and involves no restraint on liberty or freedom of movement does not constitute a seizure. Arreola-Botello, 365 Or at 701 (citing State v. Rodgers/Kirkeby, 347 Or 610, 621, 227 P3d 695 (2010)). On the other hand, arrests are considered seizures and require probable cause. Id. (citing Rodgers/Kirkeby, 347 Or at 621). Traffic stops fall “somewhere in between,” because the motorist “is legally obligated to stop at an officer‘s direction and to interact with
For some time, Oregon cases have limited the duration of a traffic stop to those things reasonably related to the purpose of the stop. See, e.g., Rodgers/Kirkeby, 347 Or at 629-30 (impermissible extension of stops). As a result of that temporal limitation, the cases of this court had developed a doctrine of the “unavoidable lull,” which permitted unrelated inquiries during a traffic stop so long as the inquiries did not unreasonably extend the duration of the stop. See, e.g., State v. Gomes, 236 Or App 364, 372, 236 P3d 841 (2010) (so holding).
In Arreola-Botello, the Oregon Supreme court returned to the “constitutionally permissible scope of a traffic stop under
“all investigative activities, including investigative inquiries, conducted during a traffic stop are part of an ongoing seizure and are subject to both subject-matter and durational limitations. *** Put simply, an ‘unavoidable lull’ does not create an opportunity for an officer to ask unrelated questions, unless the officer can justify the inquiry on other grounds.”
Id. at 712. With that, Arreola-Botello ended the unavoidable lull concept. Consequently, the Supreme Court vacated our decision in this case, which, like the trial court, had relied, in principal part, on the unavoidable lull doctrine and remanded the case for further consideration in light of existing law. That said, Arreola-Botello did not impugn prior case law on the passenger rule.
B. The Passenger Rule
Therе should be no dispute that Oregon‘s rule on passengers in traffic stops is well-established. “Passengers
Only a year before Arreola-Botello, our Supreme Court rejected an argument that its own statements about Oregon‘s passenger rule were mere dicta that should be disclaimed or “overruled.” State v. Stevens, 364 Or 91, 93, 430 P3d 1059 (2018). In Stevens, the defendant passenger had argued that “if the stop of the driver was *** unlawful and she was stopped derivatively, then her stop was also unlawful.” Id. at 97 n 2. She argued “that passengers in a stopped car would not feel free to walk away and that there are sound policy reasons for treating a stop of a car as a stop of the passengers.” Id. at 99. The court determined, however, that implicit in the court‘s precedents “is the proposition that the passengers in a car stopped for a traffic or criminal offense would not understand that the officer‘s show of authority in stopping the driver extended to them.” Id. at 100. The court adhered to its prior rulings “that stopping the driver of a car does not constitute a seizure of the passengers for purposes of
Generally, “a passenger is only seized when there has been the imposition, either by physical force or through some ‘show of authority,’ of some restraint on the individual‘s liberty.” Ross, 256 Or App at 754 (internal quotation marks omitted). “[S]omething more than just asking a question, requesting information, or seeking an individual‘s cooperation is required of an officer‘s conduct,” such as “the content
If there has been a seizure, the fact that an officer exceeded the scope of a traffic stop does not automatically militate in favor of suppression of evidence. The questions of whether a search or seizure was unlawful and whether evidence is admissible are “separate inquiries.” State v. Rowell, 251 Or App 463, 473, 283 P3d 454, rev den, 353 Or 127 (2012). Significantly, “evidence may be suppressed only if police invaded the personal rights of the person who seeks suppression; the violation of someone else‘s rights is not enough.” State v. Makuch/Riesterer, 340 Or 658, 670, 136 P3d 35 (2006). “[I]t is not enough that police may have violated
Accordingly, we have determined that, where police impermissibly extended a traffic stop, the passenger of the vehicle was not entitled to have evidence suppressed because it was the driver‘s rights—not the passenger‘s—that had been violated. State v. Ehret (A111249), 184 Or App 14, 19, 55 P3d 518 (2002), rev den, 337 Or 84 (2004). In Ehret, an officer made a lawful traffic stop of the defendant‘s father, who was driving a car in which the defendant was a passenger. Id. at 16. The officer unlawfully extended the traffic stop‘s duration by asking the father to get out of the car, searching him, and questioning him extensively about narcotics. Id. After 15 minutes of questioning, the father admitted, in part, that the defendant possessed more than an ounce of marijuana. Id. Based on that information, the officer confronted the defendant. Id. The defendant reached into his pants and produced several baggies of marijuana, as well as construction paper containing LSD. Id. He said that the baggies contained marijuana and belonged to his father. Id. That prompted police to search the remainder of the car, where they discovered a large amount of cash and more contraband. Id. Partially based on evidence from that search, the defendant was charged with possession of a controlled substance. Id. at 16-17.
At trial, the defendant moved to suppress statements that he made to police, as well as evidence seized from the car. Id. at 16. The trial court denied that motion. Id. The defendant appealed, arguing, in relevant part, that the evidence was seized as the result of, or derived from, the unlawful detention of his father. Id. at 17. Specifically, he asserted that “the police traded on the violation of [his father‘s] right against an unreasonable seizure to unlawfully obtain admissions from [his father], which in turn prompted defendant to produce incriminating evidence from his person.” Id. at 18. The defendant argued that the officer‘s use of the father‘s statements to confront him was “an unconstitutional use of a prior illegality that require[d] suppression under
Applying those principles, we should recognize that police exceeded the subject-matter scope of the traffic stop as to the driver, Hanted, but they did not thereby violate the rights of defendant, who was but a bystander to the violation of his rights. Defendant was not the person whose rights were violated. See id. (rejecting suppression based on the violation of the rights of another). In short, Arreola-Botello does not guide, nor answer, the question that remains in this case. Contrary to the majority opinion, Arreola-Botello does not rewrite Oregon‘s passenger rule.
C. The Majority Opinion
Notwithstanding the Supreme Court‘s fresh affirmation of the passenger rule in Stevens and our clear decision in Ehret, the majority opinion in this case suggests that Arreola-Botello signaled a change that should imply that all passengers should be deemed to be unlawfully seized whenever a driver is unlawfully seized. The majority opinion posits that Arreola-Botello has “eroded” or “undercut” the Ehret decision and the Supreme Court decisions on which it rested. 309 Or App at 225. Although—legally speaking—Oregon courts have long agreed that a passenger could walk
In my opinion, such expansive dicta is unnecessary, mistaken, and unfortunate for the legal debate that will ensue in cases to come. Four difficulties should explain why Arreola-Botello does not have the implications that the majority opinion imagines.
The first difficulty is that there is no meaningful difference to justify a distinction between durational and subject-matter limitations of
The second difficulty is that Arreola-Botello said nothing to suggest changing Oregon‘s rule on passengers in traffic stops. Only a year before, the Supreme Court took the trouble to resolve any doubt that a passenger‘s rights were not violated ipso facto by an allegedly, unlawfully extended stop of a driver. Stevens, 364 Or at 96, 97 n 2, 100. The Supreme Court could not have been unaware of its recent affirmation of the passenger rule.
The third difficulty is that, if a passenger‘s rights were implicated by Arreola-Botello, then the Supreme Court would have taken review in this very case to address a passenger‘s rights under Arreola-Botello as the next logical step if it were indeed compelled by Arreola-Botello. The Supreme
The final difficulty with the majority opinion is that it fundamentally changes the restorative remedy rationale for violations of
The Oregon Supreme Court has repeatedly explained that, ““unlike the
Although the majority opinion means well, rewriting Oregon‘s passenger rule and shifting from our individualized restorative remedy for a constitutional violation are tasks that are limited to the Oregon Supreme Court. That is so because that court has established controlling precedents on those issues.
D. Circumstances Short of Seizure
If we do not turn wide but, instead, address directly the question presented on remand, we revisit whether
When we approach the question, we remember that, if the trial court does not make findings on all pertinent facts and there is evidence from which those facts could be decided more than one way, we will presume that the trial court found facts in a manner consistent with its ultimate conclusion. Stevens, 311 Or at 127. The trial court rejected defendant‘s alternate argument about a seizure of defendant herself—a seizure, that is, before reasonable suspicion arose with the dog‘s alert.
For that reason, we should begin, contrary to the majority opinion, by accepting that the driver and defendant would have understood from their initial interaction with the officers that the situation started as a traffic stop. We should do so because Deputy Gravel immediately approached the driver, because Gravel gathered the information necessary to write a citаtion for traffic offenses, because he took that information back to write a citation for a traffic violation, because Officer Leininger took no identification card
The majority opinion takes a different approach, choosing to assume that “defendant and the driver of the car had little reason to think that the stop was a traffic stop of the driver, as distinct from a criminal investigatory stop targeting both of them.” 309 Or App at 227. The majority opinion states:
“There is no evidence that the Jetta was involved in any traffic violations after Gravel and Leininger started tailing it, so defendant and the driver would have had little reason to think they were being stopped for traffic violations.”
(Emphasis added.) To seize on that moment of time, to assert that there is “no evidence,” is an advocate‘s account and contrary to our standard of review. In fact, the driver Hanted had just committed two traffic violations, reported by a detective, and the officers’ patrol car had fallen in behind the Jetta within 30 seconds with overhead lights flashing.
The majority opinion next states that the officer did not testify that they told anyone the reason for the stop. Id. at 227. Although it is true that, at the suppressiоn hearing, Gravel was not asked if he identified the traffic violations when he spoke with the driver, we do know that Gravel spoke with Hanted immediately; that Gravel asked him for his name and birthdate for the purpose of writing a traffic citation; that Gravel received Hanted‘s driver‘s license; and, upon gathering that information and without seeking more, Gravel returned to the patrol car to write the citation. Consistent with our standard of review and the trial court‘s ultimate conclusion denying the motion to suppress, we should accept that those facts indicated circumstances that the driver and defendant would initially see as a traffic stop.
The majority opinion concludes, in the least, that Leininger seized defendant when he told her to keep her hands where he could see them. 309 Or App at 227. Like this court when we reviewed the same facts before, I disagree. In my opinion, when considered in sum, the conduct
Leininger was not speaking to a driver who was the principal target of the police encounter; he spoke to a passenger; and he gave her no other directions or limitations on her movement beyond the initial request. Cf. State v. Najar, 287 Or App 98, 101-02, 401 P3d 1205 (2015) (officer confronting driver of car parked in suspicious circumstances, giving
Leininger inquired into defendant‘s name and birthdate and relayed that information to dispatch. He did not ask for, nor retain, any identification card so as to prevent defendant from leaving. Backstrand, 354 Or at 417 (“A request for identification, in and of itself, is not a seizure. Nor is an officer‘s act of checking the validity of that identification, in and of itself, a seizure.“); State v. Thompson, 264 Or App 754, 759, 333 P3d 1125 (2014) (“[i]n ordinary encounters between, for example, a young-appearing would-be purchaser of alcohol and a seller, the seller‘s request for, and brief retention of, the purchaser‘s identification would not be considered coercive or extraоrdinarily unsocial,” but if the seller “takes the card and holds it for an amount of time far in excess of what is necessary to confirm that it is genuine—say, for 30 minutes—the purchaser‘s freedom of movement has been significantly impaired” (emphasis in original)).
It is significant that, after that initial contact, Leininger engaged defendant in small talk that was brief. See Graves, 278 Or App at 136 (officer did not seize the defendant when he asked her to get out of the car in which she was a passenger, directed her toward the front of his patrol car, and began asking her questions about her parole status and criminal history, where the officer did not draw his weapon, raise his voice, or otherwise threaten defendant, and where the questioning was “easygoing“). Leininger did not tell defendant that she had to remain. He stopped and stepped back out of the way when DiPietro proceeded with the dog.
It is also significant that, in the brief “small talk,” Leininger did not make accusations of wrongdoing or demands to see evidence. Leininger did not imply that defendant was under suspicion and would need to comply with his demands as a requisite to freedom. See State v. Canfield, 266 Or App 73, 82, 338 P3d 166 (2014) (officer did not stop the defendant by approaching, saying that the defendant was acting strange, briefly retaining identification, inquiring into potential drugs or weapons, and asking for consent
As for the other officers, they did not even address defendant. Gravel and DiPietro spoke exclusively to the driver, and, as for the drug dog, its mere presence or pass around the car, before its alert, did not indicate that defendant was seized. See State v. Rosales, 291 Or App 762, 766-67, 423 P3d 112 (2018) (dog sniff conducted in course of traffic stop was not seizure, regardless of whether the officer and the dog may have briefly blocked the passenger‘s door, where there was no direct or unambiguous accusation from officer that the passenger was in possession of drugs).
Up to the point of the dog‘s alert, nothing in the record suggests that Leininger‘s demeanor or manner or tone in talking to defendant was coercive. He did not brandish a weapon, shout, or threaten her. Nothing in the content or manner of his questioning, or his accompanying physical acts, would reasonably be construed as a threatening or coercive show of authority requiring compliance. In the context of the situation, the actions of Leininger were not a show of authority that amounts to a seizure.
The only aspect of this case that is new is that now we understand that driver Hanted‘s rights were violated, given Arreola-Botello. Accordingly, defendant has urged a combination theory dependent on the violation of the driver‘s rights. Defendant argues that the actions of the officers in combination with the illegality of their investigatory activities constituted a show of authority that would reasonably have made her feel not free to leave. In its essence, that argument is just a restated challenge to Oregon‘s passenger rule—that a passenger is not seized with a stop of the driver. It is a challenge restated to add that the stop was unlawful as to the driver. This court has rejected similar arguments before, and there should be no reason to reach a different conclusion here. See, e.g., Ross, 256 Or App at 754 (rejecting the argument that the defendant was seized by virtue of being a passenger in a vehicle whose driver was purportedly improperly seized by an unlawful extension of a traffic stop).
III. CONCLUSION
In my opinion, the trial court did not err in denying defendant‘s motion to suppress (a) because she was not seized prior to the time when officers had reasonable suspicion when the drug dog alerted, (b) because the facts have not changed since we previously rejected defendant‘s alternate argument about a personal seizure, (c) bеcause we have not explained a reason to reconsider the same facts to reach a different result, and (d) because Arreola-Botello did not impugn Oregon‘s passenger rule. To conclude otherwise invites unnecessary uncertainty and unnecessary debate in cases yet to come. Worse yet, to conclude otherwise risks the safety of citizens and officers in Oregon‘s traffic stops.
I respectfully dissent.
Tookey J., and Mooney J., join in this dissent.