441
Argued and submitted November 8, 2021, reversed and remanded
March 23, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
NATALIE LYNN KRIEGER,
Defendant-Appellant.
Lane County Circuit Court
19CR06134; A172683
508 P3d 62
Defendant challenges her convictions for driving under the influence of
intoxicants (DUII), ORS 813.010, and possession of controlled substances, ORS
475.894, raising two assignments of error. She first argues that the trial court
erred in denying her motion to suppress, because, under State v. Arreola-Botello,
365 Or 695,
451 P3d 939 (2019), the investigating officer violated defendant’s
rights under Article I, section 9, of the Oregon Constitution by asking her questions that exceeded the scope of the traffic stop. She also contends that the court
erred by proceeding to a stipulated facts trial in the absence of a written jury
waiver, an error that the state concedes. Held: The Court of Appeals accepted the
state’s concession on the jury waiver issue, and, addressing the suppression issue,
concluded that the trial court erred in denying defendant’s motion to suppress.
Reversed and remanded.
Karrie K. McIntyre, Judge.
Nora Coon, 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 Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
Reversed and remanded.
442 State v. Krieger
ORTEGA, P. J.
Defendant challenges her convictions for one count
of driving under the influence of intoxicants (DUII), ORS
813.010, and one count of possession of controlled substances, ORS 475.894, raising two assignments of error. She
first argues that the trial court erred in denying her motion
to suppress because, under State v. Arreola-Botello, 365 Or
695,
451 P3d 939 (2019), the investigating officer violated
defendant’s rights under Article I, section 9, of the Oregon
Constitution by asking her questions that exceeded the
scope of the traffic stop. She also contends that the court
erred by proceeding to a stipulated facts trial in the absence
of a written jury waiver, an error that the state concedes.
Although we reverse defendant’s convictions on that latter
basis, we also address the suppression issue, which will
arise on remand, and conclude that the trial court erred
in denying defendant’s motion to suppress. Accordingly, we
reverse and remand.
We review the denial of a motion to suppress for
legal error and are bound by the trial court’s factual findings if there is any constitutionally sufficient evidence to
support them. State v. Escudero, 311 Or App 170, 171,
489
P3d 569 (2021).
Officer West pulled defendant over for speeding in a
construction zone and because a preliminary license check
suggested that she did not have a valid operator’s license.
Upon initiating the stop, West informed defendant that
their contact was being recorded and asked her, “[d]o you
live in this area?” and if she had noticed she was in a construction zone. The record reflects that West asked whether
defendant lived in the area because she wanted to know
if defendant was familiar with the construction zone and
the reduced speed. She asked where defendant was coming
from, and defendant said she was coming from court. West
then asked for defendant’s license and proceeded to also ask,
“What are you doing up here?” West next asked defendant,
“[W]here are you coming from today?” and then inquired
if defendant smoked marijuana because West could “smell
a pretty good odor of it.” Defendant replied that she did
not.
Cite as 318 Or App 441 (2022) 443
At the suppression hearing, defense counsel asked
West, “Now, are you asking her where she’s living as part
of a … tool [to assess] if [she] could multitask?” West
responded that she did not know why she “specifically”
asked those questions “right then and there” but acknowledged that “communication is a tool for impairment.” She
affirmed on further cross-examination, however, that her
“question about where [defendant] lives ha[d] nothing to do
about her speeding.” West also testified that defendant’s
answers to her questions inquiring what she was doing in
the area and where she was coming from left West confused.
West found it “odd that defendant kept saying she moved
to Coos Bay and that she was on her way from Roseburg,
yet she was traveling south on the freeway.” Finally, upon
learning that defendant did not have insurance, West asked
if she could see a citation that defendant had in her car,
which revealed that defendant had appeared in court for
possession of methamphetamine.
West continued to ask various questions, both
related and unrelated to the traffic stop, and began to
observe that defendant had a “low and raspy voice, droopy
eyelids, [and] eyelid tremors,” which West believed indicated
that defendant was on the downside of a central nervous
system stimulant. She returned to her car to call defendant’s probation officer and to print the ticket for driving
without a license and insurance. After West resumed contact, defendant eventually admitted to using methamphetamine the day before and consented to field sobriety tests;
West arrested her for DUII after she performed poorly on
the tests. Upon being arrested, defendant admitted to possessing methamphetamine and handed it over to West.
Before trial on the charges of DUII and possession of methamphetamine, defendant moved to suppress
the evidence obtained as a result of the extension of the
scope and duration of the traffic stop to investigate circumstances beyond those that originally gave rise to reasonable
suspicion of a traffic violation. At the suppression hearing,
West testified that she did not detect indicators of impairment when she initially observed defendant speeding. She
acknowledged that the odor of marijuana on its own is not
444 State v. Krieger
an indicator of impairment and admitted that asking about
defendant’s citation was unrelated to the speeding ticket,
but testified that she had already developed reasonable suspicion that defendant was driving while impaired by the
time she returned to her car to write the citation, based on
the smell of marijuana, defendant’s eyelid tremors, droopy
eyelids, and the fact that her voice was low, raspy, and hard
to hear.
The trial court made factual findings consistent
with the above and concluded that West had reasonable
suspicion to investigate DUII at the point that West asked
defendant if she smoked marijuana, based on the physical
characteristics that defendant was displaying, and “in conjunction with [defendant] providing confusing and illogical
responses about where she was travelling from.” The court
found that, “[a]t that point, [West] indicated she had reasonable suspicion that [defendant] was under the influence.” It
also found that “whatever was going on in those seven minutes” that West questioned defendant at the initiation of the
stop “did not unreasonably expand the scope of the stop or
the duration of the stop” and that the “detention was not an
unreasonable period of time.” It determined that none of the
evidence obtained as a result of West’s questions unlawfully
exceeded the scope or duration of the traffic stop, and thus
denied defendant’s motion to suppress.
After the suppression hearing, the court conducted
an oral colloquy to determine that defendant was giving up
her right to a trial freely and voluntarily and with sufficient time to consult her attorney before deciding to proceed.
After a brief stipulated facts trial, the trial court found her
guilty as to both charges.
On appeal, defendant contends that, under Arreola-Botello, officers may not conduct investigative activities or
inquiries beyond the scope of a traffic stop without reasonable suspicion that a specific other crime or type of crime
has been committed. In defendant’s view, West’s initial
questions, including asking defendant what she was doing
in the area, where she was coming from, whether defendant
was staying in the area, and asking to see defendant’s court
citation, were unrelated to the purposes of the traffic stop.
Cite as 318 Or App 441 (2022) 445
Further, defendant argues that, because West did not have
reasonable suspicion of DUII at the point those questions
were asked, West illegally expanded the scope of the stop in
violation of her Article I, section 9, rights. Defendant also
argues that, because the record does not contain a written
waiver of her right to a jury trial, the bench trial was conducted in error and her convictions must be reversed.
The state maintains that the questions were justified by reasonable suspicion of DUII and therefore did not
violate the subject matter limitation in Arreola-Botello. The
state does not assert that the questions defendant takes
issue with are related to the traffic stop; rather, the state
maintains that there was no Article I, section 9, violation
because the questions were justified by reasonable suspicion
of DUII. The state asserts that West’s testimony established
that she immediately observed upon contact with defendant
the physical indicators of impairment, which were alone
sufficient to establish that she had subjective reasonable
suspicion that defendant was driving under the influence
of intoxicants, which was objectively reasonable. Thus,
according to the state, West developed reasonable suspicion
of DUII before asking defendant any questions, even those
that were concededly unrelated to investigating or processing those violations, but that were related to investigating a
possible DUII.
As noted above, the state concedes defendant’s second assignment of error and asserts that we must reverse
defendant’s convictions based on that plain error. We accept
that concession. “There is no waiver of a jury trial unless
that waiver is in writing and, without a waiver, [a] defendant should … be[ ] tried by a jury.” State v. Barber, 343 Or
525, 530,
173 P3d 827 (2007). Thus, a judge errs “in going
to trial at all” absent a written jury waiver.
Id. (emphasis in
original). Further, with respect to that kind of error under
Article I, section 11, “we cannot identify any way in which
an appellate court may elect under ORAP 5.45(1) either to
refuse to recognize the error or, having recognized it, refuse
to correct it.” Id.; see also State v. Bailey,
240 Or App 801,
806 n 4,
248 P3d 442 (2011) (“[T]his particular species of
error is one that is apparent on the face of the record and,
446 State v. Krieger
because of the unique specificity of Article I, section 11, this
court has no discretion to ignore the error, once it is called
to our attention.”). Here, in the absence of a written jury
waiver, we must reverse defendant’s convictions.
We proceed to address defendant’s challenge to
the denial of her motion to suppress, which will arise on
remand. Article I, section 9, 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.” Arreola-Botello, 365 Or at 701.
“[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 complete or reasonably should be completed.” State
v. Watson,
353 Or 768, 778,
305 P3d 94 (2013) (internal quotation marks omitted).
In Arreola-Botello (which was decided after the suppression hearing in this case), the Supreme Court rejected
the unavoidable lull doctrine and held 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.”
365 Or at 712. Therefore, “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.”
Id. 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.”
Id.
Here, we conclude that several of the initial questions that West asked immediately after she stopped defendant’s vehicle were not related to the purpose of the traffic
stop. West had probable cause to believe that defendant had
committed a traffic violation when she observed defendant
speeding in a construction zone and she was permitted to
investigate that infraction along with that of driving without a license. At the outset of the stop, West asked defendant a series of questions: (1) “Do you live in this area?”;
(2) “What are you doing up here?”; (3) “Where are you coming
Cite as 318 Or App 441 (2022) 447
from today?”; and (4) if West could see the citation that was
in defendant’s car. Although West explained that the first
question was related to the traffic stop and whether defendant was familiar with the construction zone, she also testified that the second and third questions “had nothing to do”
with defendant speeding and she did not know “specifically”
why she asked them. West conceded that the fourth question
was not related to the purpose of the traffic stop. Therefore,
nothing in the record establishes that the second, third, and
fourth questions were related to the purpose of the traffic
stop, and we conclude that they were not. Given that conclusion, we must next address whether the nontraffic-stop
questions were justified by reasonable suspicion that defendant was driving under the influence of intoxicants.
As mentioned, the state argues that West had reasonable suspicion that defendant was driving under the
influence of intoxicants before she asked defendant any
questions, based on West’s observations of defendant’s physical impairment. However, the problem with the state’s
argument is that the trial court found, based on West’s testimony, that she had reasonable suspicion of DUII only after
she observed defendant’s physical characteristics of impairment and “in conjunction with [defendant] providing confusing and illogical responses” to West’s questions about where
she was traveling from. (Emphasis added.) That finding is
supported by the record. Thus, West did not have reasonable suspicion that defendant committed a crime separate
from the traffic infractions until after she asked questions
that were not reasonably related to that investigation—that
is, when West asked defendant what she was doing there
and where she was coming from. The trial court’s conclusion that West’s additional questioning did not exceed the
scope or expand the duration of the traffic stop thus was at
odds with the Supreme Court’s decision in Arreola-Bottelo.
Id. at 712; see also State v. McBride, 303 Or App 292, 294-96,
463 P3d 611 (2020) (accepting state concession that the trial
court erred in denying defendant’s motion to suppress under
the new rule announced in Arreola-Bottello, “[b]ecause
[the officer’s] inquiry regarding drugs was not reasonably
related to the purpose of the traffic stop, and did not have
an independent constitutional justification, it violated the
448 State v. Krieger
subject-matter limitation that Article I, section 9, imposes
on investigative inquiries during an ongoing seizure”).
Because West asked questions unrelated to the traffic stop
before she developed reasonable suspicion that defendant
was driving under the influence of intoxicants and she did
not have an independent constitutional justification for that
further inquiry, her questions violated the subject-matter
limitation that Article I, section 9, imposes on investigative
inquiries during an ongoing seizure.
We conclude that all of the evidence obtained as a
result of West’s unlawful questions to defendant, including
the subsequent field sobriety tests, defendant’s statements,
and the methamphetamine, must be suppressed because
they were the product of the unconstitutional conduct. See
Arreola-Bottelo, 365 Or at 714 (recognizing that generally
“evidence will be suppressed if the evidence was the product
of an unconstitutional act”); McBride,
303 Or App at 296
(stating the same).
Reversed and remanded.
