Argued and Submitted January 30, 2014
Union County Circuit Court F17603. Warner V. Wasley, Senior Judge.
Ingrid A. MacFarlane, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Matthew Preusch, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rebecca M. Johansen, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Egan, Judge, and De Muniz, Senior Judge.
[272 Or.App. 193] ARMSTRONG, P. J.
Defendant appeals a judgment of conviction for one count of unlawful possession of methamphetamine, ORS 475.894, assigning error to the trial court's denial of his motion
to suppress evidence discovered during a search of his car following a traffic stop. Defendant argues that the police officer extended defendant's initial, lawful detention of defendant for a traffic offense without reasonable suspicion to do that and, therefore, the evidence obtained during the search must be suppressed. The state concedes that the police unlawfully extended the traffic stop; however, it asserts that we should affirm the trial court under the " right for the wrong reason" doctrine, see Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 659-60, 20 P.3d 180 (2001) (setting out conditions under which a reviewing court may, as a matter of discretion, affirm the ruling of a lower court on an alternative basis), because defendant was advised of his right to refuse consent and testified that he understood that right. In the state's view, " [t]hat mitigating circumstance was sufficient to attenuate defendant's consent from the unlawful stop," rendering the evidence nonetheless admissible. Defendant responds that we cannot affirm on that alternative basis because, among other reasons, the record could have developed differently had the attenuation issue been raised in the trial court. We agree with defendant; accordingly, we reverse and remand.
We review the trial court's denial of a suppression motion for legal error and are bound by the trial court's findings of historical facts that are supported by evidence in the record. State v. Bailey, 356 Or. 486, 489, 338 P.3d 702 (2014). With one exception noted below, the pertinent facts in this case are undisputed.
Oregon State Police Trooper Macy stopped defendant for speeding at 7:45 a.m. on a September morning. As he approached the driver's side of defendant's car, he noticed [272 Or.App. 194] that defendant was wearing a long-sleeved jacket or sweater that was zipped up to his chin, which seemed unusual to Macy because it was a hot morning. Macy thought it could have been " to cover up any sort of scars, marks, tattoos, anything like that on his arms." He also noticed that defendant was " very nervous." Macy asked defendant for his driver license, registration, and insurance, and, when defendant handed them to the officer, Macy testified that defendant was shaking visibly and displayed " facial twitches," which Macy recognized as a sign of stimulant use. Macy asked defendant why he was so nervous; defendant responded that " [h]e doesn't like the presence of police officers." Macy also asked defendant if he had any weapons or marijuana in the car; defendant said " no" to both questions. Macy then asked if he had any methamphetamine in the car, and defendant looked away and said, " not that he knew of." Because of defendant's change in demeanor when asked about methamphetamine, Macy thought there might be methamphetamine in the car.
Macy then went back to his patrol car and contacted dispatch. Because of defendant's degree of nervousness and answer to the question about methamphetamine, Macy, in addition to his normal request for checks and warrants, also asked the dispatcher to check whether defendant had any drug-related offenses in his criminal history. The dispatcher informed Macy that defendant had a prior drug conviction. Macy returned to defendant's car, told him that he thought defendant was in possession of methamphetamine, and asked defendant for consent to search the car. He gave defendant a consent form that stated, among other things, " You have the right to refuse to consent to a search." Macy asked defendant to read the form and whether he understood the form. According to Macy, defendant said that he did and agreed to the search, but he asked Macy to " hurry up" because he needed to get to work and was late. Defendant's account differs. He testified that he had initially refused consent because he was late for work but had changed his mind ...