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State v. Aguirre-Lopez

Court of Appeals of Oregon

April 4, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
CESAR AGUIRRE-LOPEZ, Defendant-Appellant.

          Argued and submitted November 22, 2016.

          Douglas County Circuit Court 14CR1714FE; Ann Marie Simmons, Judge.

          Emily P. Seltzer, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Gregory A. Rios, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi, Judge. [*]

         Case Summary: Defendant appeals a judgment of conviction for felon in possession of a firearm, ORS 166.270. Defendant assigns error to the trial court's denial of his motion to suppress evidence discovered during a traffic stop, arguing that the officer unlawfully extended the traffic stop to question defendant about a different crime for which the officer lacked reasonable suspicion. In response, the state does not contend that any extension of the stop was justified by reasonable suspicion of a crime. Rather, it argues that the officer's questions did not unlawfully extend the traffic stop because they were reasonably related to that stop. Held: The trial court erred. The officer impermissibly extended the stop in violation of Article I, section 9, of the Oregon Constitution, because the officer's questions were not reasonably related to the traffic stop and temporally extended the duration of that stop.

         [291 Or.App. 79] HADLOCK, J.

         Defendant appeals a judgment of conviction for felon in possession of a firearm, ORS 166.270(1). Defendant executed a conditional no contest plea after the trial court denied his motion to suppress certain evidence that a law enforcement officer found after stopping the vehicle that defendant was driving for a traffic violation. On appeal, defendant contends that the trial court erred in denying the motion to suppress evidence because the officer discovered the evidence after unlawfully extending the traffic stop to question defendant about a different crime for which the officer lacked reasonable suspicion. The state argues that the officer's inquiry was reasonably related to the traffic stop itself and that, even if that line of questioning unlawfully extended the stop, we should affirm because the officer did not "exploit" the extension to obtain defendant's eventual consent to the search. We conclude that the officer unlawfully extended the stop and that the trial court erred in ruling otherwise. Moreover, we decline to affirm on the state's proffered "lack of exploitation" theory because the record could have developed differently had the state made that argument to the trial court. Accordingly, we reverse and remand.

         "We review the denial of a suppression motion for legal error and are bound by the trial court's findings of historical facts, both implicit and explicit, if the record includes constitutionally sufficient evidence to support those findings." State v. Campbell, 289 Or.App. 442, 444, 410 P.3d 1041 (2017). We state the facts below pursuant to that standard.

         While following defendant's vehicle, Myrtle Creek Police Officer Brewster noticed that the passenger-side brake light was out and stopped defendant. Brewster approached the vehicle and asked defendant for his driver's license, proof of insurance, and vehicle registration. Defendant did not have a driver's license and instead gave Brewster a Mexican identification card. He also provided a vehicle registration, which did not match the identification card. Defendant told Brewster that the vehicle belonged to his cousin, who loaned it to him to travel from Washington to California. Brewster did not promptly call defendant's information in to dispatch. [291 Or.App. 80] Instead, he asked an extensive series of questions about defendant's cousin, including his name, where he lived, and how he was going to get his car back. Defendant answered the questions, although (as the trial court later found), "there was some backing up and sort of re-determining of sort of what the situation was supposed to be, " perhaps because of some difficulties with interpretation. During that exchange, Brewster noticed that defendant's hands were shaking and his carotid artery was "pulsating, like pounding out, which told [Brewster] that his heart rate was very, very high to cause that." Brewster also noticed that the vehicle contained three cell phones, multiple energy drinks, and both women's and children's shoes. The combination of all those circumstances aroused Brewster's suspicion, apparently that defendant might be transporting "illegal products, " but he testified that he did not have reasonable suspicion that defendant had committed a crime.

         After engaging in that discussion about the car and defendant's cousin, Brewster asked defendant for his date of birth and then asked dispatch for a records check on defendant in Oregon, California, and Washington. While waiting for dispatch, Brewster asked defendant if he had any controlled substances, large amounts of "illegal currency, " or weapons in the vehicle. Defendant notified Brewster that there was a weapon in the trunk. Brewster, having not observed the weapon, asked to search the vehicle, and defendant consented. Ultimately, Brewster found a handgun in the vehicle's trunk. He subsequently learned that defendant was a felon and he arrested defendant.

         After defendant was charged, he moved to suppress the evidence found during the search of his vehicle. At the suppression hearing, defendant argued that the questions regarding his cousin were asked outside of any unavoidable lull and therefore unlawfully extended the traffic stop, that Brewster lacked reasonable suspicion of a crime that would otherwise justify extension of the stop, and that defendant's later consent to search was involuntary. The state argued that the questions related to defendant's cousin were reasonably related to the stop because Brewster had an "obligation to investigate everything during that traffic stop, " [291 Or.App. 81] including, under the circumstances, whether the vehicle that defendant was driving might have been stolen. Accordingly, the state argued, Brewster's questions did not unlawfully extend the stop. The state also argued that the search resulting in the discovery of the firearm was pursuant to defendant's voluntary consent. The state did not argue, however, that Brewster did not exploit any preceding unlawful extension of the stop to obtain defendant's consent to search.

         The trial court denied the suppression motion on the grounds that the questions related to defendant's cousin were reasonably related to the stop and therefore did not unlawfully extend it, that the questions regarding the weapon were asked during a later unavoidable lull in the stop created after Brewster called defendant's information in to dispatch, and that Brewster had probable cause to search the vehicle for the weapon once dispatch confirmed the felony conviction. As noted, after the trial court denied defendant's suppression motion, he entered a conditional no contest plea and was convicted of felon in possession of a firearm.

         On appeal, defendant argues that the trial court erred in denying the suppression motion because Brewster unlawfully extended the traffic stop when he began questioning defendant about the car's ownership instead of citing defendant for the traffic violation or investigating the offense of failure to carry or present a license. Defendant asserts that the extension of the stop violated his rights under Article I, section 9, of the Oregon Constitution because Brewster's questions "were not reasonably related to the traffic stop or justified by reasonable suspicion of a crime." Anticipating a possible "reasonable suspicion" argument from the state, defendant also argues that defendant's nervous demeanor, his lack of a driver's license, and the fact that the vehicle was registered to another person, either individually or combined, are not enough to support reasonable suspicion "of a crime other than failure to carry and present a driver's license." Further, defendant argues that we should not consider whether defendant's eventual consent to search attenuated the effect of what he contends was Brewster's earlier unlawful extension of the stop ...


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