Submitted: December 20, 2013.
Sherman County Circuit Court 100025CR. John A. Wolf, Judge.
Peter Gartlan, Chief Defender, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Justice J. Rillera, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and DeVore, Judge, and De Muniz, Senior Judge.
[262 Or.App. 125] DEVORE, J.
Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894. She assigns error to the trial court's denial of her motion to suppress, arguing that she was subject to an unlawfully extended traffic stop. In reviewing a trial court's denial of a motion to suppress evidence, we are bound by the trial court's explicit and implicit findings, if there is sufficient evidence in the record. State v. Ehly, 317 Ore. 66, 74-75, 854 P.2d 421 (1993). We review as a matter of law the trial court's application of legal principles to those facts. Id. We affirm.
We summarize the facts consistently with those standards. An officer stopped defendant for speeding. At some point during the stop, either at the outset or later, the officer asked defendant if she knew the whereabouts of " Natalie Green," a wanted person known to defendant but irrelevant to the traffic stop. Defendant replied that she did not know Green's whereabouts. When the officer asked defendant for her driver's license, defendant reached into her purse and pulled out a small metal tin, resembling a business card holder. She opened the tin to remove her license. The officer saw a small plastic baggie with brown residue that was sitting on top of her license in the tin. From his experience, the officer believed that that the residue was methamphetamine. Defendant brushed the baggie onto the floorboard. The officer asked defendant for the baggie, but she claimed that she could not find it. He asked defendant to get out of her car, and he retrieved the baggie from the floorboard. Residue in the baggie tested positive for methamphetamine. Defendant was charged with unlawful possession of methamphetamine.
Defendant moved to suppress the evidence against her. At the suppression hearing, defendant argued that the officer discovered the evidence as a result of an unlawfully extended traffic stop, in violation of Article I, section 9, of the Oregon Constitution. Defendant testified that the officer asked immediately about Green when he reached her car window. She argued that the questioning about Green [262 Or.App. 126] extended the traffic stop beyond the time necessary to complete it. See State v. Gomes, 236 Or.App. 364, 371, 236 P.3d 841 (2010) (describing an unlawful extension of a stop). In his testimony, the officer recalled asking defendant about Green. He was unsure about the relative timing of his question, but he thought that he had asked for the license first. The trial court chose not to resolve the factual dispute. The trial court found that the relative sequence of questions did not matter because the officer's request for the license would have produced the evidence anyway. The trial court denied defendant's motion, and defendant entered a conditional guilty plea pursuant to ORS 135.335(3).
On appeal, defendant reiterates her challenge based on the purportedly unlawful extension of the stop. We reject that challenge because, even if we were to assume that the officer asked defendant about Green before requesting her license--and, thus, effected an unlawful extension of the stop--the discovery of the methamphetamine was not sufficiently causally related to that alleged
illegality to require suppression. Assuming arguendo defendant's recollection of the facts, the admissibility of evidence, arguably resulting from an unlawfully extended stop, turns on a sequence of questions upon which the burden of proof shifts between defendant and the state. See State v. Hall, 339 Ore. 7, 25, 115 P.3d 908 (2005) (describing sequential questions and respective burdens).
[262 Or.App. 127] The analysis begins with the principle that an officer may not extend the duration of a traffic stop by interposing a series of unrelated questions or actions constituting another investigation, without reasonable suspicion of another offense. State v. Rodgers/Kirkeby, 347 Ore. 610, 626-28, 227 P.3d 695 (2010). During a lawful stop, officers may nonetheless make an inquiry into unrelated matters during an " unavoidable lull" in the investigation. State v. Dennis, 250 Or.App. 732, 737, 282 P.3d 955 (2012) (citing Gomes, 236 Or.App. at 371). An unavoidable lull occurs in a period of time in which the officer cannot proceed with the investigation, such as, while awaiting record check results or while awaiting the driver's identification. State v. Nims, 248 Or.App. 708, 713, 274 P.3d 235, rev den, 352 Ore. 378, 290 P.3d 814 (2012). If an officer has initiated an unrelated inquiry, then it is the state's burden to prove that an officer did so during an unavoidable lull. Dennis, 250 Or.App. at 737; State v. Berry, 232 Or.App. 612, 616-17, 222 P.3d 758 (2009), rev dismissed, 348 Ore. 71, 228 P.3d 582 (2010). Even if the state fails to prove permissible timing, however, suppression does not necessarily follow. See Hall, 339 Ore. at 25. A new question arises and, as to it, the burden shifts. Defendant must prove the ...