Submitted January 30, 2014
Marion County Circuit Court. 11C43232. John B. Wilson, Senior Judge.
Peter Gartlan, Chief Defender, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Egan, Judge, and De Muniz, Senior Judge.
[267 Or.App. 383] EGAN, J.
Defendant was driving a car when the police stopped him for a traffic infraction. In the course of that stop, the officers came to believe that defendant was under the influence of a controlled substance. The officers questioned defendant and his passenger about controlled-substance use and requested that another officer bring a drug-detection dog to the scene to perform a sniff of the car. The dog alerted to the car; the officers then searched it and discovered heroin and related paraphernalia. In this appeal from the ensuing judgment of conviction for delivery of a controlled substance, defendant contends that the trial court erred in denying his pretrial motion to suppress that evidence. He argues that, under State v. Rodgers/Kirkeby, 347 Or. 610, 227 P.3d 695 (2010), the officers unlawfully extended the traffic stop by commencing a drug investigation and that the extension of the stop was not supported by a reasonable suspicion of criminal activity. For the reasons below, we conclude that the trial court correctly denied defendant's motion to suppress the evidence obtained from the beginning of the stop to the point at which the officers deployed the dog. However, we agree with defendant that the deployment of the drug-detection dog unlawfully prolonged the stop, was not supported by an objectively reasonable suspicion that drugs were in the car, and that suppression of the evidence obtained as a result of the dog's deployment was required in consequence.
We review the trial court's denial of the motion to suppress for legal error. State v. Roesler, 235 Or.App. 547, 234 P.3d 1004 (2010). The trial court in this case did not make any explicit factual findings; therefore, where there is evidence from which particular facts could be decided in more than one way, we will presume that the court found the facts in a manner consistent with its legal conclusion so long as there is evidence in the record that would support those findings. State v. Juarez-Godinez, 326 Or. 1, 7, 942 P.2d 772 (1997).
Defendant was driving in front of a police cruiser when he made a turn without first signaling for at least 100 feet as required by ORS 811.335(1)(b). Salem Police Officer Gould was driving the police cruiser. Officer Horn was with [267 Or.App. 384] him. They signaled for defendant to stop. Defendant turned into the parking lot of a grocery store; he drove very slowly for approximately 50 yards, passing several open parking spaces before turning into one and stopping. There was one
passenger in defendant's vehicle. It was 1:12 p.m. Gould approached to speak with defendant, and Horn approached to speak with the passenger. Gould asked for defendant's license, registration, and proof of insurance. In return, defendant provided him with a student identification card and stated that his license was suspended. Defendant also explained that the car belonged to a friend. Gould asked defendant questions about who owned the car, how defendant had come to be driving it, and where defendant lived. Throughout their conversation, Gould noticed that defendant appeared " very nervous" and that he was shaking. Gould also took note of defendant's " very slow" responses to his questions, which were delivered in a " monotone" voice and only after a " noticeable delay." Gould knew, from his experience and training, that those symptoms " oftentimes" resulted from controlled-substance use, and he began to look for other such symptoms. In that vein, he observed that defendant's pupils were " overly constricted," given the light of that day; he also observed needle marks on the inside of defendant's right arm. Gould knew, from experience and training, that hypodermic needle injections often left such marks. Gould testified that, within a minute of their initial contact, he believed that defendant was " likely under the influence of, for example, a narcotic analgesic."
Gould asked defendant what the needle marks were from; defendant replied that he had incurred them from drug use about a year before, but that he had not recently been using. Gould did not believe that explanation. As he later explained at the hearing on the motion to suppress:
" The marks appeared to be fairly fresh--recent that--I mean, and you can tell the difference between a recent bruise on somebody's arm as opposed to a scar, or a permanent mark that--of something that would have happened a year before. So it was plainly obvious to me, even though I'm not a doctor * * * of those that I've seen in the past, that it was very recent that those--those had been--been, you know--needles had been used on the arm."
[267 Or.App. 385] Gould also explained that he believed that defendant had controlled substances in the vehicle:
" Well, in my mind, without questioning him, there was either something going on with the use, or--or sales of controlled substances. Oftentimes, they go hand-in-hand. Based on my observations on the initial--the reaction of the initial vehicle to it going at a very delayed place through the parking lot, contacting the driver, my physical observations of him, noticing track marks, his admitted use of--of narcotics, whether they were--you know, even though I saw the signs of recent use, but he said that he'd used a year ago, I believe that there was * * * at the very least, use of * * * controlled substances going on in--likely in the vehicle."
Gould continued to question defendant; defendant provided Gould with what Gould considered " vague" answers. Gould asked why he had turned into the parking lot; defendant said that he had done so in order to pick up a friend. Gould asked why he was meeting the friend; defendant paused, looked around, and said, " To go to the bank." Gould asked why he was going to the bank; after another pause, defendant replied that the friend owed him $40. Gould asked what the debt was for; defendant said that it was from a long time ago. Gould later testified that he asked those questions as part of a " drug investigation."
While Gould was talking with defendant, Horn was talking to defendant's passenger, Foster. Foster told Horn that they had arrived in the parking lot to meet a friend and take the friend to " a patio job." After Horn informed Gould of that inconsistency with defendant's story, Gould returned to his cruiser in order to run routine " wants checks," to investigate the status of defendant's driving privileges, and to fill out citations for the vehicular infractions that he had observed. Gould testified that it took him
two minutes to run the background-type checks and three to four minutes to complete each of two different citations for the vehicular infractions.
[267 Or.App. 386] During the time that Gould was either talking to defendant or attending to the vehicular-infraction-related work in his cruiser, Horn requested that another officer, Miller, bring a drug-detection dog to the scene to perform a sniff of defendant's car. Horn made that request without asking Gould. The reason that Horn requested the dog owed to " suspicions" that he had developed while talking with the passenger, Foster. Horn later summarized those suspicions, stating that he recognized Foster from some sort of previous drug investigation (he also learned that Foster had recently been arrested on a " heroin charge" ); Foster's eyes were red and bloodshot; he was talking slowly and repeating himself " over, and over, and over" ; he kept putting his hand underneath his thigh, in what Horn perceived as an attempt to hide something from Horn; and he apparently did not want to put his feet on the coat that was resting on the floorboard beneath him. Horn believed that Foster was " probably" under the influence of a controlled substance. At the suppression hearing, the prosecutor asked Horn, " [D]o you have any experience with people showing signs such as those, and then having with them some kind of ingestion paraphernalia, or further possessing other controlled substances?" Without further elaboration, Horn answered, " Absolutely. Absolutely." 
Officer Miller arrived on the scene with the drug-detection dog at 1:30 p.m., 10 minutes after he had been called and 18 minutes from the stop's inception. Gould testified that he did not remember whether he had finished writing out his citations by that point, but that he had not yet given them to defendant. Miller deployed his dog around the car, but believed that the presence of defendant and Foster in the car was affecting the dog's ability to perform its task. Miller told Gould as much, and asked him if he would get the occupants out of the vehicle. Gould asked defendant and Foster to step out of the car. Once defendant was out of the car, Gould patted him down to search for any weapons that might pose a threat to the officers' safety. On a second pass, the dog " alerted" to the car, which indicated to the officers [267 Or.App. 387] that controlled substances were present. Gould testified that he then believed that he had probable cause to think that there was a controlled substance in the vehicle. He placed defendant in the back of his cruiser, stating that defendant was, at that point, under arrest for a " misdemeanor crime." The officers then searched the car. One of them ...