State v. Hallam

                                       796

Argued and submitted May 8, 2019, reversed and remanded December 9, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     MELISSA ANN HALLAM,
                        Defendant-Appellant.
                    Douglas County Circuit Court
                      15VI165487, 15CR55491;
                     A166144 (Control), A166151
                                   

     Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, assigning error to the trial court’s denial of her
motion to suppress evidence obtained during a traffic stop. This case was litigated, both at trial and on appeal, prior to State v. Arreola-Botello, 

,

 (2019), in which the Oregon Supreme Court refocused the inquiry
away from the unlawful extension of a traffic stop, to the proper scope of a traffic
stop, announcing, in essence, a subject matter limitation on the questions that an
officer can ask during such an encounter. Defendant’s arguments on appeal mirror the prevailing arguments in Arreola-Botello. The state concedes that a subject
matter limitation such as that ultimately announced in Arreola-Botello would be
dispositive on the merits of the case, but contends that defendant’s arguments
are unpreserved. Held: Defendant failed to preserve a subject matter limitation argument before the trial court. However, in light of the change in the law
brought about by Arreola-Botello, and in light of the state’s concession, the issue
qualified as one of “plain error” worthy of the exercise of discretion to correct.
    Reversed and remanded.



    Frances Elaine Burge, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, Office of Public Defense Services, argued the cause
and filed the brief for appellant.
   David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Lagesen, Presiding Judge, and James, Judge, and
Landau, Senior Judge.
Cite as 

 (2020)   797

  JAMES, J.
  Reversed and remanded.
798                                          State v. Hallam

        JAMES, J.
         Defendant appeals a judgment of conviction for
unlawful possession of methamphetamine, ORS 475.894,
assigning error to the trial court’s denial of her motion to
suppress evidence obtained during a traffic stop. This case
was litigated, both at trial and on appeal, before the Oregon
Supreme Court decided/issued its opinion in State v. Arreola-Botello, 

, 

 (2019). In Arreola-Botello,
the court refocused the inquiry away from the unlawful
extension of a traffic stop, see State v. Rodgers/Kirkeby, 

, 

 (2010), to the proper scope of a traffic stop, announcing, in essence, a subject matter limitation on the questions that an officer can ask during such an
encounter.
         Defendant’s arguments on appeal in this case mirror the arguments that ultimately prevailed in Arreola-Botello. At oral argument here, the state acknowledged that
a subject matter limitation, as ultimately announced in
Arreola-Botello, would be dispositive on the merits of this
case, noting that under any such rule of law, the state’s case
here would be “in trouble.” However, the state argues that
the subject matter limitation argument defendant raises on
appeal was not preserved before the trial court, and that
for reasons of preservation, we should affirm. Defendant,
for her part, claims that the subject matter limitation argument was preserved.
         As we explain, we agree with the state that defendant failed to preserve a subject matter limitation argument before the trial court. However, in light of the change
in the law brought about by Arreola-Botello, and in light of
the state’s acknowledgment that the facts of this case would
not withstand Arreola-Botello’s subject matter limitation—a
concession that is well-taken—the issue qualifies as one of
“plain error.” ORAP 5.45(1); State v. Jury, 

, 

 (2002), rev den, 

 (2003) (“Error,
in general, must be determined by the law existing at the
time the appeal is decided, and not as of the time of trial.”
(Footnote omitted.)). We exercise our discretion under Ailes v.
Portland Meadows, Inc., 

, 

 (1991)
to correct the error and, accordingly, reverse and remand.
Cite as 

 (2020)                                799

         The pertinent facts are undisputed. Douglas County
Sheriff Deputies Gardner and Reavis stopped defendant
after she committed a traffic infraction. Defendant could not
produce proof of registration or insurance and searched for
the documents for several minutes, including opening the
trunk of her car at one point. As she searched in the trunk,
deputies saw a box of .22 caliber ammunition, though they
saw no weapon. Gardner returned to the patrol car to write
citations, while Reavis remained at the car with defendant.
         Gardner contacted dispatch to run defendant’s
license and to complete a computerized criminal history
(CCH) report. Both Gardner and Reavis testified that running a check for warrants and driving records takes less
than three minutes, while running a CCH check takes several minutes longer. Gardner did not know whether defendant had a criminal record, but he knew that she “associate[d] with numerous drug users and drug dealers.” Based
on these associations, Gardner assumed defendant might
have a recent felony conviction. And based on the ammunition observed in the trunk of the car, he assumed she might
have a firearm (and further assumed that would be illegal
if she had a recent felony conviction). While waiting for a
response from dispatch about defendant’s criminal record,
Gardner wrote her citations for driving uninsured, failure
to register a vehicle, and failure to stop when emerging. He
spent about 10 minutes in the patrol car.
         In the meantime, Reavis’s conversation with defendant quickly escalated from small talk to questions about
her drug use, whether she had any contraband in her car,
and when she was last convicted of a felony. He asked defendant whether she had been able to “stay clean.” As Reavis
testified:
   “… I asked her about her drug use and asked her if she
   had been able to stay clean for a while and she told me that
   she had. I asked her when the last time she used was and
   she couldn’t tell me specifically but she said it had been a
   long time ago. I told her that’s not what I had been hearing while speaking to people in the area there. I asked her
   when her last felony conviction was and she told me it was
   over 15 years ago. I asked her what it was for. She said it
   was for meth. I then asked her if there was anything illegal
800                                               State v. Hallam

   in the vehicle or if she had anything illegal in the vehicle
   and she told me she did not.”
        Reavis told defendant that he had heard she was
using meth from “people … in the community.” Reavis then
asked defendant to “prove” that she was not using drugs. As
Reavis testified:
   “… I told her that I would like to give her the opportunity
   to prove me, or prove it to me that, that, that she was being
   clean and she was truthfully not using methamphetamine
   and that she didn’t have any[thing] illegal with her. And
   then I asked her if she would give me consent to search the
   vehicle.”
         Defendant gave her consent and stepped out of
the car, holding her purse tightly to her body. This raised
Reavis’s suspicions, and he asked her if he could search her
purse. Defendant opened her purse, revealing a purple bag
which she told Reavis contained “personal stuff.” At this
point Gardner leaned out of his patrol car to tell Reavis that
defendant had had a felony conviction within the previous
15 years.
         Reavis began to feel nervous about defendant holding the purse and asked her if he could put it on the roof of
her car. She reluctantly gave it to him. Then, Reavis questioned defendant about the contents of her purse:
        “I asked her if I searched her purse if there would be
   anything illegal inside of it and she just looked at me. She
   didn’t say anything. And it was just kind of that awkward
   silence for a little bit. And then I asked her if she would
   please be honest with me and she told me I have meth in
   it.”
Reavis then searched the purse and found 0.6 grams of meth
and a snort tube inside a purple bag. Reavis and Gardner
finished writing defendant’s vehicle code citations and added
another for possession of methamphetamine (ORS 475.894).
         Defendant moved to suppress the evidence of meth
and paraphernalia before trial. She filed a bare bones
“points and authorities” motion—one in which she listed a
series of constitutional provisions and cases, but offered no
actual argument as to how those authorities applied to the
Cite as 

 (2020)                                  801

case, or what was her legal theory as to why suppression
was constitutionally required. At argument on the motion,
she focused on the unlawful extension of the traffic stop, an
argument tracking the analysis of Rodgers/Kirkeby, 

.
         The trial court determined that the stop was not
unlawfully extended by Gardner requesting defendant’s
computerized criminal history or any of the deputies’ other
actions:
   “[B]ased on the testimony that I, that I was provided by
   Deputy Reavis, Reavis and Deputy Gardner, I don’t find
   that there was any contrary evidence indicating that
   that was an unreasonable amount of time. Although the,
   Deputy Gardner could not say exactly each minute what
   he was doing, he very clearly indicated that he was waiting
   for the criminal history check by dispatch. There was time,
   the time that that took. He was also starting to fill out the
   citation while he was also watching Deputy Reavis’ contact
   with [defendant] to make sure that he was watching for
   officer safety.”
In the stipulated facts trial that followed, the court found
defendant guilty of unlawful possession of methamphetamine and two vehicle code violations, and this appeal
followed.
         On appeal, defendant assigns error to the trial
court’s denial of her motion to suppress, arguing first, under
Rodgers/Kirkeby, that the deputies’ inquiries unlawfully
extended the traffic stop. But, in the alternative, she argues
that the deputies’ investigation was impermissible in scope.
As defendant argues on appeal, Reavis “significantly interfered with defendant’s liberty by forcing her to interact with
him on a subject for which Reavis had no basis to question
[her].”
        With that background, we turn to the issue on
appeal, beginning with preservation. Defendant argues
that her written motion, in particular the portion of the
motion which stated “[t]he intensity and duration of the stop
exceeded the legal basis giving rise to the stop” preserved
the Arreola-Botello argument she now advances on appeal.
We disagree.
802                                             State v. Hallam

        It is unclear what, if anything, defendant’s written
motion preserved. “A written motion to suppress ‘serves
dual functions[:] It frames the issues that the court will be
required to decide, and it notifies the state of the contentions that it must be prepared to address at the hearing on
the motion.’ ” State v. Parnell, 

, 

 (2016) (quoting State v. Sweet, 

,

 (1993) (brackets in Parnell; internal citation
omitted)); see also State v. Anderson-Brown, 

, 

, rev den, 

 (2016).
         A “points and authorities” style motion, like the one
filed here, may, in some circumstances, be minimally adequate to meet the requirements of Uniform Trial Court Rule
(UTCR) 4.060(1), which provides:
   “All motions to suppress evidence:
      “(a) must cite any constitutional provision, statute,
   rule, case, or other authority upon which it is based; and
      “(b) must include in the motion document the moving
   party’s brief, which must sufficiently apprise the court and
   the adverse party of the arguments relied upon.”
        In the case of a warrantless seizure or search we
have noted:
   “The rule contains no requirement that a suppression
   motion contain detailed factual arguments. Instead, a
   motion that generally identifies a search or seizure by the
   state, asserts that the search or seizure was warrantless
   and, therefore, per se unreasonable unless the state demonstrates otherwise, cites authority in support of the motion,
   and requests suppression of evidence obtained as a result
   of the search or seizure ‘sufficiently apprise[s]’ the court
   and the adverse party of the arguments relied upon by the
   moving party.”
State v. Oxford, 

, 

 (2017)
(brackets in original; internal citation omitted).
        However, attorneys who craft motions to just barely
cross the minimal threshold of UTCR 4.060 play a risky
game. Points and authorities motions that offer no legal
argument, like the motion here, while potentially complying
with UTCR 4.060 in some instances, may nevertheless be
Cite as 

 (2020)                             803

inadequate to preserve an argument for appeal. Appellate
preservation is not something that can be reduced to “a neat
verbal formula.” State v. Walker, 

, 

 (2011). Rather, the rule of appellate preservation is a
practical rule, “and close calls … inevitably will turn on
whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.” State v. Parkins, 

, 

 (2009).

          The rule of preservation “gives a trial court the
chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already
made, which in turn may obviate the need for an appeal.”
Peeples v. Lampert, 

, 

 (2008). The
rule also ensures fairness to opposing parties, by requiring
that “the positions of the parties are presented clearly to the
initial tribunal” so that “parties are not taken by surprise,
misled, or denied opportunities to meet an argument.” Davis
v. O’Brien, 

, 

 (1995).

         Here, nothing in defendant’s written motion sufficiently apprised either the state, or the trial court, of the
Arreola-Botello subject matter limitation argument that she
advances on appeal. And our review of the hearing on the
motion before the trial court shows no indication that the
bare bones written motion was supplemented by Arreola-Botello-style arguments. Rather, the arguments at the suppression hearing, understandably, tracked the law in effect
at the time under Rodgers/Kirkeby. Accordingly, the subject
matter limitation argument advanced on appeal is unpreserved. That does not, however, end our inquiry.

          We ordinarily will not proceed to the question of
plain error unless an appellant has explicitly asked us to do
so. See, e.g., State v. Hammond, 

, 

 (2008) (not addressing the question of plain error
where the “defendant does not argue that the matter in dispute satisfies the requisites of ‘plain error’ as prescribed in
State v. Brown, 

, 

 (1990), and
that substantial considerations militate in favor of the affirmative exercise of the discretion”).
804                                              State v. Hallam

        However, in State v. Tilden, 

, 589-
90, 

 (2012), we identified the rare situation in
which we will engage in plain error review, even when it is
not expressly asked for by the appellant:
       “In this case, however, although defendant’s brief does
   not contain the words ‘plain error’ or citation to ORAP 5.45,
   defendant has nonetheless satisfied the requisites of ORAP
   5.45 regarding a claim of error apparent on the record and
   has met his burden of demonstrating that type of error in
   his opening brief. … Here, defendant has identified the
   ruling, … specified the state of the proceedings (he made
   a motion for a judgment of acquittal, but not on the correct
   grounds), and set forth pertinent quotations not only where
   his motion for a judgment of acquittal was denied (again,
   on different grounds than those now argued by defendant)
   but also the portions of the record where the trial court considered the ‘control’ question with regard to an evidentiary
   ruling, thereby demonstrating that the court was generally apprised of the issue, albeit in a different procedural
   context.
      “More importantly, though, defendant complied with the
   requirement in ORAP 5.45(6) that his ‘argument in support of a claimed error apparent on the record shall demonstrate that the error is of the kind that may be addressed by
   the court without the claim of error having been preserved
   in the record’—in other words, he demonstrated that the
   argument satisfies the legal test for plain error.”
         Relying upon Tilden, we also exercised plain error
review despite no express request by the appellant in State v.
Hoseclaw, 

, 341, 

 (2019), where
there had been a significant change in the law between the
time of the trial court ruling and the appeal. In that case,
we noted:
      “Defendant believed his claim of error to have been preserved, and he did not request plain-error review. Although
   we ordinarily do not undertake plain-error review in the
   absence of an explicit request, this is the rare situation,
   like in State v. Tilden, 

, 

   (2012), where defendant’s brief, in light of subsequent case
   law, has nonetheless satisfied the requisites of ORAP 5.45
   regarding a claim of error apparent on the record.”
Hoseclaw, 299 Or App at 341.
Cite as 

 (2020)                              805

          As in Tilden and Hoseclaw, and in light of our
approach to changes in the law between trial and appeal
as articulated in Jury, 

, we conclude
that considering the issue under our plain error doctrine is
appropriate in this case. Accord State v. Ulery, 

, 

 (2020) (“Whether an error occurred is
generally determined by the law at the time of the appellate decision, and nothing in our cases or the text of ORAP
5.45(1) indicates that plain error review incorporates its own
nonretroactivity rule.”); State v. Zavala, 

, 380 n 1,

 (2017) (“When used to describe a trial court’s
ruling that was not erroneous under existing law, the term
‘plain error’ is a misnomer; it does not imply any mistake
by a trial court. Instead, it is a label that an appellate court
uses when it decides that a party is entitled to a benefit of a
change in the law.”). Here, as the state essentially concedes,
the trial court’s error is apparent on the face of the record in
light of subsequent case law.
          Article I, section 9, of the Oregon Constitution
establishes the right of the people “to be secure in their
persons, houses, papers, and effects, against unreasonable
search, or seizure.” “[W]hen a motorist is stopped for a traffic
infraction, that stop implicates Article I, section 9.” AreollaBotello, 

. “[U]nder Article I, section 9, as under
ORS 810.410(3)(b), police authority to detain a motorist dissipates when the investigation reasonably related to that
traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should
be completed.” State v. Watson, 

, 

(2013) (internal quotation marks omitted).
         In Arreola-Botello, the Supreme Court rejected
the unavoidable lull doctrine, holding that “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.”

. 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.” 

 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.” 

806                                          State v. Hallam

          The Arreola-Botello rule is clear: Officers conducting a traffic stop may only conduct investigation unrelated to
that traffic stop if they have independent constitutional justification for further inquiries. Neither line of inquiry here
(first, whether defendant had drugs, and second whether
she illegally possessed a gun) was related to the basis of the
traffic stop. The only remaining question is whether that
nontraffic-stop-related inquiry was justified by reasonable
suspicion of a crime. It plainly was not.
         “To be lawful, an extension of a traffic stop to conduct a criminal investigation must be justified by reasonable suspicion of criminal activity.” State v. Barber, 

, 

 (2016). Although the standard for
reasonable suspicion is “less than the standard of probable
cause to arrest,” a “stop is unlawful unless it meets an objective test of reasonableness based on observable facts.” State
v. Holdorf, 

, 

 (2014). Reasonable
suspicion exists when the officer “subjectively believes that
the person has committed or is about to commit a crime and
that belief is objectively reasonable in light of the totality
of the circumstances existing at the time of the stop. To be
objectively reasonable, the officer’s suspicion must be based
on specific and articulable facts.” State v. Maciel, 

, 

 (2013) (internal citations omitted).
Here, the state has the burden of proving that the officers
reasonably suspected defendant possessed illegal drugs. See
State v. Guest, 

, 

 (2006).
          There is no dispute that Gardner lacked reasonable
suspicion that defendant had drugs. In State v. Rutledge,

, 

 (2011), we held that
officers did not have reasonable suspicion to justify a stop
where the defendant had just left a motel believed to be a
site of drug activity, was “in a car with a person suspected of
drug activity,” and had a “nervous attitude” about her purse.
In contrast, in State v. Clink, 

, 

 (2015), we held that the state established reasonable
suspicion where a named informant reported seeing the
defendant smoking something in a car, and the state had
other information, namely, the defendant was with a known
drug user and was making “furtive gestures.” Reavis’s suspicion was less reasonable than that in either of those cases.
Cite as 

 (2020)                             807

         Additionally, the state offers no argument that
the questioning was permissible based on officer safety
concerns. In State v. Jimenez, 

, 

 (2015), an officer did not have reasonable suspicion to
ask a person about weapons during a traffic stop where he
had spent some time talking to the defendant before asking
about weapons and did not testify to circumstance-specific
fears for his safety. Here, the ammunition in this case was
far from defendant’s reach in the trunk. No weapon was
observed. Defendant made no threats. She was not hostile.
Nothing indicates that the encounter was anything other
than collegial. Reavis and defendant had been speaking
amicably for several minutes before Reavis asked to search
her purse and defendant had allowed Reavis to put her
purse on the roof of the car. In short, the record is plainly
insufficient to show that Reavis was subjectively reasonably
concerned for his safety, let alone that any such concerns,
even if they existed, would be objectively reasonable; and,
again, the state does not argue otherwise.
         Accordingly, we conclude that the deputies’ questions
here violated defendant’s rights under Article I, section 9. In
light of Arreola-Botello, the error is apparent on the record,
and the state does not contend otherwise. We exercise
our discretion to address the error. Defendant’s constitutional rights are affected, and defendant’s conviction was
obtained, in part, based on evidence derived from that constitutional violation. Although defendant did not preserve
the argument made on appeal, defendant did not encourage
the error, nor does the failure to raise the correct argument
reflect a strategic choice. And, as in Ulery, “given the trial
court’s inability to correct the error under controlling law,
the fact that it was not given an opportunity to do so does
not weigh heavily.” 

; State v. Fults, 

, 

 (2007).
        Reversed and remanded.