State v. Mock

                                       454

         Submitted May 28, 2020, reversed and remanded April 7, 2021


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                        EVAN ALLEN MOCK,
                         aka Evan Alen Mock,
                         Defendant-Appellant.
                      Union County Circuit Court
                         18CR14290; A169059
                                   

    Defendant appeals from a judgment of conviction for conspiracy to deliver
oxycodone, ORS 161.450(2)(b). Following a traffic stop, detectives initiated a criminal drug investigation, seized defendant’s phone, and subsequently searched
that phone pursuant to a warrant, resulting in defendant’s indictment for the
above crime. Defendant moved to suppress the evidence, challenging the extension of the traffic stop, the warrantless seizure of the phone, and the warranted
search of the phone. The trial court denied the motion in its entirety. On appeal,
defendant raises three assignments of error, repeating his arguments below.
Held: The trial court erred in denying defendant’s suppression motion, because
the criminal drug investigation was not supported by reasonable suspicion. All
evidence discovered as a result of that investigation, including evidence discovered on defendant’s phone, was inadmissible.
    Reversed and remanded.



    Thomas B. Powers, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
    SHORR, J.
    Reversed and remanded.
Cite as 

 (2021)                                                 455

           SHORR, J.
          Defendant appeals from a judgment of conviction
for conspiracy to deliver oxycodone, ORS 161.450(2)(b).
Following a traffic stop, detectives initiated a criminal
drug investigation, seized defendant’s phone, and subsequently searched that phone pursuant to a search warrant,
resulting in defendant’s indictment for the above crime.
Although defendant raises three separate assignments
of error, we only substantively address one: defendant’s
claim that the trial court erred when it denied his motion
to suppress evidence obtained by the extension of the traffic stop.1 Defendant argues that the detectives abandoned
their traffic-infraction investigation and began a criminal
drug investigation without reasonable suspicion that defendant was engaged in criminal drug activity, in violation of
Article I, section 9, of the Oregon Constitution. We conclude
that the court erred in denying defendant’s suppression
motion, because the criminal drug investigation was not
supported by reasonable suspicion. All evidence discovered
as a result of that investigation, including derivative evidence discovered when defendant’s phone was seized and
searched, was inadmissible. Accordingly, we reverse and
remand.
         We review the trial court’s ruling denying defendant’s motion to suppress for errors of law. State v. Maciel-Figueroa, 

, 

 (2017). In doing
so, we are bound by the court’s factual findings if there is
constitutionally sufficient evidence in the record to support them. State v. Ehly, 

, 

 (1993).
Where the court did not make express findings, and there
is evidence from which the court could have found a fact in
more than one way, we presume that the court decided the
facts consistently with its ultimate conclusion. 

 We summarize the facts in accordance with those standards.

    1
      Defendant also assigns error to the trial court’s denial of his motion to suppress evidence obtained from the warrantless seizure and warranted search of
his phone, events that would not have occurred but for the initial traffic stop and
drug investigation. Our resolution of defendant’s first assignment obviates the
need to substantively address those additional assignments because we conclude
that all evidence discovered as a result of the unlawful drug investigation was
inadmissible, including evidence discovered on defendant’s phone.
456                                                        State v. Mock

         In November 2017, defendant reported to the
La Grande Police Department that he and several of his
friends had been the victims of a series of robberies. For
reasons that are not clear on this record, police doubted the
veracity of those reports. The department enlisted the help
of the Union County Sheriff’s Office, who conducted a surveillance operation targeting defendant’s house. Specifically,
Detectives McKaig and Sutten surveilled defendant’s house
over the course of a two-week period, watching the house at
night for at most six hours at a time. McKaig testified as to
his observations:
      “So as we watched the residence, we noticed traffic coming and going, meaning individuals showing up, arriving,
   and whether they were staying quite short durations of
   time, which is consistent with what we know from surveillance to be consistent with drug activity. People come, they
   show up, and they go. And more specifically, the people that
   were coming and going were people that we knew to be in
   the drug world or the drug culture of Union County.”
McKaig testified that a “known drug user” was
      “[s]omeone that we’ve either have knowledge specific,
   co-obrative [sic] knowledge that we can corroborate either
   ourselves, or that they’ve previously been convicted of drug
   crimes. And whether or not—it doesn’t—I would say where
   they’ve been convicted of crimes, but that doesn’t mean
   that that is the say all for us in the drug task force. If we
   have specific knowledge that we were able to corroborate or
   we’ve watched them buy drugs, or we’ve purchased drugs
   from them with a confidential informant, that’s how we
   know they’re a drug user.”
         Later in December of that year, McKaig and Sutten
were conducting unrelated surveillance at around 7:00 p.m.
when they happened to recognize defendant driving a vehicle that was headed out of town on Interstate 84. The detectives left their position and began following defendant on
the interstate, staying about a mile behind him to avoid
detection.2 The detectives were in plain clothes and were
    2
       McKaig offered two reasons for their decision to tail defendant. McKaig
testified that they started following defendant because they knew his driver’s
license was suspended, but also because they wanted to further surveil him.
Specifically, McKaig wanted to “see exactly where he was going and if he was
willing to—or going to meet up with somebody outside of town.”
Cite as 

 (2021)                                   457

travelling in an unmarked police car. After traveling about
five miles, defendant left the interstate and pulled into the
parking lot of a state park. The detectives did not notice
any other vehicles in that parking lot. The detectives continued past the exit, turned around, and “made a position
that we could still see if another vehicle showed up, or lights
at least if—if they were down there meeting somebody, in
hopes of maybe identifying who they may be.” However, no
other vehicles arrived at the parking lot, and within a “couple minutes, tops,” defendant pulled back onto the interstate
in his original direction of travel. The detectives continued
following him, observed several traffic violations, and initiated a traffic stop.
         Both detectives believed that defendant’s brief interstate exit and reentrance was a “heat check,” or a maneuver
designed to “avoid law enforcement detection or to discover
law enforcement.” When asked to explain what he meant by
“heat check,” McKaig testified that,
   “when we’re following individuals that are involved in the
   drug community—specifically, our small community, we
   have—the vehicle that we were in at that time, it—we’ve
   had that vehicle for 12 years and we’ve—we’ve been known
   in that vehicle. Like we—we leave our office and everyone
   knows that we’ve left our office at that time. So what happens more often than not with us, is we’ll start to drive
   behind somebody, trying to stay back, but they either see
   us back there and they’ll start to turn corners and let it be
   known that they know we’re there.
      “So—or if they don’t know if we’re there, it’s just a strategy of a drug user or dealer that may have something on
   them to avoid law enforcement detection or to discover law
   enforcement; so they will take an exit or take a turn on a
   block and loop around behind the people that were behind
   them. If they look in their rearview mirror and suspect a
   car, they’re going to loop around that person to see if the
   car makes the same turns they do.”
        Upon initiating the traffic stop, McKaig approached
defendant’s window, advised him that he had been stopped
for certain traffic violations, and requested his license,
insurance, and registration. McKaig testified that, at that
time, he observed certain “drug indicators.” First, McKaig
458                                                         State v. Mock

testified that he looked in the windows and observed “miscellaneous items” but “no luggage or anything like that.”
Second, defendant appeared to be extremely nervous.
Specifically, McKaig observed that defendant was “having
stomach tremors,”3 smoking cigarettes, and “not making eye
contact.” While McKaig acknowledged that most people “get
nervous when they’re stopped by police,” he believed that
defendant’s nervousness was “elevated” beyond the norm.
At that point, McKaig returned to his vehicle, where he
ran a record check of defendant and his passenger. Those
checks confirmed that defendant’s driving privileges were
suspended. However, the detectives did not initiate writing
any citations. McKaig returned to defendant’s window and
asked defendant about his travel plans.
         Defendant responded that he and his passenger
were headed to Wildhorse Casino in Umatilla County, which
the officer believed to be a common location for drug deals in
that area. Specifically, McKaig testified that,
   “here in Union County, I would—I would surmise that
   99 percent of our illegal narcotics come from Umatilla
   County. It’s kind of the mecca of Eastern Oregon’s drug culture and most of the dealers are from there; so most all
   of our drug users and/or dealers will travel to Umatilla
   County, specifically Wildhorse.
      “And the reason they go to Wildhorse is, one, it’s a really
   busy casino and truck plaza. But, two, it’s on a reservation
   in which most law enforcement is not there.
      “And I’ve—we’ve had numerous investigations where
   that’s where the meet spot is, is Wildhorse Resort and
   Casino.”
Defendant indicated he planned to spend the night at the
casino, which McKaig found suspicious because defendant
did not have any luggage visible in the vehicle. McKaig
asked defendant who he was going to meet at the casino,
but defendant did not answer. Around that time, Sutten told
McKaig that he had observed small rolls of aluminum foil in
defendant’s car, which McKaig testified are used for pill or
     3
       McKaig elaborated that there is an “elevated level of nervousness, when
you can actually see the heartbeat in someone’s neck or their stomach breathing
is tremored and it shakes as they breathe.”
Cite as 

 (2021)                                           459

heroin packaging and “to smoke or take hits off of the aluminum foil.” McKaig asked defendant if he had any drugs
or weapons in the car. Defendant denied having those items,
but McKaig “noticed a behavioral change when I asked specifically about heroin and—and meth.” McKaig asked defendant if he thought a drug-detection dog would alert on his
car, to which defendant responded, “It shouldn’t.” McKaig
found that answer suspicious because it was not a definitive
“no.”
         The detectives radioed to the Oregon State Police
and requested their drug-detection dog. It took “a matter
of minutes” for the dog to arrive, during which time defendant used his cell phone to call his girlfriend to secure a
ride and the transport of his vehicle. The dog alerted and
the detectives searched defendant, his passenger, and
his vehicle.4 A scale, “snort tubes,” and drug residue were
found in the car, and $611 in cash was found on defendant.5
Finally, the detectives seized defendant’s phone, because
McKaig thought there was probable cause to believe that
the phone would contain evidence of drug-related communications, and because McKaig thought that exigent circumstances necessitated a warrantless seizure because
the evidence could be easily destroyed. Defendant was not
cited or arrested and was left on the side of the road with
his vehicle. Subsequently, the detectives obtained a search
warrant to search defendant’s phone for certain specified
evidence of drug crimes from the previous 45 days. Based
on the discovery of evidence on that cell phone, defendant
was charged with a single count of conspiracy to deliver
oxycodone.
         In advance of trial, defendant moved to suppress the
“stop, search, and seizure of the Defendant and his property,
as well as the search warrant and all fruits thereof.” As relevant to our analysis on appeal, defendant argued that the
detectives unlawfully extended the traffic stop and began

    4
      McKaig testified that “we had probable cause to search the vehicle based
on the K-9 sniff.” That sniff was conducted when the passenger, later found in
possession of oxycodone, was in the vehicle. Defendant does not challenge the
reliability of the dog sniff on appeal.
    5
      Drugs and a handgun were also found on the passenger.
460                                                               State v. Mock

a criminal investigation, absent an “unavoidable lull”6 or
reasonable suspicion of drug activity, when they questioned
defendant about his travel plans.7 The state made only one
argument in response: that the extension of the stop was
supported by reasonable suspicion. The state highlighted
(1) the detectives’ observations at defendant’s home weeks
earlier, when they had witnessed known drug users visiting
for short intervals; (2) defendant’s behavior of briefly leaving the interstate, believed to be a “heat check”; (3) defendant’s nervous demeanor, exhibited by lack of eye contact,
stomach tremors, and smoking; and (4) the fact that defendant had no luggage. The state also argued three additional
factors that McKaig did not learn until after he had asked
defendant where he was headed: defendant’s answer that he
was headed to the Wildhorse Casino, defendant’s response
when asked if he had drugs in the car, and Sutten’s observation that there were aluminum foil rolls in the car. The
state argued that “there was reasonable suspicion to extend
the stop. There was reasonable suspicion to call the dog[,]”
and “[the detectives] had reasonable suspicion, which is all
that’s required to get a drug dog out there.” The state never
directly responded to defendant’s argument that the stop
was extended into a criminal drug investigation at an earlier
point, when McKaig asked defendant where he was going.
        The trial court denied defendant’s suppression
motion. The court concluded that the detectives possessed

    6
       At the time of defendant’s arguments in the trial court, as well as his
opening brief on appeal, Oregon followed the “unavoidable lull” doctrine, which
permitted officers to ask investigatory questions unrelated to the purpose of a
traffic stop as long as those questions did not delay the processing of a citation
or extend the duration of the stop. State v. Arreola-Botello, 

, 

 (2019). However, in Arreola-Botello, the Supreme Court determined that
the unavoidable-lull doctrine did not comport with Article I, section 9. It 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.
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.” 

.
    7
       Defendant offered the court three arguments for when the stop was
extended into a criminal investigation: first, when the detectives initiated the
traffic stop; in the alternative, when the detectives asked defendant about his
travel plans; and lastly, when the detectives requested the drug-detection dog.
Defendant only reiterates the second argument on appeal.
Cite as 

 (2021)                              461

reasonable suspicion of drug activity when they extended
the traffic stop into a criminal investigation. The court went
through the factors it considered in its analysis. First, the
court concluded that the detectives’ earlier surveillance of
defendant’s house supported a reasonable belief and inference “that a drug deal was going on” and that defendant was
“involved in the drug trade.” Second, the court considered
the purported “heat check,” which the court found was “suspicious activity” that “[t]he average driver doesn’t do … to
try to avoid somebody. People involved in the drug trade, do
that.” Next the court considered the foil rolls that Sutten
observed in defendant’s car, because “it’s highly unusual to
have little packet-sized pieces of foil in a car loose around,
more than one. But not if drugs are involved. It would be
very typical[.]” Finally, the court also considered defendant’s
response that he was headed to the Wildhorse Casino, “a
place where drug users and dealers meet up to bring drugs
back … to Union County.” Considering the above factors
in totality, the court concluded that “at that point [McKaig]
had reasonable suspicion that there may, in fact, be drugs in
this car, or indications of drug dealing in the car.” The court
made no mention of several factors that the state had raised
in support of its reasonable suspicion arguments: defendant’s lack of luggage but purported overnight trip plans,
his extreme nervousness, and his responses when asked
about drugs.

         Following the trial court’s ruling, defendant entered
a conditional guilty plea, reserving the right to appeal the
court’s denial of his motion to suppress. This timely appeal
resulted.

         On appeal, defendant assigns error to the trial
court’s denial of his motion to suppress evidence. Defendant
reiterates his argument that McKaig unlawfully extended
the traffic stop and began a criminal investigation, absent
reasonable suspicion of drug activity, when he questioned
defendant about his travel plans. As a result, defendant
argues, all evidence obtained as a result of that unlawful
seizure—here, evidence discovered when defendant, his
car, and his phone were subsequently searched—must be
suppressed.
462                                              State v. Mock

         In response, the state submits three separate arguments. First, the state argues that McKaig’s question about
defendant’s travel plans was related to the traffic stop and
defendant’s suspended driving privileges, and thus did not
extend the stop. Second, the state argues that, even if the
travel question was unrelated to the traffic stop, the resulting extension was nevertheless supported by reasonable
suspicion of drug activity. Third, the state argues that, even
if the travel question was impermissible, suppression is not
warranted because the latter investigation and discovery of
evidence was primarily the result of Sutten’s observation of
the aluminum foil rolls, not defendant’s answer to the travel
question. In reply, defendant asserts that the state failed
to preserve its first and third arguments in the trial court
below and that neither argument is appropriate under the
“right for the wrong reason” doctrine.
          We turn to the law that applies to this traffic stop
and resulting criminal drug investigation. Article I, section 9,
protects individuals against unreasonable searches and seizures. When an officer has lawfully stopped a person for a
noncriminal traffic infraction, that officer may only make
those “investigatory inquiries that are reasonably related to
the purpose of the traffic stop or that have an independent
constitutional justification.” State v. Arreola-Botello, 

, 

 (2019). Determining a person’s identity, issuing a citation, and verifying driving privileges are
all reasonably related to the purpose of a traffic stop, so long
as those activities are not unreasonably lengthy. State v.
Watson, 

, 

 (2013). An officer may
expand a traffic stop into a criminal investigation if that
officer has reasonable suspicion of criminal activity. State v.
Huffman, 

, 

 (2015), rev den,

 (2016). Reasonable suspicion exists when an officer subjectively believes that the person has committed or
is about to commit a specific crime or type of crime, and
that belief is objectively reasonable in light of the totality
of the circumstances known to the officer at the time of the
stop. Maciel-Figueroa, 

. An officer can draw
on his or her training and experience to make reasonable
inferences under the circumstances, but “training and experience alone are not an adequate substitute for objectively
Cite as 

 (2021)                                463

observable facts.” State v. Oller, 

, 

 (2016), rev den, 

 (2017). “Reasonable
suspicion does not require that the facts as observed by the
officer conclusively indicate illegal activity but, rather, only
that those facts support the reasonable inference of illegal
activity by that person.” State v. Dampier, 

, 

 (2011) (internal quotation marks omitted).
          We first address the state’s argument that McKaig’s
travel plan question was reasonably related to the purpose
of the traffic stop. On appeal, the state argues that McKaig’s
question as to where defendant was headed was permitted
“to form a plan for ensuring both that defendant was not
likely to re-offend as soon as the encounter ended and that
the vehicle was not left on the side of the freeway.” For example, “by asking about a stopped driver’s travel plans, the
officer can determine whether the driver’s intended destination is close enough that perhaps the driver can be allowed
to drive off the freeway to a location where his vehicle can
more safely be left to wait for a licensed driver to retrieve it.”
         Whatever the merits of that argument, the state
failed to raise it in the trial court. In both a written response
to defendant’s motion to suppress and oral arguments in
the subsequent suppression hearing, the state offered no
argument that the trial court should view McKaig’s travel
question as reasonably related to the initial traffic stop.
Further, neither detective testified that the travel question
was related to the traffic stop, or provided facts from which
that conclusion could be inferred. Rather, their discussion
of the travel question framed it, and its answer, within the
reasonable suspicion inquiry—describing the Wildhorse
Casino as a common drug deal spot and assigning suspicion
to defendant’s claimed overnight plans because he lacked
visible luggage. Unsurprisingly, the court’s ruling denying
defendant’s motion made no mention of the travel question
outside of the role its answer played in the reasonable suspicion analysis.
         We conclude that the record could have developed
differently had the state’s argument been raised in the trial
court. The parties could have elicited testimony from McKaig
about his purpose when he asked defendant about his travel
464                                              State v. Mock

plans, a topic that was not explored on this record but which
is highly relevant to whether the travel question was reasonably related to the traffic investigation. See, e.g., Watson,

 (considering officer’s purpose and motivations in analysis of whether investigatory actions were reasonably related to traffic stop). Had McKaig asserted that
he asked the travel question to help defendant “form a plan”
for getting himself and his vehicle off the interstate legally,
defendant could have challenged that testimony via crossexamination. Because the record could have developed differently had the state’s argument been raised in the trial
court, we decline to consider that argument for the first time
on appeal. See Outdoor Media Dimensions Inc. v. State of
Oregon, 

, 

 (2001) (explaining
that affirmance on an alternative basis not raised in the
trial court as “right for the wrong reason” requires that the
record be materially the same as what would have developed had the alternative basis been raised below).
        We next consider whether McKaig had reasonable
suspicion to transform the initial traffic stop into a criminal drug investigation. Although the trial court made no
express factual findings as to the subjective component of
the reasonable suspicion standard, we presume that the
court implicitly found that McKaig indeed believed defendant was engaged in criminal drug activity. As a result, we
consider only whether that belief was objectively reasonable,
based on the totality of the circumstances known to McKaig
when he extended the stop.
         As a preliminary matter, we must clarify when
McKaig extended the initial traffic stop into a criminal
investigation. Defendant asserts on appeal that the stop
was extended once McKaig had obtained defendant’s documents, ran the necessary checks, and determined defendant’s driving privileges were suspended, yet, rather than
writing a traffic citation or concluding the stop, proceeded to
ask defendant about his travel plans. However, we note that
the trial court concluded that the stop was extended with
reasonable suspicion at a later point, when McKaig asked
defendant whether he had drugs or weapons and requested
the drug-detection dog. We acknowledge that proceedings in
the trial court occurred before the Supreme Court’s ruling
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in Arreola-Botello, which held that all investigative inquiries
during a traffic stop are subject to subject-matter limitations and, if unrelated to the stop, require an independent
constitutional justification. 

. Suffice it to say,
we readily conclude that McKaig expanded the traffic stop
into a criminal drug investigation when he asked defendant
where he was headed as part of his criminal investigation,
rather than to determine how to proceed with the stop or
process any traffic citation. McKaig’s question in that context was not reasonably related to the purposes of the traffic
stop.
         Thus, we consider the totality of the circumstances
known to McKaig at the time that he asked defendant where
he was headed. To review, those circumstances were that
(1) some weeks earlier, McKaig had surveilled defendant’s
home on several nights and observed known drug users visiting defendant’s home for short periods, activity McKaig considered to be consistent with drug dealing; (2) when McKaig
was following defendant on the interstate that night from a
distance of about a mile away, McKaig observed defendant
pull off the interstate to a seemingly empty park parking
lot and leave again within a couple minutes, behavior that
McKaig believed was consistent with a “heat check” maneuver to avoid or discover law enforcement; (3) once defendant
was stopped, McKaig did not observe any luggage in the
vehicle; and (4) defendant appeared to be extremely nervous,
as exhibited by a lack of eye contact, stomach tremors, and
smoking.
         First, McKaig’s observations while surveilling defendant’s home are insufficient alone to establish reasonable
suspicion that defendant was committing a drug crime
when McKaig happened upon defendant driving out of town
some weeks later. We have routinely concluded that lawful
behavior that is nevertheless consistent with buying or selling drugs, such as a defendant’s short visit to a suspected
drug house, does not amount to reasonable suspicion that
the defendant committed a drug crime without more. See
State v. Bertsch, 

, 

 (2012)
(no reasonable suspicion where the defendant was observed
visiting an apartment suspected of drug activity, left the
apartment after “only a short time,” and was accompanied
466                                             State v. Mock

by “a person who was known to associate with drug users
and dealers”); State v. Broughton, 

, 

 (2008), rev dismissed, 

 (2010) (no reasonable suspicion where the defendant visited a suspected drug
house for “no longer than a minute”); State v. Loud, 

, 

, rev den, 

 (1997) (no
reasonable suspicion where the defendant had a brief visit
with a suspected drug dealer in an area known for drug
sales); cf. State v. Barber, 

, 

 (2016) (reasonable suspicion where the defendant left
an apartment detectives were monitoring for heroin dealing, sat in his car and engaged in what detectives called
possible drug activity, drove into the parking lot of a motel
known for drug activity, failed to immediately pull over, and
drove slowly while his passenger fumbled under the seat).
Admittedly, here, defendant was not a visitor but instead the
resident of the suspected drug house. Although defendant’s
repeated receipt of short visits from known drug users at
his house might allow for a slightly stronger inference of
criminal drug activity than the facts presented in Bertsch,
Broughton, or Loud, those observations offer, at most, one
data point in the wider totality of the circumstances. Even
assuming that those facts could support a reasonable suspicion that defendant was engaged in criminal drug activity
when defendant’s house was observed, they cannot support
a reasonable suspicion that defendant was engaged in that
activity when traveling in his car several weeks later.
         The state posits that defendant’s supposed “heat
check” maneuver on the interstate combines with the detectives’ earlier observations at defendant’s house to create reasonable suspicion that defendant was presently engaged in
drug trafficking or related crimes when his car was stopped.
We do not agree, for several reasons. First, as noted, the
several-week gap between the observations at defendant’s
house and defendant’s actions on the night he was stopped
makes any connection between the two strained. Further,
McKaig offered no testimony connecting his observations at
defendant’s home to the later purported “heat check” despite
that temporal gap. Had there been evidence that defendant
met those short-term visitors in his car, for instance, or that
defendant’s passenger was one of those visitors, there might
Cite as 

 (2021)                             467

have been some reason to consider the two observations connected. On this record, however, the only connection between
the two is defendant himself. Second, the fact that defendant
briefly stopped in a state-park parking lot while traveling
on a freeway is not particularly suspicious on its own, or in
combination with the previous observations at defendant’s
home. There are a variety of legitimate reasons why a driver
may choose to briefly leave the interstate and stop in a parking lot that is open to the public before continuing on his
original path of travel. Even assuming that briefly leaving
the freeway was an intentional and purposeful “heat check,”
an individual’s choice to take legal measures to avoid police
interaction is not indicative of any particular criminal activity. See, e.g., State v. Martin, 

, 

 (2014) (“Evidence that a person is in a high-crime
area, is engaged in ambiguous conduct, and appears to want
to avoid police observation does not give rise to reasonable
suspicion to stop the person.”).
         Having concluded that the observations at defendant’s home and defendant’s purported “heat check” do
not support reasonable suspicion of criminal drug activity
either individually or collectively, the remaining factors
known to McKaig when he began investigating defendant
for drugs add little to the analysis. The fact that defendant
was not carrying any visible luggage is entirely meaningless
without the added context of his later statements that he
was headed to the Wildhorse Casino and planned to stay
the night there. And, as we explained earlier, defendant’s
travel plans were not known until McKaig had already
begun investigating defendant for drug crimes. Finally, we
give little weight to McKaig’s observations that, when he
stopped defendant, defendant would not make eye contact,
was having stomach tremors, and was smoking. A defendant’s nervousness carries little weight in the reasonable
suspicion analysis. See, e.g., State v. Taylor, 

, 

 (2020) (“Without a link between defendant’s
nervousness and any fact supporting objectively reasonable
suspicion of drug possession, nervousness, even extreme
nervousness, is relatively meaningless to our reasonable
suspicion analysis.”). Considering the totality of the information known to McKaig at the time he extended the traffic
468                                             State v. Mock

stop into a criminal drug investigation, he did not possess
reasonable suspicion that defendant was presently engaged
in drug trafficking or related crimes.
         We turn to the state’s final argument that, even if
McKaig began a drug investigation absent reasonable suspicion when he asked defendant about his travel plans, any
evidence that the detectives ultimately uncovered was not a
product of that question. The state’s argument is essentially
that the travel destination question was not a but-for cause
of the later discovery of evidence because Sutten’s observation of the visible foil pieces would have led to the same discoveries anyway.
         “When the state has obtained evidence following the
violation of a defendant’s rights under Article I, section 9,
we presume ‘that the evidence was tainted by the violation
and must be suppressed.’ ” State v. Benning, 

, 

 (2015) (quoting State v. Jackson, 

, 

 (2014)). The state may rebut
that presumption by proving that the unlawful conduct was
“independent of, or only tenuously related to the disputed
evidence.” Benning, 

 (internal quotation
marks omitted).
         Whatever the merits of the state’s attenuation
argument, the state failed to raise it in the trial court. In
written and oral arguments opposing defendant’s motion
to suppress, the state offered one argument in response to
defendant’s claim that the drug investigation was unlawful:
that it was lawful because it was supported by reasonable
suspicion of criminal drug activity. The state made no alternative arguments. Had the state raised such an attenuation argument below, a different record would have likely
developed. Importantly, the parties could have elicited testimony from Sutten describing the foil rolls in detail and
placing his conversation with McKaig about the rolls at a
specific point in time. The state’s attenuation argument
assumes that McKaig had grounds to lawfully begin a drug
investigation once he knew about the foil rolls, regardless
of the information about defendant’s travel plans, but the
trial court did not evaluate that question. Thus, we decline
to consider that argument for the first time on appeal. See
Cite as 

 (2021)                                               469

State v. Mullens, 

, 

 (2016)
(“[A]s we have previously held, we will not consider the
state’s lack-of-exploitation argument as an alternative basis
for affirmance where that argument was not made below
and the record may have developed differently had it been
raised.” (Citation omitted.)). Because the state failed to meet
its burden to rebut the presumption that evidence discovered subsequent to a constitutional violation is tainted by
that violation, we conclude that the evidence in this case
must be suppressed.
        In sum, the trial court erred in denying defendant’s
motion to suppress because McKaig did not have reasonable
suspicion to convert the initial traffic stop into a criminal
drug investigation when he asked defendant where he was
headed, a question which was not, on this record, reasonably
related to the initial traffic stop. As a result, all evidence
subsequently discovered as a result of that drug investigation must be suppressed, including evidence discovered when
defendant’s phone was seized and searched. Accordingly,
we reverse and remand this case to the trial court to allow
defendant to withdraw his conditional guilty plea.8
           Reversed and remanded.




    8
      ORS 135.335(3) permits a defendant to withdraw and rescind a conditional
plea “if one of the premises on which the parties entered into the plea agreement is no longer valid.” State v. Tannehill, 

, 

 (2006).
Because defendant’s appeal follows a conditional guilty plea, we do not need to
address whether the trial court’s error was prejudicial. State v. Leach, 

, 

 (2018).