Defendant appeals a judgment of conviction for one count of unlawful delivery of marijuana for consideration, ORS 475.860, and one count of unlawful possession of marijuana, ORS 475.864. The state obtained the evidence against defendant, which includes both physical evidence and statements, after Oregon State Police Sergeant Williams stopped defendant for a traffic violation and then, during the course of that stop, began investigating defendant for suspected involvement in drug trafficking. Defendant moved to suppress that evidence on the ground that Williams unlawfully extended the traffic stop when he began investigating defendant for drug trafficking and that, as a result, Article I, section 9, requires suppression of all evidence obtained after that point. The trial court denied the motion, concluding that, although Williams extended the traffic stop, he did so lawfully because, at the time, he had reasonable suspicion that defendant was engaged in drug trafficking. On appеal, defendant assigns error to the trial court’s denial of the motion to suppress. As framed by the parties, the question before us is whether the trial court erred in determining that Williams had reasonable suspicion that defendant was engaged in drug trafficking at the time that he extended the traffic stop. We conclude that the court erred and, accordingly, reverse and remand.
Our review of a trial court’s denial of a motion to suppress is for legal error. State v. Maciel-Figueroa,
The facts pertinent to the issue on review are not disputed. Defendant was driving eastbound on U.S. Highway 20 in Harney County at around 9:30 in the morning. His friend, Peterson, was riding in the car with him and his mother, Sandra,
Williams concluded that Sandra was weaving deliberately, and not because she was impaired. Williams thought that Sandra was weaving either to alert defendant to Williams’s presence, or to “bait” Williams into stopping her. Unrelated to this encounter, Williams had heard about baiting from other officers. Those officers had indicated that such activity may occur when multiple vehiсles involved in narcotics trafficking travel together. Sometimes, one vehicle will “bait” law enforcement by committing traffic violations so that law enforcement will stop that vehicle, permitting the other vehicle to continue traveling. At the time of this encounter, however, Williams had not seen such activity himself nor recеived training on any such activity.
Sandra’s deliberate weaving, which might have been baiting activity, caused Williams to suspect criminal activity, although not narcotics trafficking specifically. Based on that suspicion, Williams decided that he wanted to stop the two cars to investigate further, but did not want to act alone and requested that
After stopping the two cars, Williams spoke with defendant and Peterson while Johnson spoke with Sandra. Williams observed that defendant’s car was messy, smelled strongly of cigarettes, and was littered with trash and energy drinks. Williams asked defendant whether the car being driven by Sandra was traveling with them, and defеndant responded that it was and it was being driven by his mother. Defendant explained that they were traveling from Klamath Falls, where they had been staying with defendant’s brother-in-law.
Williams told defendant that he thought that Sandra was trying to “bait [Williams] into stopping her.” Defendant appeared nervous, he avoided making eye contact, and his face was flushing. When Williams asked defendant about his nervousness, Peterson interjected and explained that defendant was nervous because his license was suspended. Williams then asked for their identification. Defendant provided an identification card and confirmed that his license was suspended. Peterson provided a “tattered and unreadable” paper license. Peterson also explained that he had been driving most of the way, but that defendant had taken over driving when Peterson grew tired. Williams did not smell any “burned or unburned” marijuana.
Williams continued to suspect criminal activity, told defendant and Peterson that he thought the two were transрorting marijuana, and asked defendant for written consent to search the vehicle. From that point on, Williams pursued the investigation of defendant’s involvement in drug trafficking. Ultimately, defendant admitted that there was marijuana in Sandra’s car and that it belonged to him. Officers searched Sandra’s car and found two duffel bags containing mоre than 60 pounds of marijuana. Later, after defendant, Peterson, and Sandra were arrested, Peterson told officers that they had traveled to California to purchase the marijuana.
Before trial, defendant moved to suppress all evidence obtained after Williams told defendant and Peterson that he suspected them of marijuana trafficking.
On appeal, defendant assigns error to the trial court’s denial of his motion to suppress. He contends that the trial court erred when it concluded that Williams had reasonable suspicion that defendant was engaged in drug trafficking at the time that he extended the stop. We agree with defendant.
As to the first point, although Williams’s subjective belief is not the focus of the parties’ arguments on appeal, we note that his testimony suggests that he did not suspect defendant of a specific crime or type of crime at the time that he extended the stop, as required under Maciel-Figueroa. When asked on severаl occasions whether he suspected defendant of drug trafficking, Williams clarified each time that he suspected that defendant was involved in criminal activity generally. Williams said that he thought that the criminal activity likely would turn out to be some kind of narcotics trafficking because that is what he had “primarily seen in the areа,” but acknowledged that, at the time that he started asking defendant about drug activity, his suspicion was of “criminal activity.” Given that testimony from Williams about what he believed at the time, it is questionable whether Williams had a subjective belief that defendant might be involved in drug trafficking—as distinct from criminal activity generally—when he extended the stop.
As to the second point, even if we assume that Williams had the requisite subjective belief regarding defendant’s involvement in the specific offense of drug trafficking, that belief was not objectively reasonable under the totality of the circumstances. At the time that Williams extended the stop, nothing that he knew made it objectivеly reasonable to believe that defendant might have been trafficking in drugs. All that Williams knew was that defendant was driving on a suspended license on an interstate highway in a messy car with his mother driving behind him, that defendant was nervous to talk to him, and that defendant’s mother appeared to deliberately weave her car when Williams first started following them, which might have been an effort to alert defendant to Williams’s presence (perhaps so defendant would be mindful of the traffic laws) or might have been the type of baiting activity that Williams had heard about from other officers. None of that information, without more, made it objectively reasonable to think that defendant might have been trafficking drugs (which could be why Williams kept clarifying that his suspicion was of “criminal activity,” not drug trafficking). Although Williams characterized Highway 20 as a “drug trafficking corridor,” there is no indication that that interstate highway has fallen so out of favor with travelers not trafficking in drugs that it would be reasonable to infer that a pеrson is a drug trafficker simply from his use of the highway. And, as defendant points out, we routinely have concluded that officers lacked reasonable suspicion to investigate for drug crimes in very similar circumstances. See, e.g., State v. Maciel,
In arguing for a contrary conclusion, the state relies heavily on Williams’s observation of the possible “baiting” activity by Sandra, contending that that activity made it objectively
Second, after observing the alleged baiting activity, Williams followed defendant and his mоther for nearly 20 minutes before initiating the stop. There is no indication that Sandra engaged in additional baiting activity during that time, which would tend to suggest that Sandra was not intending to bait Williams, but had simply been making defendant aware of Williams’s presence. In other words, the passage of time diminished the reasonableness of the inferenсe that Sandra had been engaged in baiting activity, which in turn, diminishes the weight that activity can be afforded in assessing whether Williams had reasonable suspicion of drug trafficking. See State v. Lovell,
In sum, the trial court erred in concluding that Williams had reasonable suspicion to extend the stop. Consequently, the trial court erred in denying defendant’s motion to suppress.
Reversed and remanded.
Notes
Because defendant’s mother shares her last name with defendant, we refer to her only as Sandra to avoid confusion.
Some of that evidence was discovered in defendant’s mother’s car, and some of that evidence consists of statements by Peterson. Defendant’s standing to seek suppression of the evidencе obtained from Peterson and his mother’s vehicle has not been disputed in this matter.
The state has not argued attenuation with respect to any of the evidence obtained after Williams unlawfully extended the stop. Because the state bears the burden of proving attenuation, in the absence of any such argument our case law dictates that suppression is required. See State v. Kimmons,