State v. McBride

                                       292

 On remand from the Oregon Supreme Court, State v. McBride, 

, 

 (2020); reversed and remanded April 1, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     TERRI LYNN McBRIDE,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       16CR20012; A163302
                                   

    On remand from the Supreme Court, defendant renews her argument that
the trial court erred in denying her motion to suppress evidence obtained during
a warrantless search of her car. Specifically, she contends that she was unlawfully seized under Article I, section 9, of the Oregon Constitution when, during
a traffic stop, an officer asked defendant if she had drugs in her car. Defendant
argues that that question was unrelated to the purpose of the traffic stop, thus
resulting in an unlawful seizure. Held: The trial court erred in denying defendant’s motion to suppress. Because the officer’s inquiry regarding drugs was not
reasonably related to the purpose of the traffic stop and did not have an independent constitutional justification, it violated the subject-matter limitation that
Article I, section 9, imposes on investigative inquiries during an ongoing seizure.
    Reversed and remanded.



    Gregory F. Silver, Judge.
   Matthew Blythe, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Leigh A. Salmon, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
    TOOKEY, J.
    Reversed and remanded.
Cite as 

 (2020)                                                293

          TOOKEY, J.
         This case is on remand to us from the Supreme
Court, which vacated our decision in State v. McBride, 

, 

 (2019), vac’d and rem’d, 

,

 (2020) (McBride I), in light of State v. Arreola-Botello, 

, 

 (2019).
          In McBride I, we concluded that the trial court did
not err in denying defendant’s motion to suppress, because
an officer’s question to defendant regarding whether she had
any drugs in her car took place during an “unavoidable lull”
in a traffic stop. 

. That is, in McBride I, we
concluded that defendant’s rights under Article I, section 9,
of the Oregon Constitution, were not violated, because the
officer’s inquiry concerning drugs did not extend the duration of the traffic stop.1 

; see also Arreola-Botello,

 n 2 (explaining that “the Court of Appeals has
held that, during an ‘unavoidable lull,’ an officer may ask
unrelated questions during a traffic stop if those questions
do not extend the duration of the stop”).
          After we decided McBride I, the Supreme Court
issued Arreola-Botello, in which it rejected the “unavoidable
lull” rule, and concluded that, “for the purposes of Article I,
section 9, all investigative activities, including investigative inquiries, conducted during a traffic stop are part of
an ongoing seizure and are subject to both subject-matter
and durational limitations.” Arreola-Botello, 

.
Accordingly, “an officer is limited to investigatory inquiries
that are reasonably related to the purpose of the traffic stop
or that have an independent constitutional justification” and
an “ ‘unavoidable lull’ does not create an opportunity for an
officer to ask unrelated questions, unless the officer can justify the inquiry on other grounds.” 

        On remand from the Supreme Court, the state
concedes that, “under the new rule of law announced in
   1
     Article I, section 9, provides:
       “No law shall violate the right of the people to be secure in their persons,
   houses, papers, and effects, against unreasonable search, or seizure; and no
   warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or
   thing to be seized.”
294                                           State v. McBride

[Arreola-Botello], reversal is required in this case.” For the
reasons that follow, we accept the state’s concession, and conclude that, in light of Arreola-Botello, the trial court erred in
denying defendant’s motion to suppress. Consequently, we
reverse and remand.
         “We review a trial court’s denial of a motion to suppress for legal error.” State v. Rondeau, 

,

 (2019) (citing State v. Ehly, 

, 

 (1993)). In this case, the facts dispositive to defendant’s
appeal, which are set out more fulsomely in McBride I, are
undisputed.
         Deputy O’Donnell stopped defendant’s car after
he saw defendant make an unsignaled turn. O’Donnell
approached defendant’s car, explained to her why he had
pulled her over, and asked her for her driver’s license,
which she provided. After obtaining defendant’s driver’s
license, O’Donnell radioed dispatch to request a records
check. Because the dispatcher was working on other tasks,
O’Donnell had to wait for his turn to conduct the records
check. While waiting for his turn, O’Donnell asked defendant whether she had any drugs in her car. Defendant
admitted that she had a small amount of methamphetamine
in her purse. O’Donnell advised defendant of her Miranda
rights and arrested her. O’Donnell then received defendant’s consent to search her vehicle, searched her vehicle,
and discovered a crystal-like substance that tested positive
for methamphetamine.
         Defendant was charged with one count of unlawful
possession of methamphetamine, ORS 475.894. Prior to her
trial, she moved to suppress all of the evidence obtained as
a result of the traffic stop. The trial court denied defendant’s
motion to suppress, concluding that O’Donnell’s inquiry of
defendant regarding drugs took place during an “unavoidable lull” in the traffic stop.
         As noted above, in McBride I, we concluded that the
trial court did not err in denying defendant’s motion to suppress, because O’Donnell’s question to defendant regarding
whether she had any drugs in her car took place during an
“unavoidable lull” in the traffic stop. 

. Also,
Cite as 

 (2020)                              295

as noted above, after our decision in McBride I, the Supreme
Court issued Arreola-Botello, which rejected the “unavoidable lull” rule. Arreola-Botello, 

.

          In Arreola-Botello, an officer stopped the defendant
for failing to use a turn signal, and then inquired about the
presence of guns or controlled substances and requested consent to search the defendant’s vehicle. 

. The court
held that because the officer’s inquiries were not “reasonably
related” to the investigation of the infraction that led to the
traffic stop, and did not have an independent constitutional
justification, the questioning and request to search the vehicle violated the subject-matter limitation that Article I, section 9, imposes on investigative inquiries during an ongoing
seizure. 

. Accordingly, the Supreme Court concluded that the defendant was unlawfully seized in violation
of Article I, section 9, because the officer’s questioning and
request to search the defendant’s vehicle was a violation of
Article I, section 9, protections against unreasonable seizure and that the evidence should have been suppressed.

.

          In this case, O’Donnell had probable cause to believe
that defendant had committed a traffic infraction when
she failed to signal a turn and, therefore, was permitted
to stop her to investigate that infraction. But, like the officer in Arreola-Botello, O’Donnell asked a question that was
not reasonably related to that investigation—i.e., whether
defendant had drugs in her car. If there were evidence that,
during the stop, O’Donnell “had learned facts giving rise
to reasonable suspicion that defendant had engaged or was
about to engage in criminal conduct, an expanded investigation could have been justified,” 

, but in this case,
there is no such evidence. At the time that O’Donnell asked
whether defendant had drugs in her car, he did not have “any
particularized [reasonable] suspicion that defendant had
… controlled substances … in [her] vehicle.” 

 Because
O’Donnell’s inquiry regarding drugs was not reasonably
related to the purpose of the traffic stop, and did not have
an independent constitutional justification, it violated the
subject-matter limitation that Article I, section 9, imposes
on investigative inquiries during an ongoing seizure.
296                                                          State v. McBride

         Further, we conclude the evidence obtained as a
result of O’Donnell’s unlawful question to defendant and
obtained as a result of the search of defendant’s vehicle
should be suppressed because it was the product of an unconstitutional act. See 

 (recognizing that generally “evidence
will be suppressed if the evidence was the product of an
unconstitutional act”).2
           Reversed and remanded.




    2
       We note that O’Donnell, at the time of his inquiry to defendant, and the
trial court, at the time of its denial of defendant’s motion to suppress, did not have
the benefit of the Supreme Court’s decision in Arreola-Botello.