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State v. Rosales

Court of Appeals of Oregon

May 16, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
MARESSA SIERRA BLAKE ROSALES, Defendant-Appellant.

          Argued and submitted September 6, 2016

          Coos County Circuit Court 14 CR0442 Michael J. Gillespie, Judge.

          Lindsey Burrows, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services. With her on the reply brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.

          David B. Thompson, 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 General.

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

          [291 Or.App. 763] Case Summary: Defendant appeals a judgment of conviction for unlawful possession of a controlled substance, ORS 475.752. The issue on appeal is whether the trial court erred when it denied defendant's motion to suppress evidence that police officers obtained during a traffic stop. Defendant argues that, although the traffic stop was lawful, she was unlawfully seized when an officer subsequently conducted a dog sniff that extended the stop. Defendant also contends that the trial court should have suppressed evidence found as a result of the dog sniff because police obtained it as a result of the unlawful seizure. Held: The trial court erred. Defendant was not unlawfully seized under Article I, section 9, of the Oregon Constitution. However, officers impermissibly extended the stop in violation of the Fourth Amendment of the United States Constitution when one officer stopped processing the citation in order to provide cover during a dog sniff.

         Reversed and remanded.

          [291 Or.App. 764] HADLOCK, J.

         Defendant appeals a judgment of conviction for unlawful possession of a controlled substance, ORS 475.752, which the court entered following defendant's conditional guilty plea. The issue on appeal is whether the trial court erred when it denied defendant's motion to suppress evidence that police officers obtained during a traffic stop. On appeal, defendant concedes that the vehicle she was riding in was lawfully stopped. However, defendant argues that she was unlawfully seized when an officer subsequently conducted a dog sniff that extended the stop. Defendant further contends that the trial court should have suppressed evidence found as a result of the dog sniff because police obtained it as a result of the unlawful seizure. We agree with defendant that the dog sniff extended the detention of defendant in violation of the Fourth Amendment to the United States Constitution. Accordingly, we reverse and remand.

         We state the facts consistently with the trial court's express findings and those implicit in its ruling, which the record supports. State v. Culley, 198 Or.App. 366, 374, 108 P.3d 1179 (2005). On the day in question, Coos Bay Officer Ereth was on patrol with Reserve Officer McGriff; they were accompanied by Buddy, a drug-detection dog. Defendant was a passenger in a car that Ereth stopped for traffic infractions. Ereth spoke with the driver and discovered that he did not have insurance. Ereth returned to his patrol car, gave McGriff the documents needed to issue a citation, and instructed McGriff to write the citation. As McGriff began writing the citation, Ereth took Buddy out of the car to conduct a dog sniff. While Ereth conducted the dog sniff, McGriff stopped writing the citation for about 30 seconds so he could, instead, provide cover to Ereth and Buddy.

         Ereth walked Buddy around the car, in which defendant remained seated. Buddy alerted when Ereth was near the passenger door, which led Ereth to believe that controlled substances were (or recently had been) in the car. Ereth asked the driver to step out of the car, patted him down, then had him sit on the curb. Ereth repeated that process with defendant. Aside from perhaps saying hello, that was the first time Ereth and defendant exchanged words. [291 Or.App. 765] Ereth then searched the car, found defendant's purse on the floorboard, and found controlled substances inside the purse.

         Defendant moved to suppress the evidence found in her purse, as well as any derivative evidence, arguing that it was the fruit of an unlawful seizure. In her written suppression motion, defendant asserted that an officer had detained her beyond "the scope of the initial stop without reasonable suspicion that a crime had been committed." Defendant cited both Article I, section 9, of the Oregon Constitution and the Fourth Amendment in support of that argument. Defendant elaborated on her argument at the suppression hearing, asserting both that the dog sniff itself "constituted a stop" and that it "extended the stop" that had already occurred. The trial court denied the suppression motion. It rejected defendant's argument that the dog sniff constituted a seizure of defendant, explaining that the sniff would not have led defendant to believe that she was not free to leave. And, although the court acknowledged that McGriff stopped processing the traffic citation for about 30 seconds when he covered Ereth during the dog sniff, it ruled that the delay was not "significant." Finally, the court concluded that Ereth had probable cause to search the car once the dog alerted. Accordingly, the court denied defendant's suppression motion. As noted, defendant executed a conditional guilty plea, reserving the right to challenge the court's denial of her suppression motion.

         On appeal, defendant first contends that the dog sniff itself constituted a seizure of her person that violated Article I, section 9, because it would have led defendant to believe that she was under investigation for a crime and, therefore, not free to leave. In response, the state argues that defendant was not subject to the type of coercion or restraint of liberty that can give rise to a seizure.[1]

         The parties' arguments implicate fundamental Article I, section 9, principles. Under Article I, section 9, only [291 Or.App. 766] some police-individual encounters constitute seizures that require justification to pass constitutional muster. State v. Backstrand,354 Or. 392, 398-99, 313 P.3d 1084 (2013). "What distinguishes a seizure (either a stop or an arrest) from a constitutionally insignificant police-citizen encounter 'is the imposition, either by physical force or through some show of authority, of ...


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