638
Argued and submitted March 26, 2019, reversed and remanded April 22, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
JASON LEIGH SHERRIFF,
Defendant-Appellant.
Washington County Circuit Court
17CR20470; A165345
465 P3d 288
Defendant was driving in a car with his friend, Mitchell, when he was pulled
over and arrested on an outstanding warrant. Mitchell was going to drive the car
away, but, before she could do so, a deputy cited her for a cracked windshield while
another deputy walked a drug-sniffing dog around the car. The dog alerted, leading the police to find methamphetamine and a gun in defendant’s backpack in the
back seat of the car. When the police asked defendant about the gun and drugs,
defendant disclaimed any ownership of the contents of the car. At trial, defendant
moved to suppress the gun and drugs. The trial court denied his motion, reasoning that defendant abandoned his constitutionally protected possessory interest
in the car and its contents when he disclaimed his connection to the contents of
the car. Defendant was convicted of commercial drug offenses and one count of
felon in possession of a firearm. On appeal, he contends, among other things, that
the officers unlawfully seized the car and its contents and that that unlawful
seizure came before any disclaimer of his possessory interest in the car and its
contents. Held: The trial court erred in denying defendant’s motion to suppress.
The dog sniff resulted in a warrantless seizure of the car. Because there was no
plausible basis for concluding that the K-9 investigation was reasonably related
to Mitchell’s citation, and because the state did not demonstrate that any other
exception to the warrant requirement applied, the seizure of the car violated
Article I, section 9, of the Oregon Constitution. See State v. Arreola-Botello, 365
Or 695, 712-13,
451 P3d 939 (2019).
Reversed and remanded.
Oscar Garcia, Judge.
Rond Chananudech, 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.
Jennifer S. Lloyd, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 303 Or App 638 (2020) 639
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
LAGESEN, P. J.
Reversed and remanded.
640 State v. Sherriff
LAGESEN, P. J.
Defendant appeals a judgment of conviction for one
count of delivery of methamphetamine—commercial drug
offense, ORS 475.890(2); one count of possession of methamphetamine—commercial drug offense, ORS 475.894; and
one count of felon in possession of a firearm, ORS 166.270(1).
Officers found the drugs and gun in defendant’s backpack
after they searched the car in which defendant and his
friend, Mitchell, had been riding at the time of defendant’s
arrest on an outstanding warrant. Defendant assigns error
to (1) the trial court’s denial of his motion to suppress evidence of the drugs and gun; (2) the trial court’s pretrial
ruling that, if defendant introduced certain statements by
Mitchell implicating herself in the drug crimes, then, under
OEC 403 and the so-called “rule of completeness,” the state
would be permitted to introduce Mitchell’s statements implicating both defendant and herself; and (3) the trial court’s
instruction to the jury that it could return a guilty verdict
upon the agreement of at least 10 jurors. We conclude that
the trial court erred in denying the motion to suppress and
therefore reverse and remand. That conclusion obviates
the need for us to address defendant’s other assignments
of error because those issues may be litigated differently on
remand.
Our review of the trial court’s denial of a defendant’s
motion to suppress is, in general, “for legal error, accepting
the facts as found by the trial court, so long as there is constitutionally sufficient evidence in the record to support the
findings.” State v. Jones, 286 Or App 562, 564,
401 P3d 271
(2017).
This case adds a wrinkle to our standard of our
review. The manner in which the trial court resolved the
motion to suppress meant that the court did not need to
make, and did not in fact make, factual findings pertinent
to certain issues raised by the motion to suppress and the
parties’ arguments on appeal. We therefore cannot presume
that the court made a particular factual finding, to the
extent that particular finding was not one that was necessary to the court’s decision. Pereida-Alba v. Coursey, 356 Or
654, 670-72,
342 P3d 70 (2015).
Cite as
303 Or App 638 (2020) 641
In those instances—where the court did not make
certain findings and we must determine whether a remand
is in order for the court to make those findings—we view
the record in the light most favorable to the state and articulate the facts in accordance with that favorable view. We
take that approach to evaluate whether applicable constitutional standards would require the granting of defendant’s
motion to suppress even if all yet-unresolved conflicts in the
evidence were to be resolved in the state’s favor. If so, then
defendant would be entitled to have the motion to suppress
granted, notwithstanding the trial court’s failure to reach
all potentially dispositive factual issues. See id. (explaining that a remand to address unresolved material factual
disputes is not necessary if the party with the burden of
production did not meet that burden). If not, then any error
by the trial court would require a remand to address the
factual issues that necessarily must be resolved to dispose
of the motion to suppress.
Id.
Keeping those standards in mind, the historical
and procedural facts relevant to defendant’s challenge to the
denial of his motion to suppress are as follows.
Deputy Maller was on the job with his K-9 partner,
Taz. They received a call from then-Deputy (now Corporal)
Davis that defendant had gotten into a 1994 Honda Accord
with Washington plates and driven away. Maller was familiar with defendant and knew he had a warrant out for his
arrest on a misdemeanor. So Maller tracked down the car,
radioed the Hillsboro Police Department for assistance, and
pulled defendant over into a church parking lot after Officer
Duggan of the Hillsboro Police Department fell in behind
him.
At the time of the stop, defendant was in the driver’s seat and Mitchell was in the passenger seat. Maller took
the driver’s side of the car, while Duggan took the passenger side. The windshield had a horizontal crack through
the driver’s line of vision that extended the length of the
windshield, and Maller initially told defendant that he was
stopping him because of the crack and did not mention the
warrant. After defendant provided Maller with his name
(defendant did not have a license), insurance information,
642 State v. Sherriff
and the registration for the car, Maller went to his patrol
car and confirmed what he already knew: Defendant had an
active warrant. Maller then returned to the Honda and told
defendant that there was a warrant for his arrest.
Defendant uttered a sequence of profanities and
requested permission to finish his cigarette. Maller said,
“Absolutely.” While defendant finished his cigarette, he and
Mitchell talked. When he was done with the cigarette, he
asked Maller if he could kiss Mitchell goodbye. Maller again
said, “Absolutely.” Defendant kissed Mitchell and stepped
out of the car. Maller handcuffed him, patted him down, and
led him to his patrol car.
While Maller was leading defendant away, Mitchell
jumped out of the passenger side, ran around the car, and
got into the driver’s seat. Maller placed defendant in his
patrol car and went back to the driver’s side of the Honda.
By that time, Mitchell had taken off the emergency brake so
that she could leave, and she told Maller that it was her car
and she would take it. Maller asked if she would consent to
having him walk his narcotics detection canine around the
car. Mitchell did not consent, telling Maller, “No, I have to
leave, I have to leave, I have to leave.”
Maller did not want Mitchell to drive away, so he
directed Duggan to start writing up a citation based on
the crack in the windshield. While Duggan was doing that,
Maller got Taz and began circling the Honda. Taz alerted at
the driver’s door seam. Maller asked Mitchell if there were
narcotics in the car, but Mitchell did not respond. Maller
directed Mitchell to step out of the car. She did not comply
at first, but eventually did after he opened the door.
After Mitchell got out of the car, Maller pulled her
purse from the car, searched it, and found methamphetamine
and a scale, for which he arrested her. After Mirandizing her,
Maller put her in Duggan’s patrol car and then Mirandized
defendant. Defendant confirmed that he understood his
rights, and Maller asked him about the methamphetamine
in the car. Defendant replied, “I don’t know anything about
it. There’s nothing in the car that’s mine. I don’t know what
you’re talking about, sir.”
Cite as 303 Or App 638 (2020) 643
By that point, Davis had shown up. Together, Davis
and Maller searched the Honda. In addition to the drugs
and scale, they found roughly $1,133 in Mitchell’s purse.
Davis searched a grey backpack in the backseat and found
about 3.5 ounces of methamphetamine and a 9mm handgun
and ammunition. He then went to ask defendant about it.
Defendant told Davis that he “didn’t know about any of the
contents inside the vehicle, to include the gun and the methamphetamine, that he [had] no knowledge of any of it.”
Mitchell supplied a different perspective. She stated
that she was dealing methamphetamine for defendant and
that some of the profits were hers. The rest of the profits,
however, belonged to defendant, as did the backpack and its
contents. Mitchell explained that defendant had picked up
a half pound of methamphetamine the day before, and that
the two of them had divided it among baggies, making it
likely that both her fingerprints and his fingerprints would
be all over the baggies. Mitchell related that she did not
know about the gun or any other contents of the backpack
except for the methamphetamine.
Maller and Duggan transported Mitchell and defendant to jail.
Defendant was charged with one count of delivery of methamphetamine—commercial drug offense, ORS
475.890(2); one count of possession of methamphetamine—
commercial drug offense, ORS 475.894; and one count of
felon in possession of a firearm, ORS 166.270(1). Before
trial, he moved to suppress the evidence obtained during the
search of the car. He argued that the state obtained that evidence in violation of his rights under Article I, section 9, of
the Oregon Constitution. In particular, he contended that he
had a constitutionally protected possessory interest in the
car and its contents that police unlawfully interfered with
when they, in defendant’s view, unlawfully extended the
stop of the car by writing Mitchell a citation for the cracked
windshield. Defendant pointed out that, under our case law,
the cracked windshield was not a basis for citing Mitchell. In
response, the state argued that the court need not address
whether the extended detention of Mitchell and the car was
permissible because, in its view, defendant abandoned any
644 State v. Sherriff
interest that he had in the car and its contents when he disclaimed any connection to the contents of the car. For that
proposition, the state relied on State v. Standish, 197 Or App
96,
104 P3d 624, rev dismissed as improvidently allowed,
339
Or 450 (2005).
The trial court agreed with the state. It concluded
that, under Standish, defendant abandoned his constitutionally protected possessory interest in the car and its contents
when he disclaimed his connection to the contents of the car.
That, in the court’s view, was dispositive and obviated the
need for the court to address any other issue.
On appeal, defendant challenges that conclusion.
He argues, among other things, that the trial court erred in
determining that its abandonment ruling was dispositive.
Relying on State v. Juarez-Godinez, 326 Or 1,
942 P2d 772
(1997), he contends that officers unlawfully seized the car
and its contents and that that unlawful seizure came before
any disclaimer of his possessory interest in the car and its
contents. He contends that that unlawful seizure requires
the suppression of all evidence discovered in the car as a
result of the search that ensued on the heels of the unlawful
seizure.
In response, the state concedes that the trial court
was “mistaken” in concluding that its abandonment ruling
was dispositive of the motion to suppress. That is because
defendant contended that the car was unlawfully seized
before he disclaimed any interest in the car (and its contents). As a result, the state explains, the trial court needed
to make additional determinations to resolve the motion to
suppress:
“If the car and its contents were lawfully seized—or not
seized at all—defendant’s possessory interests were not
violated. If the car was unlawfully seized, the circuit
court would have to determine whether defendant’s disclaimer was the product of exploitation of that illegality.
But because the court believed that defendant’s abandonment of his privacy interest was dispositive, it did not reach
those questions.”
The state asserts that a remand is required because, in its
view, answering those questions requires further factfinding.
Cite as 303 Or App 638 (2020) 645
In particular, the state argues that “the record supports
competing inferences with respect to the timing of the officers’ show of authority as to Mitchell (and, by extension, the
car) and the grounds therefor,” and a remand is required to
resolve those competing issues.
Defendant replies that no remand is required. He
contends that, one way or another, officers unlawfully seized
the car when they prevented Mitchell from driving away,
and the state failed to establish that its search of the vehicle was attenuated from the unlawful seizure. Although he
acknowledges some conflicts in the evidence, he contends
that none of them need be resolved because the only conclusion that the record allows for is that the unlawful seizure
occurred before defendant disclaimed any interest in the
contents of the car.
We agree with defendant. Although the state is correct that the trial court resolved neither factual nor legal
issues pertaining to defendant’s claim that the car was
unconstitutionally seized, the record, viewed in the light
most favorable to the state, allows for but one conclusion:
The car was seized, unconstitutionally so. That means
defendant is entitled to suppression of the evidence uncovered in the ensuing search of the car because the state did
not attempt to demonstrate that the discovery of the evidence was sufficiently attenuated from any unconstitutional
seizure so as to make the exclusionary rule inapplicable. See
State v. Tapp, 284 Or App 583, 591 n 3,
393 P3d 262 (2017)
(“Because the state bears the burden of proving attenuation,
in the absence of any such argument [about attenuation] our
case law dictates that suppression is required.”).1
1
One of the state’s arguments on appeal suggests that a remand is required
to allow it to demonstrate attenuation. The state argues that, in the event we
determine that the car was unlawfully seized, that would require a remand to
determine whether defendant’s disclaimer of any interest was the product of the
illegal seizure. But that is not an argument that the state raised below. Beyond
that, the correct question would be whether the state established that defendant’s disclaimer occurred before any unlawful seizure. State v. Cook, 332 Or
601, 608-09,
34 P3d 156 (2001) (the state bears the burden of proving that any
alleged abandonment of a constitutionally protected interest occurred before
a warrantless search and seizure). Here, the only conclusion that the record
allows is that the unconstitutional seizure occurred before defendant made any
disclaimers.
646 State v. Sherriff
First, was the car seized? At the latest, officers
seized the car when Taz started his sniff. See Juarez-Godinez, 326 Or at 6-8. When officers arrest the driver of a
car, the driver retains a possessory interest in the car that,
“in normal circumstances,” permits the driver to transfer
possession to a passenger (if there is one) and direct that
the car be driven away.
Id. at 7. If officers, through a show of
authority, curtail the driver’s ability to do so, they effectuate
a seizure of the car.
Id. For example, as defendant points
out, in Juarez-Godinez, the Supreme Court majority considered circumstances similar to those here and concluded that
an officer seized a car when, following the driver’s arrest,
he told the driver and passengers that another officer and a
dog were coming to check out the car.
Id. at 8. The dissent
disagreed that a seizure occurred that early but agreed that
a seizure had occurred—just not until the dog-sniff.
Id. at 19
(Van Hoomisen, J., dissenting). In our view, Juarez-Godinez
requires the conclusion that, at a minimum, Maller seized
the car when he started circling it with Taz. When an officer and a dog start circling a car, it communicates that the
driver is not free to drive away by making it difficult if not
impossible for the driver to depart without injuring a person
or a dog or both.
Second, did the seizure violate Article I, section 9?
“[A] warrantless seizure is unconstitutional unless it is justified under one of a few carefully circumscribed exceptions
to the warrant requirement.” Id. at 8-9. Here, the seizure
of the car was not backed by a warrant and it does not fall
within any identified exception to the warrant requirement.
Below, the state’s main argument as to why Taz’s
sniff was constitutional appears to have been that it occurred
while the officers permissibly detained Mitchell for Duggan
to write up the citation for the cracked windshield, and it
did not otherwise extend that otherwise permissible detention of Mitchell.2 Defendant’s argument, which he reiterates
on appeal, was that the detention of Mitchell was unlawful
because our case law holds that a crack in the windshield,
2
The state also argued that Mitchell was not seized at all. That argument is
not one that was helpful to the state because it does nothing to explain why the
seizure of the car effected by Taz’s sniff would be constitutionally permissible.
Cite as 303 Or App 638 (2020) 647
like the one in the Honda’s windshield, does not violate
the vehicle code, meaning officers lacked probable cause to
detain Mitchell to cite her. See State v. Stookey,
255 Or App
489, 496-500,
297 P3d 548 (2013) (officer lacked probable
cause to stop vehicle for horizonal crack across windshield
through driver’s line of vision because such a crack is not a
violation of the vehicle code). Therefore, Taz’s sniff could not
be justified on the basis that it occurred during the lawful
detention of Mitchell for the purpose of writing the citation.
Under Stookey, it may have been impermissible for
the officers to detain Mitchell for the purpose of writing her
a citation for the cracked windshield. We need not resolve
the point, however, in view of State v. Arreola-Botello, 365
Or 695,
451 P3d 939 (2019), which the Supreme Court
decided after briefing was completed in this case. There,
the Supreme Court held 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.”
Id. at 712. That means that all such
activities, including inquiries, must be reasonably related
to the purpose of the traffic stop or supported by an independent constitutional justification.
Id. at 712-13; State v.
Watson,
353 Or 768, 778-82,
305 P3d 94 (2013).
Here, even if Mitchell was permissibly detained for
the citation, the record gives no plausible basis for concluding that Taz’s inspection had any reasonable relationship to
citing her for a cracked windshield. Neither does it supply
any basis for concluding that Maller had an independent
constitutional basis for seizing the car to allow Taz to do his
work (and the state, in any event, has at no point advanced
one).3 That means the seizure of the car violated Article I,
section 9.
In sum, under Juarez-Godinez, the record compels
the conclusion that Maller and Taz seized the Honda, and,
3
Below, the state argued that the automobile exception allowed it to search
the car and its contents once Taz’s alert gave officers probable cause to believe
that the car contained drugs. But the state did not argue, and could not argue,
that the automobile exception allowed for Taz to inspect the car in the first
instance.
648 State v. Sherriff
further, that the state did not establish that that warrantless seizure fell within an exception to the warrant requirement. As noted, the state did not make a case for attenuation. Defendant therefore is entitled to suppression of the
evidence discovered in the search of the car and its contents
that followed on the heels of the unconstitutional seizure of
the car. The trial court erred when it concluded otherwise,
and, on this record, that error was not harmless.
Reversed and remanded.
