Argued and Submitted December 18, 2012
[Copyrighted Material Omitted]
Lake County Circuit Court. 090059CR. Lane W. Simpson, Judge.
David A. Hill argued the cause and filed the brief for appellant.
Laura S. Anderson, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
DUNCAN, J. Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.
[268 Or.App. 140] DUNCAN, J.
In this criminal case, defendant appeals a judgment convicting him of unlawful delivery of marijuana, ORS 475.860(2) (Count 1), arguing that the trial court erred in denying his motion to suppress evidence because the evidence derived from a violation of his rights under Article I, section 9, of the Oregon Constitution. Defendant contends that the state trooper who discovered the evidence did so only after unlawfully stopping defendant and exploiting that unlawful stop to gain defendant's consent to a search of the trunk of his car. We conclude that defendant was stopped when the state trooper told him that he wanted to talk to him about a traffic violation that he had seen defendant commit. Because that stop was not supported by probable cause and the evidence at issue derived from the unlawful stop, we reverse and remand.
We begin with the facts, which we state consistently with the trial court's findings. On the evening of February 24, 2009, defendant drove through downtown Lakeview in a white car with California license plates. State Trooper Hargis was conducting a traffic stop there, but after defendant went by, Hargis made a U turn and came up behind defendant's car. Hargis followed defendant into the parking lot of a service station on Highway 395 one-and-one-half miles north of Lakeview. Hargis intended to buy a cup of coffee at the station. Defendant pulled up to the gas pumps at the station, and Hargis parked his patrol vehicle behind and to the right of defendant's car. Defendant got out of his car, put some garbage into a garbage can, and walked around the side of the gas station's convenience store toward the restroom. Hargis got out of his car and looked in the windows of defendant's car. He did not see anything that caught his attention. Then Hargis walked into the convenience store and bought a cup of coffee.
Hargis was still in the convenience store when defendant came into the store after using the restroom. Defendant bought an energy drink and paid for his gas. Hargis [268 Or.App. 141] approached defendant and told him that he wanted to talk to him about his failure to use a turn signal at a " Y" intersection between Lakeview and the gas station. Defendant told Hargis that he did signal, and Hargis told him that he had not signaled for 100 feet before the intersection. Then Hargis asked defendant where he was coming from, and defendant said that he had driven from Bend, where he lived, to Reno, Nevada, to visit his grandfather, who was ill, for the weekend and that he was returning to Bend. The car had California license plates because defendant had rented it for the trip. The conversation quickly turned to the topic of marijuana. At some point during the conversation, Hargis and defendant walked out of the convenience store side by side and stood on the sidewalk outside the store.
When he spoke with defendant, Hargis, who is a drug recognition expert, observed that defendant's eyes were bloodshot and watery, his speech was deliberate and slow, he repeated answers and questions, his pupils were dilated, and he had a " very relaxed demeanor." Hargis asked defendant whether he was on any medications, and defendant replied that he was not. Then Hargis asked defendant when he had last smoked marijuana. Defendant said that it had been more than a year since he smoked marijuana and that he did not smoke marijuana.
Based on the indicators listed above, Hargis believed that defendant was under the influence of marijuana. At the hearing, Hargis explained that the indicators showed that defendant had smoked marijuana recently--within 24 to 48 hours--but that marijuana
intoxication lasts only a few hours after the marijuana is smoked. Hargis believed that defendant might have marijuana for personal use in the car.
In addition to believing that defendant was under the influence of marijuana, Hargis believed that defendant was trafficking marijuana. That belief was based on the indicators of marijuana use listed above, the fact that defendant had rented a car for a short trip to Reno, defendant's implicit admission that he had used marijuana more than a year before, and Hargis's training, which indicated that marijuana traffickers are likely to use marijuana during their trafficking trips.
[268 Or.App. 142] Hargis asked defendant how much marijuana he had in the car, and defendant denied having marijuana. After defendant refused a request by Hargis to search the car for marijuana, Hargis told defendant that he was under investigation for DUII. He requested defendant's driver's license and rental agreement, and defendant consented to perform field sobriety tests. Rather than going forward with the field sobriety tests, Hargis sought to search defendant's car for drugs. After several requests, defendant consented to a search. During the search, Hargis found approximately half a pound of marijuana in the trunk of defendant's car. During a subsequent search of defendant, Hargis also found $3,923 in cash.
Hargis then checked defendant's pulse, which was within the normal range, and gave defendant two nonstandard field sobriety tests, a counting test and an alphabet test. Defendant passed those tests, and Hargis did not perform any others. Hargis believed that defendant ...