588
Argued and submitted October 27, 2021, reversed and remanded
March 15, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
HASSAN SALEH MUHSEN GABR,
Defendant-Appellant.
Washington County Circuit Court
19CR52323; A173392
527 P3d 49
Defendant appeals a judgment of conviction for commercial sexual solicitation, ORS 167.008. He assigns error to the trial court’s denial of his motion to
suppress all evidence obtained during a traffic stop. Defendant contends that
police unlawfully expanded the traffic stop into a criminal investigation by calling for a drug-detection dog at the initiation of the traffic stop without objectively
reasonable suspicion of illegal drug activity. The state concedes that the officer’s
call for a drug-detection dog was illegal, but the state argues for the first time
that defendant’s inculpatory statement (the focus of the suppression motion) was
sufficiently attenuated from the initial illegality because of intervening lawful
acts and the lack of exploitation by the officers of the initial illegality. Held: The
trial court erred. The Court of Appeals agreed with and accepted the state’s
concession that there was not objectively reasonable suspicion for the officer to
call for a drug-detection dog at the outset of the traffic stop. Further, the court
declined to consider the state’s attenuation argument because the record might
have developed differently below had defendant been on notice that the state was
arguing attenuation.
Reversed and remanded.
Oscar Garcia, Judge.
Bruce A. Myers, 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.
Cite as 324 Or App 588 (2023) 589
ORTEGA, P. J.
Reversed and remanded.
590 State v. Gabr
ORTEGA, P. J.
Defendant appeals a judgment of conviction for
commercial sexual solicitation, ORS 167.008. He assigns
error to the trial court’s denial of his motion to suppress
all evidence obtained during the traffic stop. Defendant contends that police unlawfully expanded a traffic stop into a
criminal investigation by calling for a drug-detection dog
at the initiation of the traffic stop without objectively reasonable suspicion of illegal drug activity. The state concedes
that the officer’s call for a drug-detection dog was illegal, but
the state argues for the first time, that defendant’s inculpatory statement (the focus of the suppression motion) was
sufficiently attenuated from the initial illegality because of
intervening lawful acts and the lack of exploitation by the
officers of the initial illegality. Defendant replies that we
should not consider the state’s attenuation argument, and,
regardless, the argument fails on the merits. We agree with
defendant that there was not objectively reasonable suspicion for the officer to call for a drug-detection dog at the outset of the traffic stop. We also decline to consider the state’s
attenuation argument because it was not made below, and
the record might have developed differently had the state
argued attenuation at the motion hearing. Thus, we conclude that the court erred in denying defendant’s motion to
suppress, and accordingly reverse and remand.
We review the trial court’s ruling denying defendant’s motion to suppress for errors of law. State v. Maciel-Figueroa, 361 Or 163, 165,
389 P3d 1121 (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,
317 Or 66, 75,
854 P2d 421 (1993). We
state the facts consistently with the trial court’s explicit and
implicit findings.
I. FACTS AND PROCEEDINGS BELOW
The solicitation charge against defendant arose
after officers initiated a traffic stop in connection with a
drug investigation that they were conducting at the Eider
Court Extended Stay Hotel. Deputies Bowler and Wilde
were working with other officers to surveil Room 139 at the
hotel.
Cite as 324 Or App 588 (2023) 591
A few days before the stop at issue, a front desk
worker at the hotel reported seeing people enter Room 139
and leave after short periods of time. Based on that information, police stopped the vehicles of the people seen leaving
Room 139, resulting in two drug arrests. On the night in
question, Wilde received information from the same hotel
informant that people had been coming and going from
Room 139 all day, and that defendant had entered the room
and spent less than an hour inside. Wilde shared the information about defendant with Bowler and asked him to stop
defendant’s car and investigate. When Bowler saw defendant’s car leave the hotel parking lot, he followed it and,
about a half mile away, stopped it for a traffic violation. At
that point, Bowler believed that he had reasonable suspicion that defendant had been part of a drug deal. At the
initiation of the traffic stop and before making contact with
defendant, Bowler called for Corporal Akin and his canine
partner, Stark, to come to the scene.
As Bowler approached defendant’s car, he noticed
that “plastic seemed to be either pulled off or moved around”
inside the car. He could see the “non-flush plastic” from outside of the car, and it appeared that the dash, door panels,
and other things were not fitting. Based on his prior experience in drug investigations, those were indications of a
“trap car” or a “stash car” that has hidden compartments to
conceal drugs. Having previously found drugs in stash car
compartments, Bowler suspected that there could be drugs
inside defendant’s car.
Deputy Coon arrived shortly after Bowler stopped
defendant, and Akin and Stark arrived a couple of minutes
after Bowler’s call. After Akin walked Stark around the car,
Stark alerted to narcotic drugs near the open window on
the driver’s side and had the same alert response after a
second pass around the car. Bowler asked defendant to get
out of the car, and Akin searched inside. Akin initially did
not find any “usable quantity of narcotics” inside the car. On
a second search, Akin placed Stark inside the car to see if he
was missing anything or to pinpoint the location of possible
drugs. Stark showed interest in the driver’s seat but did not
come to a full alert. That indicated to Akin that Stark was
reacting to odor there or along the seat.
592 State v. Gabr
While Akin searched the car, Bowler began asking defendant questions, including, “Where were you before
this?” and “Do you have any drugs on you?” Then defendant
granted consent for Bowler to search his person while the
dog searched defendant’s car.
After neither search yielded any drugs, Coon began
interviewing defendant in Bowler’s presence. Coon also
asked defendant where he had been earlier in the day and
what he had been doing for the several hours preceding the
stop. During Coon’s questioning, defendant confessed that
he had received an “erotic massage” at the hotel for $100.
Based on defendant’s statements, Bowler called Wilde to the
scene to continue questioning defendant regarding solicitation. Wilde arrived about five minutes later and ultimately
cited defendant for commercial sexual solicitation.
Before trial, defendant filed a motion to suppress all
evidence discovered in the course of the traffic stop. Relying
on State v. Arreola-Botello, 365 Or 695,
451 P3d 939 (2019),
defendant argued that the police unlawfully expanded
the traffic stop into a criminal investigation unsupported
by reasonable suspicion when (1) Bowler called for a drug-detection dog immediately upon making the traffic stop and
(2) Bowler and Coon continued to question defendant after
searches of his car and his person had produced no drugs.
The state responded that the deputies’ investigative activities during the traffic stop were justified by reasonable suspicion that defendant was involved in illegal drug activity at
the hotel.
The trial court ruled that, under the totality of the
circumstances, the police had reasonable suspicion to investigate illegal drug activity when Bowler called for the drug-detection dog. The court further rejected defendant’s contention that reasonable suspicion of a drug crime had dissipated
when defendant made his inculpatory statements. Rather,
the court opined that, even though no drugs had been found
after searching defendant’s car and person, Coon’s questions
were within the scope of the drug investigation and following up on why the dog had alerted to the odor of narcotics. Thus, the court denied defendant’s motion to suppress
all evidence after Bowler called for the drug-detection dog.
Cite as 324 Or App 588 (2023) 593
Thereafter, in a stipulated facts trial, the court found defendant guilty of the charged offense, and a judgment of conviction was entered.
On appeal, defendant challenges the court’s denial
of his motion to suppress and renews the arguments he
made below. Specifically, defendant argues that under our
case law the purely associational facts known to Bowler
when he called for a drug-detection dog did not give rise
to reasonable suspicion to justify a criminal investigation.
See State v. Bertsch, 251 Or App 128, 134-35,
284 P3d 502
(2012) (concluding that the defendant’s brief presence in a
location associated with drug activity was insufficient to
support an objectively reasonable belief that the defendant
was engaged in drug activity because those facts are “purely
associational”). Alternatively, defendant invokes Arreola-Botello to argue that, “[w]ithout reasonable suspicion of
drug possession, and no new independent constitutional
justification to keep questioning defendant, officers unlawfully expanded the scope of their investigation by continuing
to ask defendant questions after they did not find drugs.”
See
365 Or at 712 (rejecting the “unavoidable lull” doctrine
and concluding that “all investigative activities, including
investigative inquiries, conducted during a traffic stop are
part of an ongoing seizure and are subject to both subjectmatter and durational limitations”).
On appeal, the state concedes that the officer’s call
for a drug-detection dog was illegal but argues, for the first
time, that defendant’s inculpatory statement was sufficiently
attenuated from the initial illegality because of intervening
lawful acts and because the officers did not exploit the initial illegality. First, the state argues that Bowler’s unlawful detention of defendant for the time it took the deputy to
call for the dog was brief and that the investigative activities that followed—the dog’s deployment and Bowler’s and
Coon’s questioning of defendant—were supported by the
necessary reasonable suspicion. Next, the state contends
that the additional information that Bowler observed indicating that defendant’s car was a “trap car” or a “stash car,”
coupled with the information that defendant had been seen
contacting someone in Room 139, gave rise to reasonable
suspicion that defendant had been involved in illegal drug
594 State v. Gabr
activities there. See State v. Barber, 279 Or App 84, 92,
379
P3d 651 (2016) (distinguishing Bertsch and stating that “[a]
stop of a person by a police officer is supported by reasonable suspicion when the officer subjectively believes that the
person has committed or is about to commit a crime and
that belief is objectively reasonable in light of the totality of
the circumstances existing at the time of the stop[;] [t]o be
objectively reasonable, the officer’s suspicion must be based
on specific and articulable facts” (internal citation and quotation marks omitted)).
The state argues further that reasonable suspicion
existed by the time the dog was deployed, triggering a lawful search of the car, and that reasonable suspicion had not
dissipated when the questioning that produced defendant’s
incriminating statements occurred, because Bowler testified
that Akin was still searching the car for drugs when defendant made his statements. The state acknowledges that it
did not make those arguments below and asks us to affirm
defendant’s conviction under the “right for the wrong reason” doctrine. See Outdoor Media Dimensions Inc. v. State of
Oregon, 331 Or 634, 659-60,
20 P3d 180 (2001) (describing
the “right for the wrong reason doctrine” and noting that
we may only exercise our discretion to affirm if the record
would not have developed in a materially different way had
the argument been made below). The state argues that the
record would not have been materially different had it raised
its attenuation arguments below because the essential question was whether or not there was reasonable suspicion at
each stage of the investigation, which was litigated by the
parties below and addressed in the court’s factual findings
and rulings.
In reply, defendant contends that even with the
“trap car” evidence, the police did not have reasonable suspicion to conduct a criminal investigation. Further, defendant argues that Bowler’s testimony that Akin was still
searching the car for drugs when Coon questioned defendant was contradicted by Coon’s own testimony that he
had questioned defendant after the unsuccessful searches
of defendant and his car. Thus, even if there was reasonable suspicion of drug possession, it had dissipated, and any
Cite as 324 Or App 588 (2023) 595
additional questioning was unlawful under Arreola-Botello.
Alternatively, defendant argues that we should reject the
state’s attenuation argument on procedural grounds and
also on the merits. Defendant argues that the record would
have developed differently because defendant would have
argued that there was a causal link between the initial
illegality and defendant’s statements. Further, defendant
argues, it is impossible to say whether he would have made
his incriminating statements had Bowler not first called for
the drug-detection dog; thus, the ensuing events were inextricably tied to the initial illegality, and defendant’s statements must be suppressed.
II. ANALYSIS
Article I, section 9, of the Oregon Constitution protects individuals against unreasonable searches and seizures. When an officer has lawfully stopped a person for a
noncriminal traffic violation, the “officer is limited to investigatory inquiries that are reasonably related to the purpose
of the traffic stop or that have an independent constitutional
justification.” Arreola-Botello, 365 Or at 712. An officer may
expand a traffic stop into a criminal investigation if that
officer has reasonable suspicion of criminal activity. State v.
Huffman,
274 Or App 308, 312,
360 P3d 707 (2015), rev den,
358 Or 550 (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,
361 Or at 182-83. Reasonable suspicion
must be based upon “specific and articulable facts.”
Id.
As an initial matter, we agree with defendant and
accept the state’s concession that the officer’s call for a drug-detection dog was illegal. See State v. Escudero, 311 Or App
170, 173,
489 P3d 569 (2021) (concluding that as a result
of Arreola-Botello, “in the post-‘unavoidable lull’ landscape,”
the officer’s “call for a drug dog eight seconds into the traffic
stop—before he had made contact with defendant or developed any independent constitutional justification to investigate anything other than the traffic infraction—was an
unconstitutional investigative action”).
596 State v. Gabr
We turn to the state’s argument that the initial illegality was sufficiently attenuated from defendant’s inculpatory statements, and therefore his statements did not
require suppression. See State v. Mock, 310 Or App 454, 468,
485 P3d 295 (2021) (explaining that the state may rebut the
presumption that evidence must be suppressed “by proving
that the unlawful conduct was independent of, or only tenuously related to the disputed evidence” (internal citation
and quotes omitted)). The state bears the burden of proof
and persuasion that the violation of a defendant’s rights had
such a tenuous factual link to the disputed evidence that the
unlawful police conduct cannot be properly viewed as the
source of that evidence. State v. Gilkey,
317 Or App 752, 762,
505 P3d 1029 (2022).
In this case, the state’s attenuation argument was
not made below. Before we may exercise our discretion to
affirm a trial court’s ruling on an alternative basis, we must
first determine whether the following three criteria exist:
the facts of record must be sufficient to support the alternative basis for affirmance, the trial court’s ruling must be
consistent with that view of the evidence, and the record
must be materially the same as the one that would have
developed had the prevailing party raised the alternative
basis for affirmance below. Outdoor Media Dimensions Inc.,
331 Or at 659-60.
Even assuming, without deciding, that the record
below meets the first two criteria, we are not persuaded that
the record would have been materially the same had the
state argued attenuation below. During the motion hearing,
the state focused solely on arguing that the officers’ actions
were lawful at each stage of the stop and ensuing investigation. Thus, defendant had no notice or opportunity to
challenge the state’s theory that any initial illegality was
sufficiently attenuated from defendant’s inculpatory statements. Now, defendant argues that he was deprived of the
opportunity to present evidence on the causal connection
between the initial illegality and defendant’s inculpatory
statements. We agree and, thus, decline to address the
state’s attenuation argument because there were questions
as to how the record might have developed differently or
what inferences the trial court might have drawn from the
Cite as 324 Or App 588 (2023) 597
record. Cf. Escudero,
311 Or App at 174 (declining to consider the state’s alternative basis for affirmance where the
record may have developed differently with respect to the
exploitation analysis involving the fact-specific question of
the defendant’s voluntary consent to search the car with a
drug dog); Mock,
310 Or App at 464 (rejecting the state’s
attenuation argument because the purpose or lawfulness of
the officer’s questioning was not fully explored below but the
topic was “highly relevant to whether the travel question
was reasonably related to the traffic investigation”); State v.
Najar,
287 Or App 98, 109-10,
401 P3d 1205 (2017) (declining
to consider the state’s attenuation argument as an alternative basis to affirm because, “[a]t a minimum, [the defendant]
might have chosen to testify about how the initial illegal
seizure contributed to his ultimate consent and admission
to possessing drugs” and therefore might have created a different record below had the state raised the issue). Given
the foregoing, we presume that defendant’s statements were
tainted by the initial violation and should have been suppressed. State v. Jackson,
268 Or App 139, 151,
342 P3d 119
(2014) (“Whenever the state has obtained evidence following
the violation of a defendant’s Article I, section 9 rights, it is
presumed that the evidence was tainted by the violation and
must be suppressed.” (Citing State v. Unger,
356 Or 59, 84,
333 P3d 1009 (2014).)). Thus, we conclude that the trial court
erred in denying defendant’s motion to suppress.
Reversed and remanded.
