Argued and submitted January 10, 2013
On review from the Court of Appeals.[*] (Nos. CC 08CR0785FE; CA A144832)
Ernest G. Lannet, Chief Deputy Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
David B. Thompson, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
In this criminal case, we consider whether a police officer violated Article I, section 9, of the Oregon Constitution when, after lawfully stopping defendant to investigate a traffic violation and deciding not to issue him a citation, the officer continued to detain defendant, conducted further investigation, and discovered evidence that defendant possessed a controlled substance. We conclude that the officer's request for defendant's driver's license, and his brief detention of defendant pending verification of defendant's driving privileges, were reasonably related to the officer's investigation of the traffic violation and were therefore lawful. We also conclude that the officer's other investigatory activities were reasonably related to the purpose for the stop or, even if they were not, either did not lead to the production of the incriminating evidence that defendant sought to suppress or were justified on other grounds. We therefore hold that the trial court did not err in denying defendant's motion to suppress, and we affirm the decision of the Court of Appeals.
In reviewing the denial of a motion to suppress, we are bound by the trial court's findings of historical fact to the extent that those findings are supported by evidence in the record. State v. Stevens, 311 Or 119, 126, 806 P.2d 92 (1991). If the trial court did not make express findings, as is the case here, we presume that the trial court found facts that were consistent with its ultimate conclusion. Id. at 127. We observe that standard in stating the facts that follow. We then address the parties' legal arguments concerning the limitations imposed by Article I, section 9, and how those limitations apply to the facts.
On the evening of April 21, 2008, Officer Kris Malek of the Myrtle Creek Police Department saw a car cross over the yellow line that divided the north- and southbound lanes of traffic. Malek stopped the car and immediately recognized defendant, who was sitting in the driver's seat. Malek knew defendant from previous traffic stops and from interacting with him socially. Approximately two months prior to the traffic stop at issue in this case, Malek had heard rumors that defendant was dealing small amounts of marijuana around the city of Myrtle Creek.
When Malek informed defendant that he had stopped him for failure to maintain a lane, defendant responded that he had dropped his cell phone and had drifted into oncoming traffic when he reached down to retrieve it. Although Malek could have issued defendant a citation, he decided to give defendant a warning instead. Nevertheless, Malek asked for defendant's driver's license, registration, and proof of insurance. Defendant complied, and Malek called dispatch and requested records and warrants checks pursuant to his routine practice. Malek always detains drivers whom he has stopped for traffic violations until dispatch confirms that the driver in question has a valid license. Dispatch usually takes between four and 10 minutes to return the results of the checks.
Malek usually returns to his car and waits for dispatch to return the results of the records and warrants checks. In this case, however, because he had had so many friendly dealings with defendant in the past and did not feel that defendant was "a threat, " Malek "had no problem standing at [defendant's] vehicle while waiting for a return from dispatch." In addition, Malek had "wanted to have a conversation with [defendant] about what [Malek had] been hearing in the community." With that purpose in mind, Malek asked defendant if he would step out of his car. Defendant complied, leaving the driver's side door ajar. Malek told defendant that he had heard rumors that defendant was dealing small amounts of marijuana. Defendant denied that allegation. The conversation "progressed, " and Malek asked defendant for consent to search his car. Defendant refused and began to "yell" at Malek.
At that point, Deputy Clayton Ruble "came upon" the traffic stop, got out of his car, and approached the passenger side of defendant's car. Ruble informed Malek that he could smell "a pretty strong odor" of marijuana emanating from the partially-open window of defendant's car. Malek then stepped into the space created by the open driver's side door of the car, took "a big sniff, " and also smelled "what, through training and experience, [he] believe[d to be] marijuana coming from the vehicle." Malek contacted Probation Officer Hooly, accompanied by a drug-detection dog, to respond to the scene. While they waited, Malek and Ruble continued to question defendant. They asked him whether he had marijuana inside his car, and he responded that he had "approximately an eighth of an ounce." Officer Hooly then arrived, walked her dog around the car, and observed that the dog "hit on the vehicle, " indicating the presence of a controlled substance.
At that point, Malek believed that he had probable cause to search defendant's car. He reached inside the open passenger side window and retrieved a backpack that was sitting on the passenger seat. Inside, he found marijuana, cocaine, and various drug-related paraphernalia. Malek placed defendant under arrest. A short time later, Malek received a call from dispatch that defendant's drivers license was valid and that there were no outstanding warrants for his arrest. The entire stop, from its inception until Malek arrested defendant and received the return call from dispatch, lasted approximately 10 minutes. All of the actions that Malek and Ruble took occurred during the 10-minute period that the records and warrants checks were pending.
Defendant filed a motion to suppress all property seized pursuant to Malek's search of his vehicle, claiming that the stop's "intensity and duration" exceeded its legal basis. During the hearing on that motion, defendant argued that, although the officers had detained him for only 10 minutes, the police actions that occurred during that detention -- in particular, Malek's drug-related questioning, his requests that defendant exit his car and consent to search, his use of the drug-detection dog, and his eventual search of defendant's car -- constituted a criminal investigation that expanded the scope of the initially lawful stop beyond constitutional bounds. Without reasonable suspicion of an additional infraction or crime, defendant argued, an officer's authority is strictly limited to a reasonable investigation of the traffic infraction that initially prompted the stop.
The state responded that Malek was permitted to question defendant concerning matters that were unrelated to the stop, even if Malek had lacked reasonable suspicion to believe that defendant was engaged in criminal activity, as long as that questioning did not unreasonably prolong the stop's duration. The trial court denied defendant's motion without any explicit statement ...