State v. Allen

                                       735

      Submitted February 11, reversed and remanded September 22, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    GUY DAVID ALLEN, JR.,
               aka Guy Allen, aka Guy David Allen,
                      Defendant-Appellant.
                    Coos County Circuit Court
                      18CR61339; A170276
                                    

    Defendant appeals from a judgment convicting him of unlawful possession
of methamphetamine, ORS 475.894(2)(b), and felon in possession of a restricted
weapon, ORS 166.270(2). He challenges the denial of his motion to suppress evidence obtained during a traffic stop. Defendant, who was a passenger, argues that
he was unlawfully seized when officers deployed a drug-detection dog during a
traffic violation investigation for failing to signal before turning. Held: Defendant
was seized for purposes of Article I, section 9, of the Oregon Constitution and the
seizure was unlawful under State v. Arreola-Botello, 

, 

 (2019), because there was no independent constitutional justification for an
investigation by a drug-detection dog. Accordingly, the trial court erred in denying defendant’s motion to suppress.
    Reversed and remanded.



    Martin E. Stone, Judge.
    Larry R. Roloff 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 Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
    POWERS, J.
    Reversed and remanded.
736                                              State v. Allen

         POWERS, J.
         In this criminal case, defendant appeals from a
judgment convicting him of unlawful possession of methamphetamine, ORS 475.894(2)(b), and felon in possession of a
restricted weapon, ORS 166.270(2). He challenges the denial
of his motion to suppress evidence obtained during a traffic
stop. Defendant, who was a passenger, argues that he was
unlawfully seized when officers deployed a drug-detection
dog during a traffic violation investigation for failing to
signal before turning. See State v. Arreola-Botello, 

, 

 (2019) (concluding that investigative
activities and inquiries during a traffic stop must be reasonably related to the purpose of the stop or be supported by an
independent constitutional justification). Because there was
no independent constitutional justification for an investigation by a drug-detection dog, we reverse and remand.
         We review the trial court’s denial of a motion to suppress for legal error, and we are bound by the trial court’s factual findings if there is constitutionally sufficient evidence
in the record to support those findings. State v. Ehly, 

, 

 (1993). To the extent that the trial
court did not make express findings, we will “presume that
the trial court found the facts consistently with its ultimate
conclusion,” if there is evidence to support those findings.
State v. Senin, 

, 

 (2019). We
state the facts in accordance with those standards.
        In January 2018, the South Coast Interagency
Narcotics Team or SCINT was watching a residence in the
Bunker Hill area of Coos County. They saw a white Ford
Expedition leave the residence and contacted Oregon State
Police and K-9 unit of the Coos Bay Police Department to
give them a description of the vehicle and to see if they
would be able to stop the vehicle.
         Troopers Waldrop and Cordes were on duty in the
area and observed the Ford fail to signal continuously for at
least 100 feet before turning right pursuant to ORS 811.335.
Waldrop initiated a stop and spoke to the driver of the Ford.
Defendant was sitting in the passenger seat and there was
another occupant sitting in the back. Meanwhile, Cordes
Cite as 

 (2021)                                                737

approached the Ford from the passenger side, where defendant was sitting. After informing the driver of the reason
for the stop and before going back to his patrol car to begin
processing the citation, Waldrop told all of the occupants,
“For your safety, remain in the vehicle. I’ll be right back
with you.”
          Within two minutes of the stop, Officer Looney of
the Coos Bay Police Department arrived with Katie, a drug-detection dog. During the drug-sniff walk, Katie alerted to
the odor of drugs coming from the vehicle. At that point, the
officers shifted from conducting a stop for a traffic infraction
investigation to a drug investigation. Officers discovered
a substantial quantity of methamphetamine and a small
amount of heroin. Along with the drugs, officers also found a
knife on defendant’s person and he was ultimately charged
with several drug-related crimes, as well as felon in possession of a restricted weapon.
          Defendant moved to suppress all of the evidence
obtained during the stop under Article I, section 9, of the
Oregon Constitution and the Fourth Amendment to the
United States Constitution.1 He argued that the traffic stop
was made without probable cause and that the stop was
“unnecessarily lengthened by the use of the [drug-detection]
dog, which was brought on scene without probable cause.”
Defendant also argued that “from the minute [defendant
was] stopped it was a drug investigation under the guise of
a traffic stop,” and that the law should not allow police to
bring a dog to a traffic violation investigation, when “there
[is] no reason for the dog to be there.” In response, the state
argued that the officers had probable cause to make the stop
   1
     Article I, section 9, provides:
       “No law shall violate the right of the people to be secure in their persons,
   houses, papers, and effects, against unreasonable search, or seizure; and no
   warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or
   thing to be seized.”
   The Fourth Amendment provides:
       “The right of the people to be secure in their persons, houses, papers, and
   effects, against unreasonable searches and seizures, shall not be violated,
   and no Warrants shall issue, but upon probable cause, supported by Oath
   or affirmation, and particularly describing the place to be searched, and the
   persons or things to be seized.”
738                                                             State v. Allen

and that the dog sniff occurred during a lull and did not add
any time to the stop.
         After a hearing, the trial court denied defendant’s
motion to suppress.2 Ultimately, a jury convicted defendant
of unlawful possession of methamphetamine and felon in
possession of a restricted weapon. Defendant subsequently
initiated this appeal.
         On appeal, defendant argues that the officer’s use of
a drug-detection dog was not reasonably related to the reason for the stop, i.e., the failure to signal.3 Relying on Arreola-Botello, defendant further asserts that the “purpose of the
stop was never about a traffic violation and was, from the
beginning, a drug investigation” in which the officers lacked
probable cause or an independent constitutional justification for the search. In response, the state does not address
defendant’s arguments under Arreola-Botello; however, it
asserts that defendant’s argument incorrectly assumes that
“he, as a passenger, was seized when police stopped the car
for a traffic infraction.”
          Article I, section 9, establishes the right to be
secure against “unreasonable search, or seizure.” Because
passengers “in cars that are stopped for traffic violations
are not themselves automatically stopped for purposes of
Article I, section 9,” we start by addressing whether defendant, in this case, was seized. State v. Payne, 

, 

, rev den, 

 (2021). To determine whether police exercised “their authority to detain [a]
passenger, we look to the totality of the circumstances”; that
includes, but is not limited to, “the manner of the stop and
the type of questions or physical acts by the officer.” Id. at
679. Ultimately, if passengers “would understand that the
officer’s show of authority in stopping the driver extended to

    2
      At the suppression hearing, defendant maintained that the driver’s turn
signal had been on for more than 100 feet before turning right, and he presented
testimony from witnesses of that fact. The trial court ultimately found Waldrop’s
testimony more credible. Although defendant challenges the court’s credibility
determination, our conclusion that the trial court erred in denying defendant’s
motion to suppress obviates the need to address that issue.
    3
      Defendant raises two other assignments of error in his opening and supplemental briefs; however, our resolution of defendant’s challenge to the denial of his
motion to suppress obviates the need to address them.
Cite as 

 (2021)                              739

them or that the officer was independently restricting their
movement apart from the stop of the driver,” then the passengers were seized. 

         In this case, Waldrop instructed all of the occupants, including defendant, to stay in the vehicle until he
returned. Under the circumstances of this case, Waldrop’s
command combined with Cordes’s act of coming up to the
passenger side of the vehicle when Waldrop approached the
driver’s side communicated to defendant that the officers’
show of authority extended to him as well. See, e.g., State v.
Backstrand, 

, 

 (2013) (explaining that an officer seizes a person under Article I, section 9,
if the officer conveys to the person “either by word, action,
or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs”).
Accordingly, we conclude that defendant was seized for purposes of Article I, section 9.
          Having determined that defendant was seized, we
turn to whether the seizure was lawful and conclude that
under Arreola-Botello it was not. In Arreola-Botello, 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.” 

. As the court explained,
“[i]t is the justification for the stop that delineates its lawful bounds,” and by “applying subject-matter limitations to
investigative activities and questioning, Article I, section 9,
ensures that officers do not turn minor traffic violations into
criminal investigations.” 

 at 712 n 7, 713.
         In that regard, “absent an independent constitutional justification, a drug-detecting dog … generally cannot, consistent with Article I, section 9, sniff a car for drugs
during a traffic stop.” State v. Soto-Navarro, 

, 

 (2021); see also State v. Escudero, 

, 

 (2021) (concluding that the
deployment of a drug dog eight seconds into a traffic stop
was an unconstitutional investigative action, because the
officer had not “developed any independent constitutional
justification to investigate anything beyond the traffic
740                                              State v. Allen

infraction”). Here, officers deployed a drug-detection dog
during a traffic stop for failing to signal continuously for
at least 100 feet before turning—without articulating any
independent constitutional justification. Moreover, the state
has not identified any theory or pointed us to any facts that,
for purposes of Article I, section 9, would justify the seizure.
Accordingly, the trial court erred in denying defendant’s
motion to suppress.
        Reversed and remanded.