State v. Hernandez-Torres

                                  700

 Submitted June 5; judgment in Case No. 18CR44605 reversed and remanded,
        judgment in Case No. 17CR36938 affirmed August 5, 2020


                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
        MIGUEL ANGEL HERNANDEZ-TORRES,
                aka Miguel A. Torres,
                Defendant-Appellant.
           Washington County Circuit Court
              18CR44605, 17CR36938;
             A170726 (Control), A170753
                              

  Beth L. Roberts, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and David B. Thompson, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
   Judgment in Case No. 18CR44605 reversed and remanded;
judgment in Case No. 17CR36938 affirmed.
Cite as 

 (2020)                                                701

           PER CURIAM
        This is a consolidated appeal. In Case No.
18CR44605, defendant was convicted for unlawful possession of methamphetamine, ORS 475.894(2)(a). In Case No.
17CR36938, defendant’s probation was revoked, but defendant does not assign error in that case, so we affirm the
judgment in that case without further discussion.1
         In Case No. 18CR44605, defendant assigns error to
the trial court’s denial of his motion to suppress evidence
of methamphetamine found in his car after he consented
to a search during a traffic stop. In that case, the court
determined that the officer’s request for consent to search,
although unrelated to the reason for the stop, occurred
during an “unavoidable lull” in the stop. Thus, the court
denied defendant’s motion to suppress. See State v. McBride,

, 

 (2019), vac’d and rem’d, 

, 

 (2020) (concluding that the trial court
did not err in denying the defendant’s motion to suppress,
because the officer’s question to the defendant regarding
whether she had any drugs in her car took place during an
“unavoidable lull” in the traffic stop).
         After the trial court denied defendant’s suppression
motion and convicted him, the Supreme Court issued State
v. Arreola-Botello, 

, 

 (2019),
and concluded that, “for the purposes of Article I, section 9,
[of the Oregon Constitution,] 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.” The court further concluded that 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.” 

Here, the state concedes that, even if the officer’s unrelated

    1
      Defendant was served with two separately issued orders to appear for a
probation violation hearing based upon different violations: (1) alleged possession
of methamphetamine and (2) alleged failure to make payments. The probation
revocation judgment does not indicate that defendant was convicted based upon
his conviction for possession of methamphetamine. Rather, the judgment indicates that defendant admitted that he failed to make payments. Therefore, the
reversal of defendant’s conviction in Case No. 18CR44605 does not necessarily
require reversal of defendant’s conviction in Case No. 17CR36938.
702                               State v. Hernandez-Torres

request for consent to search did not extend the duration of
the stop, it violated Arreola-Botello’s subject-matter limitation on inquiries during a traffic stop. We agree and accept
the state’s concession that, under Arreola-Botello, the trial
court erred in denying defendant’s motion to suppress.
Accordingly, the judgment of conviction for unlawful possession of methamphetamine is reversed and remanded.
       Judgment in Case No. 18CR44605 reversed and
remanded; judgment in Case No. 17CR36938 affirmed.