State v. Sexton

378 P.3d 83, 278 Or. App. 1, 2016 Ore. App. LEXIS 537

• Court: Washington County Circuit Court, Oregon
• Decided: May 4, 2016
• Docket: C120870CR; A152752
• Status: Published

Opinions

ARMSTRONG, P. J.

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, assigning error to the trial court’s denial of her motion to suppress evidence obtained after a drug dog alerted to the presence of drugs in a car that defendant owned in which defendant was a passenger. Defendant argues that she was unlawfully seized under Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution, when the car was stopped and again when a police officer walked a drug dog around the car after both defendant and the driver had refused to consent to a search of the car with the dog. We conclude that, under the totality of the circumstances, the officer’s conduct did not constitute a show of authority under Article I, section 9, as to defendant such that it turned the ongoing traffic stop of the driver into a seizure of defendant. However, based on the Fourth Amendment, we conclude that defendant was unlawfully seized because the police did not articulate a factual basis for the initial traffic stop, which under the Fourth Amendment was an unlawful seizure of defendant. Accordingly, we reverse and remand.

We review the denial of a suppression motion for legal error and defer to the trial court’s findings of fact if there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). Here, the pertinent facts are undisputed.

On the day of the traffic stop, police were watching defendant’s residence for drug-related activity and observed a lot of foot and vehicular traffic coming and going from defendant’s home. Deputy Roque saw defendant get into a car as a passenger and, after following the vehicle, observed a traffic violation. Roque relayed that information to Sergeant Cardinal. Cardinal also observed an “equipment violation” on the car and stopped the car for both violations.

Deputy Dipietro arrived about 30 seconds after the initial stop, just as Cardinal was returning to his car to run the driver’s information. On his arrival, Dipietro approached the passenger side of the car because he knew defendant from prior contacts, identified himself, and asked if he could search the car using his drug dog. Defendant told Dipietro that the car was hers and refused to consent to a search. The driver also refused to consent to a search. Dipietro then retrieved his dog and started a drug-sniff walk of the.dog around the car, starting at the passenger-side headlight and moving counter-clockwise to the driver’s door, where the dog alerted to the odor of drugs in the car. Dipietro then returned the dog to his patrol car.

By that point, Deputy Pelletteri had arrived. Pelletteri asked defendant to get out of the car, based on Dipietro having told him that the drug dog had alerted. As defendant got out of the car and walked over to one of the patrol cars, Pelletteri heard something hit the ground. He saw a syringe at defendant’s feet that had not been there before and, unprompted, defendant said, “It’s not mine.” The syringe tested positive for methamphetamine.

Before trial, defendant moved to suppress all evidence obtained after the traffic stop, including the syringe. At the hearing on the suppression motion, Cardinal testified about his stop of defendant’s car:

“[PROSECUTOR]: [W]as Deputy A1 Roque involved [in the surveillance of defendant’s home]?

“ [CARDINAL]: Yes, he was.

“[PROSECUTOR]: Did he relay to you that he observed a traffic violation of some kind?

“[CARDINAL]: He did.

“[PROSECUTOR]: And at some point was a decision made to make a stop on that vehicle?

“[CARDINAL]: Yes, there was.

“[PROSECUTOR]: Did you personally observe your own traffic violation prior to making the stop of that vehicle?

“[CARDINAL]: Correct. I observed an equipment violation.”

Roque did not testify at the hearing, and Cardinal did not provide any further testimony about the factual basis for his stop of defendant’s car, except to confirm that the traffic violations were the only basis for the stop. The trial court denied defendant’s motion to suppress, concluding that the officers had probable cause to stop the car and did not unlawfully extend that stop with the drug dog.

On appeal, defendant argues that she was unlawfully seized under both Article I, section 9, and the Fourth Amendment and, thus, her suppression motion should have been granted. We turn first to defendant’s arguments under Article I, section 9. See Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981) (“The proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim.”).

Defendant argues that she was unlawfully seized under Article I, section 9, both at the time of the initial stop of the car and at the time that Dipietro began to walk the drug dog around her car. Defendant argues that she was seized at the time of the initial stop because Cardinal stopped the car for an equipment violation, which can be a violation for both an owner and a driver. See, e.g., ORS 815.220(1). As a result, she asserts that “a reasonable owner would not feel free to leave when an officer pulls the car over.” Defendant further argues that she was seized at the time of the dog sniff. Relying on State v. Mathis, 232 Or App 286, 222 P3d 39 (2009), defendant argues that, when Dipietro retrieved his dog after defendant had refused consent to search with the dog, no objectively reasonable person would have believed that he or she was free to leave pending the arrival of the drug dog.

We review for legal error whether a police officer’s interaction with an individual amounts to an unlawful seizure under Article I, section 9. State v. Smith, 252 Or App 518, 519, 287 P3d 1210 (2012). The Oregon Supreme Court has divided police-citizen encounters into three categories— “mere conversation,” which is a noncoercive encounter with police; “stops,” which involve a temporary restraint on a person’s liberty; and “arrests,” which involve a restraint on a person’s liberty and a step toward charging a person with a crime. State v. Ashbaugh, 349 Or 297, 308-09, 244 P3d 360 (2010). Stops and arrests require justification to be lawful under Article I, section 9, while mere conversation does not. Id. “The thing that distinguishes ‘seizures’—that is, ‘stops’ and ‘arrests’—from encounters that are ‘mere conversations’ is the imposition, either by physical force or through some ‘show of authority,’ of some restraint on the individual’s liberty.” Id. at 309. The test is an objective one:

“A ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.”

Id. at 316 (emphasis omitted).

As a starting point, defendant was not seized under Article I, section 9, when Cardinal stopped the car by reason of her being a passenger in the car or her being the owner of the car pulled over for an equipment violation. Under Article I, section 9, passengers in a car stopped by police “without more, have not been ‘seized’ as a constitutional matter.” State v. Thompkin, 341 Or 368, 377, 143 P3d 530 (2006); see also State v. Clemons, 267 Or App 695, 698, 341 P3d 810 (2014) (“Under Article I, section 9, ‘[p]assengers in a stopped vehicle—whether lawfully or unlawfully stopped— are not seized merely by virtue of their status as passengers.’” (Quoting State v. Ross, 256 Or App 746, 754, 304 P3d 759 (2013).)). A passenger is seized only when there is the imposition, either by physical force or through some show of authority, of some restraint on that individual’s liberty. Ross, 256 Or App at 752. Here, there was no such show of authority toward defendant at the time of the initial stop. After initiating the stop, Cardinal asked the driver for his identification and proceeded to run that information through dispatch. Nothing in the record indicates that Cardinal interacted with defendant at that time or told defendant or the driver that he was investigating an equipment violation on the car. Thus, the fact that he was investigating an equipment violation on a car owned by defendant is not a “show of authority” as to defendant because no officer “convey[ed] * * * either by word, action, or both that [defendant was] not free to terminate the encounter.” State v. Backstrand, 354 Or 392, 401, 313 P3d 1084 (2013).

For defendant to have been seized, the police must have made a “show of authority” after the initial traffic stop that was constitutionally significant as directed at defendant. State v. Sherman, 274 Or App 764, 771, 362 P3d 720 (2015). Thus, the question before us on these facts is whether Dipietro seized defendant after the stop, but before the drug dog alerted to the presence of drugs in the car—at which point defendant does not dispute that the officers had justification to detain her. Defendant argues that she was unlawfully seized when Dipietro started to walk the dog around the car after she refused to consent to a search of the car by the drug dog. We conclude that defendant was not seized under Article I, section 9, at that point.

The Supreme Court has explained that police inquiries or requests for cooperation, by themselves, are not searches or seizures under Article I, section 9. Backstrand, 354 Or at 403; see also State v. Rodgers/Kirkeby, 347 Or 610, 622, 227 P3d 695 (2010) (“[P]olice inquiries during the course of a traffic stop (including requests to search a person or vehicle) are not searches and seizures and thus by themselves ordinarily do not implicate Article I, section 9”). Rather the officer’s conduct must be “something more” than an inquiry or request for cooperation. “The ‘something more’ can be such things as the content or manner of questioning, or the accompanying physical acts by the officer, if those added factors would reasonably be construed as a ‘threatening or coercive’ show of authority requiring compliance with the officer’s request.” Backstrand, 354 Or at 403.

Here, Dipietro asked defendant for her consent to search the car with the drug dog. In response, both she and the driver refused to consent to a search. Dipietro did not further pressure either occupant of the vehicle for consent, or engage them in further conversation. There was nothing about the inquiry that Dipietro made of defendant that sets it apart from the types of verbal inquires made during stops that do not implicate Article I, section 9. See, e.g., Ashbaugh, 349 Or at 316-17 (officer asking the defendant what was in her purse and whether he could search her purse was not a seizure of the defendant).

The only thing “more” that occurred here is that Dipietro retrieved his dog and proceeded to walk it around the car in which defendant was seated. However, the record reflects that Dipietro started at the front of the car and then proceeded to walk the dog counter-clockwise over to the driver’s door, where the dog alerted. At that point, Dipietro returned the dog to his patrol car. Dipietro did not direct defendant to stay in the car (or to leave), never had the dog in front of the door that defendant would have used to leave, and, at all times, was moving the dog further away from where defendant was seated in the car. Nothing in the record suggests that any of the officers’ tone, manner, or conduct was threatening or coercive toward defendant or otherwise elevated the encounter to the level of a seizure by conveying to defendant that the officers would not allow her to leave. We thus conclude that Dipietro’s request to search the car with the dog and the actual drug sniff that occurred would not lead a reasonable person to believe that Dipietro had intentionally and significantly deprived defendant of liberty or freedom of movement.¹

Defendant’s reliance on Mathis as support for a contrary conclusion is misplaced. That case involved coercive circumstances that are not present here. In Mathis, the defendant was a passenger in a car that was pulled over for traffic violations. After the driver was arrested on suspicion of driving under the influence of intoxicants, a police officer asked the defendant to get out of the car so that they could search it. Once outside the car, the officer asked the defendant if she had drugs on her and if he could frisk her. The defendant refused the request but nonetheless turned out her pockets for the officer. The officer then asked her to shake out her bra, which she did. The officer then twice asked to search the defendant’s purse, and both times the defendant refused. The officer then asked the defendant whether, if he called a drug dog, it would alert to her purse. The officer proceeded to arrange for a drug dog to join them and told the defendant that the drug dog was on its way but that, if the defendant had only a small amount of drugs in her purse, she would be treated more fairly if she cooperated. At that point, the defendant consented to a search, and a small amount of methamphetamine was found. Mathis, 232 Or App at 288-89.

We concluded that, under the totality of the circumstances, the defendant was seized under Article I, section 9, by the time that the officer told her that a drug dog was on its way. We came to that conclusion because, by that point, the defendant’s friend had been arrested; the officer had asked the defendant if she had drugs and would consent to be searched; the officer had asked her to shake out her bra after she had already turned out her pockets; the officer had twice asked to search her purse, which was refused; and the officer had then raised and confirmed with the defendant his decision to call a drug dog. Id. at 291-92. Under those circumstances, we concluded that “no objectively reasonable person in defendant’s position would have believed that she was free to leave pending the drug dog’s arrival.” Id. at 292.

None of the circumstances that led us to conclude that the defendant had been seized in Mathis are present here. The driver was not arrested or removed from the car, the interaction between Dipietro and defendant lasted only a few minutes between his arrival and the drug dog alerting to the car, defendant was not removed from the car before the drug dog alerted, Dipietro asked defendant only once if he could search her car, and he stopped his interaction with her once she refused. Under the totality of the circumstances in this case, nothing about Dipietro’s retrieval of the drug dog and subsequent walk around the car escalated the “mere conversation” with defendant to a seizure under Article I, section 9.

Because we conclude that defendant was not seized under Article I, section 9, we turn to defendant’s Fourth Amendment argument. Under the Fourth Amendment, defendant was seized for the duration of the stop when Cardinal stopped the car in which she was a passenger. See, e.g., Clemons, 267 Or App at 699-700 (discussing Fourth Amendment principles). Thus, our inquiry is different from that under Article I, section 9. For the Fourth Amendment analysis in this case, we must first determine if the stop of defendant was lawful, viz., based on reasonable suspicion. See, e.g., United States v. Lopez-Soto, 205 F3d 1101, 1105 (9th Cir 2000) (an officer must have reasonable suspicion to justify an investigative traffic stop).

Under the Fourth Amendment, reasonable suspicion “requires ‘some minimal level of objective justification’ for making the stop.” United States v. Sokolow, 490 US 1, 7, 109 S Ct 1581, 104 L Ed 2d 1 (1989). Cardinal testified that he stopped the car for a traffic violation that another officer had personally observed and for an equipment violation that Cardinal had personally observed. However, Cardinal did not testify what the traffic violation and the equipment violation were, and the officer who observed the traffic violation did not testify. As a result, the record is devoid of the necessary facts to support a conclusion that Cardinal had objective, reasonable suspicion to stop the car in which defendant was travelling.

Additionally, the officers lacked reasonable suspicion of a drug crime to support the stop of the car. A person’s mere association with a location of suspected drug activity is insufficient to support an objective, reasonable belief that that person is engaged in drug activity. See United States v. Hernandez, 149 Fed Appx 705, 707 (9th Cir 2005) (no reasonable suspicion of criminal activity to justify stop when “the officer knew only that defendant was parked late at night at a gas station in a high crime area, and that he exited his truck nervously when the officer shined a spotlight in his car”). The testifying officers did not articulate any other factual basis that could have supported the stop of the car based on a suspicion of a drug crime, and Cardinal testified that he did not initiate the stop on that basis.

Because the officers failed to articulate facts to establish objective, reasonable suspicion to justify the initial stop of the car, defendant was unlawfully seized under the Fourth Amendment, and the evidence obtained as a result of the stop of the car must be suppressed. Lopez-Soto, 205 F3d at 1106. Accordingly, we reverse and remand.

Reversed and remanded.

1 In coming to the opposite conclusion, the concurrence places significance on defendant refusing to have the drug dog search her car before Dipietro conducted the drug sniff of the exterior of the car with the dog. However, a request to search the car with a drug dog is different from a walking a drug dog around the exterior of the car. The first—a search—is constitutionally significant and requires consent, a warrant, or an exception to the warrant requirement before law enforcement officers may proceed. When defendant refused to consent to a search, Dipietro did not pursue the matter. An exterior dog sniff of a car in a public place is not a search and does not require constitutional justification. State v. Smith, 327 Or 366, 374, 963 P3d 642 (1998). Dipietro made no show of authority, by word or conduct, directed at defendant by merely walking the drug dog around the front of the car and to the driver’s door.