318 ORAPP 431 - State v. Anderson

                                     431

 Argued and submitted June 15, 2021, reversed and remanded March 16, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   ARIN JUDITH ANDERSON,
                       Defendant-Appellant.
                    Crook County Circuit Court
                       18CR43578; A172369

505 P3d 472

Annette C. Hillman, Judge.
Sara F. Werboff, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
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 Mooney, Presiding Judge, and Kamins, Judge, and
Pagán, Judge.*
PER CURIAM
Reversed and remanded.

______________
* Pagán, J., vice DeHoog, J. pro tempore.
432 State v. Anderson

PER CURIAM
Defendant was convicted of unlawful possession
of heroin, ORS 475.854 (2018), and unlawful possession of
methamphetamine, ORS 475.894 (2018).1 She appeals, assigning error to the trial court’s denial of a motion to suppress
evidence.2 We reverse and remand.
Defendant was the passenger in a car that was
ostensibly stopped for using studded tires out of season,
although the true impetus was a tip that the vehicle might
have “illegal drugs” in it. During the course of the stop, officers walked a drug-detection dog around the vehicle. The
dog alerted, eventually leading to the discovery of drugs in
defendant’s possession. The trial court denied defendant’s
motion to suppress the fruits of that search because it found
that deploying the dog did not extend the duration of the
stop. In light of subsequent case law, that reasoning was
plainly erroneous. See State v. McIntyre,

311 Or App 726, 730-31

489 P3d 593

 (2021); State v. Soto-Navarro,

309 Or App 218, 224

482 P3d 150

 (2021) (citing State v. Arreola-Botello,

365 Or 695, 712

451 P3d 939

 (2019)). On remand, the
trial court should consider whether defendant was seized for
purposes of Article I, section 9, of the Oregon Constitution at
the time that the drug-detection dog was deployed. See State
v. Allen,

314 Or App 735, 738-39

497 P3d 777

 (2021); State
v. Payne,

310 Or App 672, 678

487 P3d 413

, rev den,

368 Or 514

 (2021).
           Reversed and remanded.




   1
      Both of those provisions were amended by Ballot Measure 110 (2020). Or
Laws 2021, ch 591, §§ 36, 39. Because the acts at issue occurred in 2018, the
amended provisions do not apply here. Id. at § 47 (effective date is February 1,
2021).
   2
      In light of our disposition, we do not reach defendant’s remaining assignment of error.