State v. Daffern

                                 351

  Submitted on remand from the Oregon Supreme Court February 12, 2020,
                  reversed and remanded March 31, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                SCOTT DAVID DAFFERN,
                   Defendant-Appellant.
              Washington County Circuit Court
                   17CR24418; A165867
                              

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

, 

 (2020).
   Janelle F. Wipper, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Joshua B. Crowther, 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 Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   PER CURIAM
   Reversed and remanded.
352                                          State v. Daffern

        PER CURIAM
         We affirmed without opinion defendant’s conviction
for unlawful possession of methamphetamine, ORS 475.894,
rejecting his challenge to the trial court’s denial of his
motion to suppress. 

, 

 (2019).
Defendant sought review in the Supreme Court, and the
Supreme Court has now remanded the case to us for reconsideration in light of the court’s opinion in State v. Arreola-Botello, 

, 

 (2019). We now agree with
defendant that his conviction must be reversed.
         Police Officers Allenbaugh and Schreiner were
patrolling and stopped defendant on his bicycle for failing
to signal a lane change. Allenbaugh asked defendant for
his identification, and defendant provided an Oregon Identification Card. Allenbaugh contacted dispatch for a records
check.
        While waiting for the results of the records check,
and without any independent justification, Schreiner asked
defendant if he could search him for drugs or weapons.
Schreiner testified that he asked for defendant’s consent to
search during an unavoidable lull. Defendant consented.
Schreiner asked defendant if he had anything sharp or dangerous in his pockets, and defendant volunteered that he had
a syringe in his left front pocket. Schreiner found the syringe
and later determined that it contained methamphetamine.
        Defendant was charged with unlawful possession of
methamphetamine and sought to suppress evidence of the
search, arguing that the request for consent to search was
not reasonably related to the stop. The trial court denied
the motion, citing this court’s case law allowing for such
questioning during an “unavoidable lull.” See, e.g., State v.
Dennis, 

, 

 (2012). On appeal,
we affirmed defendant’s conviction without opinion.
         In Arreola-Botello, 

, the court disavowed our “unavoidable lull” rationale and held that investigative inquiries after a lawful traffic stop must be reasonably related to the purpose of the traffic stop or supported
by an independent constitutional justification. Because
the record here reflects that Schreiner’s request to search
Cite as 

 (2021)                            353

defendant did not have any relation to the purpose of the
traffic stop and was not supported by an independent constitutional justification, we conclude that the trial court erred
in denying defendant’s motion to suppress.
        Reversed and remanded.