and submitted February 9, 2016
Deschutes County Circuit Court 13FE0613 Alta Jean Brady,
Krohn, Deputy Public Defender, argued the cause for
appellant. With him on the brief was Peter Gartlan, Chief
Defender, Offce of Public Defense Services.
Buehler, Assistant Attorney General, argued the cause for
respondent. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Paul L. Smith, Deputy Solicitor
Tookey, Presiding Judge, and Egan, Judge, and Sercombe,
appeals a conviction for unlawful possession of
methamphetamine, ORS 475.894. Defendant assigns error to the
trial court's denial of his motion to suppress evidence
discovered following a traffic stop. Defendant argues that
the stop was unlawfully extended because it did not occur
during an "unavoidable lull" in the investigation
of the traffic violation, nor was it justified by reasonable
suspicion of criminal conduct.
request for consent to search defendant's person did not
take place during an unavoidable lull in the traffic stop,
and the officers' belief that defendant possessed a
controlled substance was not objectively reasonable under the
totality of the circumstances, therefore, the request to
search defendant's person was not justified by reasonable
Or. 293] SERCOMBE, S. J.
appeals a judgment of conviction for unlawful possession of
methamphetamine, ORS 475.894, entered after a conditional
guilty plea. Defendant assigns error to the trial court's
denial of his motion to suppress evidence discovered
following a traffic stop. He contends that the traffic stop
was extended by a request to search his person and that the
extension was unlawful because it did not occur during an
"unavoidable lull" in the investigation of the
traffic violation, nor was it justified by reasonable
suspicion of criminal conduct. We agree with defendant's
contentions and, therefore, reverse and remand.
was indicted on one count of unlawful possession of
methamphetamine, ORS 475.894. Before trial, defendant filed a
motion to suppress the evidence found on his person and all
statements he made during and after the search of his person.
After an evidentiary hearing, the trial court denied the
motion. In reviewing that determination for legal error, we
are bound by the trial court's factual findings if there
is constitutionally sufficient evidence in the record to
support them. State v. Maciel-Figueroa, 361 Or. 163,
165-66, 389 P.3d 1121 (2017). "When the trial court did
not make express findings and there is evidence from which
the trial court could have found a fact in more than one way,
we will presume that the trial court decided the facts
consistently with the trial court's ultimate
conclusion." Id. at 166. We state the facts in
accordance with those standards.
Emerson and Smith were on patrol together. Emerson saw a
pickup truck that he recognized from a previous stop in which
he had arrested the owner, Curtis, for possession of
methamphetamine. Emerson knew that Curtis had a suspended
driver's license. Smith noticed that the pickup was
speeding, and the officers initiated a traffic stop.
approached the passenger side window of the pickup; Curtis
was in the passenger seat. Smith approached the driver side
window and spoke to defendant, who was the driver. Defendant
was cooperative. He admitted that he was speeding and
provided his driver's license. Smith asked for the
vehicle's registration and insurance [287 Or. 294]
information, to which Curtis replied that the pickup was his,
and began looking for the documents. Curtis handed Smith the
registration, which showed that he was the registered owner,
and he continued to look in the glove box for the insurance
information. Emerson testified that he always asks for
license, registration, and proof of insurance for every
traffic stop and agreed that gathering insurance information
is part of "routine traffic ticket processing."
Curtis was looking for proof of insurance, Smith asked
defendant whether there was anything illegal in the pickup.
Defendant became nervous, looked away, acted like he did not
hear the question, and did not respond. Defendant went from
making eye contact with Smith to almost solely staring at the
glove compartment that Curtis was looking through. Smith
asked defendant a second time, and he did not respond. Smith
continued to ask the question, and defendant eventually said
that the pickup did not belong to him and indicated that
Smith should ask Curtis.
testified that defendant's "demeanor changed
immediately" and "drastically" after Smith
asked whether there was anything illegal in the vehicle. He
"[Smith] asked him a second time if there was anything
illegal in the vehicle, and he again didn't respond. And
it was very clear he could understand what she was asking.
So, for me, *** watching that and with a substantial
experience in, in drug detection, I know that ...