[177]*177DEITS, J.
Defendant appealed from his convictions for possession and distribution of a controlled substance, ORS 475.992, arguing that the trial court erred in denying his motion to suppress. We affirmed the trial court’s denial of the motion, 126 Or App 22, 867 P2d 520 (1994). The Supreme Court has remanded for reconsideration, State v. Aguilar, 321 Or 378, 899 P2d 690 (1995), in the light of State v. Dominguez-Martinez, 321 Or 206, 895 P2d 306 (1995). We reverse and remand.
On June 4, 1988, Officer Kelley saw defendant get into a car parked in front of what he believed to be an operating drug house on Roselawn Street. As the car pulled away from the curb, Kelley observed a black man, whom he believed to be Stephens, the reputed operator of the drug house, jog from the area where the car had been parked, up the stairs, and into the suspected drug house. He did not see any contact between the two men.
About five weeks earlier, on April 29, 1988, Kelley and Officer Weatheroy had witnessed what they believed was a drug transaction in front of the same house. While in the course of citing and releasing a person for shoplifting at a location near the suspected drug house, Kelley testified that he saw a car pull away from the curb and a person, whom he believed to be Stephens, run into the house from the car. Weatheroy testified that he saw that person get into the car for about a minute and then go back into the house after the car pulled away from the curb. Weatheroy said that based on his observations, it was his belief that a drug transaction had occurred in the car. He also said that he had shared all of his observations at that time with Kelley. Kelley and Weatheroy then followed the car that had pulled away from the curb and stopped it for a traffic violation. They found controlled substances in the car, and the driver of the car admitted to Weatheroy that he had sold cocaine and heroin to Stephens at the house on Roselawn.
After watching the events of June 4, Kelley followed defendant’s car. Defendant appeared to be in a hurry and twice failed to signal before making turns. Kelley then stopped defendant. He testified that he stopped defendant [178]*178for a traffic violation, as well as to investigate his suspicions that a drug transaction had occurred at the Roselawn house. Kelley asked defendant for his driver’s license and a bill of sale for the car. Defendant provided both. Kelley then asked defendant: “Do you have any drugs on you or in your vehicle?” Defendant responded: “I don’t think so.” He then asked for and obtained defendant’s consent to search his person and the vehicle.1 After obtaining consent, Kelley requested a cover car and, while he waited for it to arrive, he searched defendant and found money and a pager. When the other officers arrived, Kelley searched the car and found two baggies of heroin. He then arrested defendant and found another bag of heroin and some marijuana on defendant’s person.
Defendant moved to suppress all of the evidence gained pursuant to the searches of his person and the vehicle. The trial court denied the motion, making the following findings:
“[0]n the date in question Officer Kelley knew, based upon the information given to him by prior citizens’ complaints, including the complaint of the upstairs resident of this particular incident, who was a relative of [Stephens], that the resident — the address on Northeast Roselawn was, in fact, an operating, ongoing drug house; that Officer Kelley was aware of the information disclosed in a prior arrest * * * by Officer Weatheroy, and that Officer Weatheroy had, prior to the date in question, shared that information with Officer Kelley.
“The Court finds that Officer Kelley, based upon his experience, knew on the date in incident of a drug profile pertaining to the delivery of controlled substances, and that drug profile includes a short stay at the residence in the distribution, the delivery is usually done at the door, or just inside the door with a very short stay. Officer Kelley, at the day of the incident, observed the Defendant’s vehicle in the area of and adjacent to the premises on Northeast Rose-lawn. That as the vehicle left the area a gentleman believed to be [Stephens], the operator of the [drug house], left the area of Defendant’s vehicle and approached the residence.
[179]*179“The Court finds that Officer Weatheroy and Officer Kelley followed the Defendant. The Court finds that the Defendant operated his vehicle in a manner indicating that he was in a hurry. The Court finds that the Defendant made turns * * * without the benefit of a signal, as required by the statute. The Court finds that the Defendant was stopped as a result of the traffic infractions occurring in the presence of the officers, the failure to signal.
“The Court finds that Officer Kelley then inquired, ‘Do you have any drugs on you or in your vehicle?’ The Court finds that the Defendant’s response was, 1 don’t think so.’ The Court finds that Officer Kelley asked the Defendant if he would allow himself and the vehicle to be searched; the Court finds that * * * the Defendant’s response was yes, and that the Defendant then stepped out of the vehicle without any request by the officer. * * * The Court finds that the drugs on the person of the Defendant were found pursuant to his consent to be searched.”
Defendant argues that the trial court’s denial of his motion to suppress was error, because Kelley exceeded the permissible scope of a traffic stop when he asked defendant about drugs and for consent to search for drugs. Defendant also argues that Kelley lacked a reasonable suspicion to believe that defendant was involved in a drug transaction that would justify stopping defendant and that his consent to search was involuntary.
In our original opinion in this case, State v. Aguilar, 126 Or App 22, 28, 867 P2d 520 (1994), we concluded that Kelley’s questioning of defendant about drugs and requesting consent to a search for drugs was permissible even though the inquiry occurred during a stop for a traffic infraction. We ultimately concluded that defendant’s consent was voluntary, and that, therefore, the trial court properly denied defendant’s motion to suppress. Id. Consequently, we considered it unnecessary to determine whether Kelley had a reasonable suspicion to stop defendant for drug offenses.
Subsequently, in State v. Dominguez-Martinez, the Supreme Court held that ORS 810.410 “defines the parameters of police authority to detain and investigate during a traffic stop.” 321 Or at 212. The court explained:
[180]*180“[I]t is clear that, under ORS 810.410, a police officer has authority to stop a vehicle and detain the occupants in order to investigate a traffic infraction that he or she has witnessed. It is also clear, however, that an officer who stops a person for a traffic infraction may investigate only that infraction, unless the state can point to some basis other than the traffic infraction to broaden the scope of the investigation” Id. (emphasis supplied; footnote omitted).
Free access — add to your briefcase to read the full text and ask questions with AI
[177]*177DEITS, J.
Defendant appealed from his convictions for possession and distribution of a controlled substance, ORS 475.992, arguing that the trial court erred in denying his motion to suppress. We affirmed the trial court’s denial of the motion, 126 Or App 22, 867 P2d 520 (1994). The Supreme Court has remanded for reconsideration, State v. Aguilar, 321 Or 378, 899 P2d 690 (1995), in the light of State v. Dominguez-Martinez, 321 Or 206, 895 P2d 306 (1995). We reverse and remand.
On June 4, 1988, Officer Kelley saw defendant get into a car parked in front of what he believed to be an operating drug house on Roselawn Street. As the car pulled away from the curb, Kelley observed a black man, whom he believed to be Stephens, the reputed operator of the drug house, jog from the area where the car had been parked, up the stairs, and into the suspected drug house. He did not see any contact between the two men.
About five weeks earlier, on April 29, 1988, Kelley and Officer Weatheroy had witnessed what they believed was a drug transaction in front of the same house. While in the course of citing and releasing a person for shoplifting at a location near the suspected drug house, Kelley testified that he saw a car pull away from the curb and a person, whom he believed to be Stephens, run into the house from the car. Weatheroy testified that he saw that person get into the car for about a minute and then go back into the house after the car pulled away from the curb. Weatheroy said that based on his observations, it was his belief that a drug transaction had occurred in the car. He also said that he had shared all of his observations at that time with Kelley. Kelley and Weatheroy then followed the car that had pulled away from the curb and stopped it for a traffic violation. They found controlled substances in the car, and the driver of the car admitted to Weatheroy that he had sold cocaine and heroin to Stephens at the house on Roselawn.
After watching the events of June 4, Kelley followed defendant’s car. Defendant appeared to be in a hurry and twice failed to signal before making turns. Kelley then stopped defendant. He testified that he stopped defendant [178]*178for a traffic violation, as well as to investigate his suspicions that a drug transaction had occurred at the Roselawn house. Kelley asked defendant for his driver’s license and a bill of sale for the car. Defendant provided both. Kelley then asked defendant: “Do you have any drugs on you or in your vehicle?” Defendant responded: “I don’t think so.” He then asked for and obtained defendant’s consent to search his person and the vehicle.1 After obtaining consent, Kelley requested a cover car and, while he waited for it to arrive, he searched defendant and found money and a pager. When the other officers arrived, Kelley searched the car and found two baggies of heroin. He then arrested defendant and found another bag of heroin and some marijuana on defendant’s person.
Defendant moved to suppress all of the evidence gained pursuant to the searches of his person and the vehicle. The trial court denied the motion, making the following findings:
“[0]n the date in question Officer Kelley knew, based upon the information given to him by prior citizens’ complaints, including the complaint of the upstairs resident of this particular incident, who was a relative of [Stephens], that the resident — the address on Northeast Roselawn was, in fact, an operating, ongoing drug house; that Officer Kelley was aware of the information disclosed in a prior arrest * * * by Officer Weatheroy, and that Officer Weatheroy had, prior to the date in question, shared that information with Officer Kelley.
“The Court finds that Officer Kelley, based upon his experience, knew on the date in incident of a drug profile pertaining to the delivery of controlled substances, and that drug profile includes a short stay at the residence in the distribution, the delivery is usually done at the door, or just inside the door with a very short stay. Officer Kelley, at the day of the incident, observed the Defendant’s vehicle in the area of and adjacent to the premises on Northeast Rose-lawn. That as the vehicle left the area a gentleman believed to be [Stephens], the operator of the [drug house], left the area of Defendant’s vehicle and approached the residence.
[179]*179“The Court finds that Officer Weatheroy and Officer Kelley followed the Defendant. The Court finds that the Defendant operated his vehicle in a manner indicating that he was in a hurry. The Court finds that the Defendant made turns * * * without the benefit of a signal, as required by the statute. The Court finds that the Defendant was stopped as a result of the traffic infractions occurring in the presence of the officers, the failure to signal.
“The Court finds that Officer Kelley then inquired, ‘Do you have any drugs on you or in your vehicle?’ The Court finds that the Defendant’s response was, 1 don’t think so.’ The Court finds that Officer Kelley asked the Defendant if he would allow himself and the vehicle to be searched; the Court finds that * * * the Defendant’s response was yes, and that the Defendant then stepped out of the vehicle without any request by the officer. * * * The Court finds that the drugs on the person of the Defendant were found pursuant to his consent to be searched.”
Defendant argues that the trial court’s denial of his motion to suppress was error, because Kelley exceeded the permissible scope of a traffic stop when he asked defendant about drugs and for consent to search for drugs. Defendant also argues that Kelley lacked a reasonable suspicion to believe that defendant was involved in a drug transaction that would justify stopping defendant and that his consent to search was involuntary.
In our original opinion in this case, State v. Aguilar, 126 Or App 22, 28, 867 P2d 520 (1994), we concluded that Kelley’s questioning of defendant about drugs and requesting consent to a search for drugs was permissible even though the inquiry occurred during a stop for a traffic infraction. We ultimately concluded that defendant’s consent was voluntary, and that, therefore, the trial court properly denied defendant’s motion to suppress. Id. Consequently, we considered it unnecessary to determine whether Kelley had a reasonable suspicion to stop defendant for drug offenses.
Subsequently, in State v. Dominguez-Martinez, the Supreme Court held that ORS 810.410 “defines the parameters of police authority to detain and investigate during a traffic stop.” 321 Or at 212. The court explained:
[180]*180“[I]t is clear that, under ORS 810.410, a police officer has authority to stop a vehicle and detain the occupants in order to investigate a traffic infraction that he or she has witnessed. It is also clear, however, that an officer who stops a person for a traffic infraction may investigate only that infraction, unless the state can point to some basis other than the traffic infraction to broaden the scope of the investigation” Id. (emphasis supplied; footnote omitted).
On reconsideration, in the light of Dominguez-Martinez, we conclude that Kelley lacked authority, based solely on his belief that defendant had committed a traffic infraction, to ask defendant about drugs or request his consent to a search for drugs.2 However, under Dominguez-Martinez, if Kelley had “some basis” to believe that defendant had committed a drug-related crime, it would have been permissible [181]*181for him to broaden the scope of the investigation to include his actions here. The state contends that, based on his observations of the activities at the Roselawn house, Kelley had a reasonable suspicion that defendant had committed a drug-related crime, thereby justifying his inquiry.
As a preliminary matter, we conclude that reasonable suspicion that a defendant has committed illegal acts, other than a traffic infraction, is the proper standard for permitting an officer to broaden the scope of an investigation during the course of a traffic stop. We recognize that there is dictum in the Supreme Court’s opinion in Dominguez-Martinez that might he read to suggest that the proper standard to justify the expansion of the investigation is probable cause. The court stated:
“The state argued that, notwithstanding ORS 810.410, the trooper’s request for consent to search was authorized by the general statute empowering the Oregon State Police to enforce all criminal laws, ORS 181.030. That argument ignores this court’s construction of ORS 810.410 in Porter as both a specific grant of authority and a specific limitation on authority to stop and detain a motorist in order to investigate a traffic infraction. Absent some further development within the scope of the traffic stop, such as the observation of evidence that provides probable cause to suspect criminal activity, the specific grant and limitation of authority is a legislatively created closed loop, fully defining the process for stopping and detaining a motorist for the purpose of investigating a traffic infraction.” Dominguez-Martinez, 321 Or at 213-14, n 7 (emphasis supplied); but see id. at 213, n 6 (noting that there was no evidence that the officer had either probable cause or reasonable suspicion to believe that the defendant had committed a crime).
We do not believe, however, that the appropriate standard for taking action in excess of the proper scope of a traffic infraction investigation is probable cause. Under ORS 131.615, an officer may stop a person and make a reasonable inquiry based on reasonable suspicion to believe that the person has engaged in illegal activity. Given that fact, there is no reason why the level of suspicion necessary to expand an investigation during the course of a traffic stop should be any higher. The level of suspicion should not be elevated just [182]*182because the suspect is stopped for a traffic infraction or because the information giving rise to the suspicion is obtained during the course of a lawful traffic stop. Accordingly, if Kelly had information providing reasonable suspicion that defendant had committed a crime, other than a traffic offense, at the time that he stopped him for the traffic infraction or if he obtained information during the course of the traffic stop that would support a reasonable suspicion that defendant had committed a crime, an inquiry regarding that crime would be permissible.
Reasonable suspicion is defined by ORS 131.615 as “a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts.” The standard is an “objective test of observable facts” and requires the officer “to point to specific and articulable facts that give rise to a reasonable inference that a person has committed a crime.” State v. Ehly, 317 Or 66, 80, 854 P2d 421 (1993).
Applying that standard, we conclude that Kelley did not have information providing a reasonable suspicion that defendant had engaged in drug-related activities at the Rose-lawn house at the time that he stopped defendant for the traffic infraction or when he began questioning defendant about drugs. The fact that defendant entered a car that was parked in front of a known3 drug house, without more, does not provide reasonable suspicion to believe that he had engaged in a drug transaction there. Kelley did not see defendant approach, enter, emerge from, or even walk away from the drug house. He simply saw him get into a car that was parked in front of the house. The record shows that there were many other homes and legitimate businesses located on and around the block.
In that respect, the facts here are similar to those in State v. Moya, 97 Or App 375, 775 P2d 927 (1989). In that case, two Portland police officers were patrolling near the Arlington Hotel in Old Ibwn. The officers testified that the hotel was nicknamed the “Heroin Hotel,” because it was a [183]*183center of intense drug sales and use. The officers noticed the defendant parked across the street from the hotel and remembered that they had seen her in the area before. As the officers drove by, they saw the defendant looking at something in her lap. When she looked up and saw them, she appeared surprised and seemed to move the object from her lap to her purse. The officers could not see her hands or the object. The officers stopped, seized the defendant’s purse, and found cocaine. The trial court denied the defendant’s motion to suppress the cocaine.
We reversed the trial court, holding that the officers lacked reasonable suspicion to believe that the defendant had engaged in drug related activity:
“Although extensive drug activity may occur in and around the Arlington Hotel, it is located in an area containing many legitimate businesses. Defendant was not seen entering or leaving the hotel; she was simply parked on the public street next to it. There is nothing inherently suspicious about parking in or ‘frequenting’ such an area. The location of defendant’s car and her earlier presence in the area may have assumed heightened significance had the officers noticed any other indications of likely criminal activity. However, the officers did not see any drugs or drug paraphernalia before stopping her. There is nothing remarkable about examining something in one’s hands, appearing startled at a sudden confrontation with the police or denying the suggestion that one is involved in wrongdoing. When all is said and done, [the] police suspected defendant for simply being where she was. That is an insufficient basis for a stop.” Moya, 97 Or App at 378.
Accord State v. Bea, 107 Or App 118, 810 P2d 1328 (1991), rev’d on other grounds 318 Or 220, 864 P2d 854 (1993) (no reasonable suspicion to believe defendant had engaged in drug transaction based on fact that he parked near and approached suspected drug house when officers did not see him enter the house or whether anyone answered the door).
We also do not believe that defendant’s proximity to the Roselawn house combined with Kelley’s belief that the man seen running from the curb into the house was Stephens, the purported operator of the drug house, provided reasonable suspicion to believe that defendant had committed a drug-related offense. Kelley’s identification of the man [184]*184as Stephens was rather indefinite.4 However, even assuming that Kelley reasonably believed that the man running from the curb was Stephens, Kelley’s observation of him running into the drug house from the area where defendant’s car was parked did not provide a reasonable suspicion to believe that defendant had been involved in a drug transaction. There simply was not sufficient information here for Kelley to reasonably suspect that a drug transaction had actually taken place.
This is in contrast to our decision in State v. Norman, 66 Or App 443, 674 P2d 626, rev den 296 Or 712 (1984), where there was sufficient information to support a reasonable suspicion that a drug transaction had occurred. There, the officer saw the defendant and another person named Wilson engaged in a conversation outside a Portland restaurant known to be a hangout for drug dealers. The officer saw the defendant hand Wilson “a wad of bills” with his left hand while Wilson placed something in the defendant’s right hand. The defendant then placed his right hand in his front pants pocket. The officer believed that he had witnessed a hand-to-hand sale of narcotics. The officer stopped the defendant, searched him, and found heroin. The trial court denied the defendant’s motion to suppress and we affirmed. We concluded that the fact that the restaurant was a notorious hangout for drug dealers combined with the officer’s observation of the exchange between the defendant and Wilson gave him reasonable suspicion to believe that a drug transaction had taken place.
Here, Kelley testified that he did not observe any interaction between defendant and the suspected operator of the drug house:
“Q. You didn’t see any transaction, then, between [defendant] and the black male?
“A. No.
[185]*185# ‡ ‡ ‡
“Q. [Y]ou didn’t see this black male talk to [defendant]?
“A. I just saw him in the same vicinity.
“Q. Same general area?
“A. Yeah.”
The fact that a suspected drug house operator was in the “same general area” as defendant does not provide a reasonable suspicion to believe that a drug transaction had taken place. We therefore conclude that, under the totality of the circumstances, Kelley lacked a reasonable suspicion to believe that defendant had engaged in a drug-related offense. Thus, under Dominguez-Martinez, Kelley’s questioning of defendant about drugs and his request for consent to a search for drugs during the stop for a traffic infraction was impermissible. Accordingly, the trial court erred in denying defendant’s motion to suppress.
Reversed and remanded.