and Submitted January 9, 2018.
County Circuit Court 16CR01172 Martin E. Stone, Judge.
Montague, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Nani Apo, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: Defendant appeals a judgment of conviction for
unlawful possession of methamphetamine, ORS 475.894. During a
traffic stop, a law enforcement officer smelled marijuana on
defendant's person and began investigating her for
driving under the influence of intoxicants (DUII). The
officer asked defendant several questions, first about
marijuana use and then about marijuana possession. The
officer then found methamphetamine and a pipe during a
consent search. Before trial, defendant moved to suppress
that evidence on the ground that it was obtained during an
unlawful extension of the stop. The state argued that the
officer's conduct was reasonably related to the DUII
investigation. The trial court denied the motion, and
defendant appeals. Held: The trial court erred in
denying defendant's motion to suppress. The state failed
to identify a reasonable, circumstance-specific relationship
between the officer's request to search defendant and the
Or.App. 770] AOYAGI, J.
was stopped for a traffic violation while bicycling. During
the stop, the officer began investigating defendant for
driving under the influence of intoxicants (DUII),
specifically marijuana. The officer asked defendant a series
of questions, which ultimately led to the seizure of
methamphetamine and a pipe. Defendant was charged with
unlawful possession of methamphetamine, ORS 475.894. Before
trial, defendant moved to suppress the evidence on the ground
that it was obtained during an unlawful extension of the
stop. The state countered that the officer had reasonable
suspicion of DUII and that his questions were therefore
reasonable and did not unlawfully extend the stop. The trial
court denied the motion. Defendant was convicted. On appeal,
she assigns error to the denial of her motion to suppress.
For the reasons that follow, we conclude that the trial court
erred in denying defendant's motion to suppress and,
accordingly, reverse and remand.
review a trial court's denial of a motion to suppress for
legal error. State v. Ehly, 317 Or. 66, 75, 854 P.2d
421 (1993). We are bound by the trial court's factual
findings if they are supported by evidence in the record.
Id. If the trial court did not make an express
finding on a necessary fact, we presume that the court found
the facts in a manner consistent with its decision. State
v. Roesler, 235 Or.App. 547, 550, 234 P.3d 1004 (2010).
We state the facts accordingly.
October night, Deputy Stevens was on patrol when he saw
defendant, who was riding a bicycle, run a stop sign. Stevens
stopped defendant for failing to obey a traffic control
device, which is a traffic violation. Stevens immediately
smelled a "heavy odor of marijuana" coming from
defendant's person. Based on defendant having run a stop
sign and the odor of marijuana, Stevens suspected that
defendant was under the influence of intoxicants. He began to
investigate a possible DUII offense.
Or.App. 771] Stevens asked defendant for her identification
and at some point ran her name through dispatch. Stevens told
defendant that he could smell the marijuana on her and asked
when she had last smoked. Defendant replied that she had
smoked "[e]arlier in the day." Based on his
training and experience, Stevens did not consider that answer
consistent with the odor coming from her person. Stevens
asked defendant whether she had any marijuana on her. She
said that she did and handed him a small sealed plastic bag
of marijuana. In Stevens's experience from prior DUII and
drug-related cases, once he finds one drug-related item, he
is typically "able to locate additional items." He
also suspected that defendant had more marijuana on her
because of "the amount of marijuana that [he] was
smelling coming from her person." Stevens
"didn't believe, at that time, that that was all she
had on her," so he asked defendant for consent to search
consented to a search of her person and also, at some point,
to a search of at least one bag that she had with her.
Stevens found more marijuana and a Bluetooth headset case.
Stevens requested and obtained consent to open the headset
case and, inside it, found a glass pipe that he suspected
contained methamphetamine residue. Stevens asked defendant
"where her meth was." Defendant denied having any
methamphetamine on her. She then told Stevens that she was
trying to get home for a family dinner and was concerned
whether she was going to jail. Stevens told defendant that,
if she gave him her methamphetamine, he would not arrest her
but would just refer the matter to the district
attorney's office. Defendant removed a small plastic bag
of methamphetamine from her pocket and gave it to Stevens. At
that time, Stevens received another call, told defendant that
he would refer the matter, and departed. The stop had
lasted about 22 minutes.
state charged defendant with one count of unlawful possession
of methamphetamine, ORS 475.894. Defendant moved to suppress
the evidence, arguing that it was [295 Or.App. 772] obtained
during an unlawful extension of the stop in violation of
Article I, section 9, of the Oregon Constitution. The state
asserted that Stevens's questions were justified by
reasonable suspicion of DUII and, once he found the glass
pipe, by reasonable suspicion of possession of
methamphetamine. Defendant conceded that Stevens had
reasonable suspicion ...