and Submitted September 27, 2017
County Circuit Court C151351CR; Andrew Erwin, Judge.
Fujita Munsey, Deputy Public Defender, argued the cause for
appellant. With her on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Peenesh Shah, Assistant Attorney General, argued the cause
for respondent. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Ortega, Presiding Judge, and Garrett, Judge, and Powers,
Summary: Defendant challenges his conviction for seven counts
of various drug-related offenses. He assigns error to the
trial court's denial of his motion to suppress evidence
obtained during what he contends was an unlawful extension of
a traffic stop. Defendant concedes that he was lawfully
stopped for a noncriminal traffic violation. However,
defendant argues that the officer violated Article I, section
9, of the Oregon Constitution by calling his probation
officer rather than processing the citation because that call
was based on a notation on his record that was a
constitutionally insufficient basis to extend the stop.
According to defendant, because that call extended the stop,
the officer was able to obtain his consent to search his car
and discover incriminating evidence that was used against him
at trial. Held: The trial court did not err. The
Court of Appeals need not resolve defendant's arguments
under Article I, section 9, because they were predicated on
the assumption that the traffic stop was actually extended.
The trial court implicitly found that the stop was not
extended, and there was sufficient evidence to support that
Or.App. 694] ORTEGA, P. J.
challenges his conviction for unlawful delivery of heroin and
unlawful possession of heroin, meth-amphetamine, and
controlled substances, ORS 475.850; ORS 475.854; ORS 475.894;
ORS 475.752(3) and (3)(c). He assigns error to the trial
court's denial of his motion to suppress evidence
obtained during what he contends was an unlawful extension of
a traffic stop to call his probation officer. We conclude
that, because the call to defendant's probation officer
did not actually delay the processing of the traffic citation
at issue, the stop was not unlawfully extended, and the trial
court did not err in denying defendant's motion.
Accordingly, we affirm.
review the denial of a motion to suppress for legal error and
are bound by the trial court's express factual findings
if evidence in the record supports them. State v.
Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993).
Accordingly, we state the facts consistently with the trial
court's factual findings.
Haugen stopped defendant in Washington County for failing to
signal when changing lanes, a minor traffic offense. When
Haugen reached defendant's car, he noticed that defendant
and his passenger were nervous and pale, and that both had
sores on their arms consistent with "people who use
heroin." Haugen asked defendant for his license,
registration, and insurance information and then contacted
dispatch to run it through the law enforcement database
system, as is standard practice. Haugen testified that
dispatch performed a records check, which included a review
of defendant's driving status and a warrant inquiry, and
informed Haugen that defendant was on post-prison supervision
out of Deschutes County and that there was a note in his
record directing that" [a]ny law enforcement contact
with this offender, please call" probation officer Frank
Dietsch. Haugen had never seen such a notation before, but
proceeded to dial Dietsch while working on "paperwork
stuff" by filling out the citation. Dietsch answered and
told Haugen that defendant must consent to a search because
he was on post-prison supervision. Dietsch attempted to
enlist [289 Or.App. 695] Haugen to search the car on
Dietsch's behalf, but Haugen testified that he acted on
call between Haugen and Dietsch lasted less than five
minutes. After that call and while Haugen was still typing up
the citation in his car, Officer Andler spontaneously showed
up, and Haugen asked him to continue to process the ticket.
While he did so, Haugen approached defendant's car and
asked him if "he was in possession of any weapons, any
drugs, or any illegal documents, " and defendant said
no. Haugen then asked defendant to step out of the car and to
consent to a search. Defendant refused and, when asked why,
responded that he had a bottle of used syringes that he had
not yet disposed of. Haugen told defendant he did not care
about that and again asked for consent to search, which
defendant granted. A third officer arrived and assisted
Haugen in searching the car, where they found illegal drugs.
trial court made several factual findings relevant on appeal.
First, the court found that the entire encounter lasted 19
minutes. The court also found, based on Haugen's
testimony, that it would normally take about 15 minutes to
process a citation, and that to the extent that this stop
lasted slightly longer, that was reasonably attributable to
recent changes in the procedures for processing tickets.
Finally, the court found that Haugen continued to process the
citation even as he had the conversation with Dietsch, and
that the two things occurred "simultaneous [ly]."
appeal, defendant concedes that he was lawfully stopped for
failing to signal when changing lanes, but argues that Haugen
extended the traffic stop, resulting in an unlawful seizure.
According to defendant, the call to his probation officer was
not reasonably related to the traffic stop and was therefore
unlawful-that is, Haugen's questioning did not occur
during an unavoidable lull, nor was it justified by
reasonable suspicion to believe that his safety or the public
safety was threatened. Defendant asserts that, after
obtaining his driver's license, car registration, and
insurance information, Haugen had all the information to
complete the citation. According to defendant, the call to
Dietsch was not reasonably related because the note was [289
Or.App. 696] vague and, without more information, there was
no basis to call his probation officer instead of processing
the citation. Additionally, defendant asserts that Haugen
intentionally extended the stop in order to obtain his
consent to search. Defendant claims that the call to his
probation officer, even if it took at least five minutes,
allowed Andler to come to the scene and to take ...