State v. Zin Min Aung
State v. Zin Min Aung
Opinion of the Court
Defendant challenges his conviction for unlawful possession of a controlled substance,
We review the trial court’s denial of defendant’s suppression motion for errors of law. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). In doing so, we are bound by the trial court’s express and implicit factual findings if there is constitutionally sufficient evidence in the record to support them. Id. We state the facts consistently with that standard.
Officer Haugen stopped defendant for failure to obey a traffic control device and an unsignaled lane change. Defendant presented Haugen with his driver’s license. Haugen radioed for a cover officer as he returned to his patrol car. Haugen conducted a records check, which came back “clear and valid.” He then decided to issue a citation to defendant for an unsignaled lane change. After Haugen began writing the citation, Officer Corning arrived, and Haugen asked him to complete the citation. Corning took over processing the citation, and Haugen approached defendant and asked him to get out of the car. Haugen then asked for and received defendant’s consent to pat him down for weapons. Haugen’s pat-down did not produce any weapons, but he then asked defendant if he could search his car. Defendant consented, and the search revealed two Oxycodone pills.
Before trial, defendant moved to suppress evidence obtained in connection with the search of his car, arguing, among other things, that Haugen unnecessarily extended the traffic stop by asking Corning to complete the citation. The trial court denied the motion, finding that Haugen’s request for consent occurred while Corning was still filling out the citation and that there was no unlawful extension of the traffic stop. The trial court found defendant guilty after a stipulated facts trial.
Defendant appeals the resulting judgment, reprising his argument from below. He asserts that Haugen, by asking Corning to finish the citation, unlawfully extended the duration of the stop “because physically exchanging the citation delayed the completion of the citation.” Defendant recognizes that the exchange between Haugen and Corning “may have added only a few seconds to the duration of the stop” but asserts that State v. Dennis, 250 Or App 732, 740, 282 P3d 955 (2012), controls and that, in that case, we held that the rule against extending the duration of a stop “applies regardless of the length of the extension.” Defendant argues that “Haugen did not need to ask Corning to finish the citation, and thus did so as an alternative to going forward with his duty to expeditiously complete the stop.” Accordingly, defendant maintains that the citation “handoff” between Haugen and Corning extended the duration of the stop, thus subjecting defendant to an unlawful seizure under Article I, section 9.
The state counters that Dennis does not control and that the officers did not unlawfully extend the stop in this case. The state proposes that the proper inquiry is whether the officers were “expeditiously proceeding with the steps necessary to complete the stop,” not whether the stop was completed in the most expeditious time humanly possible. The state contends that the officers expeditiously moved the investigation and citation process along, such that the traffic stop was not unlawfully extended. The state distinguishes Dennis, complaining that that case occurred in a different
We begin with the general framework that governs whether a traffic stop is unlawfully extended:
“[A]¡though an officer is free to question a motorist about matters unrelated to the traffic infraction during an unavoidable lull in the investigation, such as while awaiting the results of a records check, that officer is not similarly free to question the motorist about unrelated matters as an alternative to going forward with the next step in processing the infraction, such as the writing or issuing of a citation. When an officer has all of the information necessary to issue a citation but instead delays in processing it or in telling the motorist that he or she is free to go, the stop is no longer lawful unless the officer has reasonable suspicion of further criminal activity.”
State v. Rodgers, 219 Or App 366, 372, 182 P3d 209 (2008), aff'd sub nom State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010) (emphasis added).
Our decision in Dennis was a relatively straightforward application of that framework in the context of whether an officer questioned a motorist about unrelated matters instead of going forward with processing the traffic citation. In Dennis, a police officer stopped the defendant for jaywalking. 250 Or App at 733. The officer radioed dispatch to confirm the defendant’s identification and check for warrants. While waiting for dispatch to respond, the officer asked for consent to search the defendant’s pockets. Id. at 734. The defendant consented, and, among other things, the officer discovered a small container. The officer asked for consent to open it, which the defendant granted, and the officer discovered methamphetamine. Id. The defendant moved to suppress the methamphetamine, arguing that the officer had unlawfully extended the stop. The question at the suppression hearing was whether the officer’s request to open the container occurred during an “unavoidable lull”— i.e., whether the request occurred at a point when the officer
On appeal, first, we explained that an officer can question a motorist about unrelated matters during an unavoidable lull in the stop, but is not similarly free to question a motorist about unrelated matters as an alternative to going forward with the next step in processing the infraction. Id. at 737. We also noted that the state had the burden to prove that a request unrelated to the reason for the stop — in Dennis, the request to open the container — occurred during an unavoidable lull. Id. Given that framework, we concluded that the state had failed to prove that the officer’s request to open the container occurred during an unavoidable lull. Id. at 738. Dispatch had taken 30 seconds to respond to the officer’s inquiry, and the officer could not remember if his request for consent had occurred before or after that 30 second “unavoidable lull.” Accordingly, we concluded that there was no evidence from which the trial court could find that the request occurred before dispatch had responded; therefore, the state had failed to carry its burden to prove that the unrelated inquiry had occurred during an unavoidable lull. Id. In doing so, we rejected the state’s argument that the stop was not extended “in a constitutionally significant way” because we concluded that unrelated inquiries, “no matter how long,” that occur outside of the unavoidable lull unlawfully extend the stop. Id. at 740.
Defendant asserts that Dennis stands for the proposition that any “unjustified” act of an officer that extends the duration of a traffic stop for any amount of time is an unlawful seizure under Article I, section 9. We disagree. In Dennis, we simply held that a traffic stop is unlawfully
Moreover, State v. Nims, 248 Or App 708, 713, 274 P3d 235 (2012), illustrates the proper analysis when — like in this case — two officers are on the scene of a traffic stop. In that case, we held that where two officers were present on the scene of a traffic stop and one officer sought consent to search the defendant’s car while the other officer processed the traffic citation, there was no unlawful extension of the stop. Id. at 714. There, two officers pulled over the defendant for a traffic infraction. Id. at 710. The first officer acquired the defendant’s identification and returned to his patrol car to write a citation. In the meantime, the second officer asked the defendant about drugs and weapons, and requested consent to search the defendant’s car. The subsequent search revealed illegal drugs. The trial court granted the defendant’s motion to suppress, concluding that the police had unlawfully extended the stop. Id. at 711.
We reversed, noting that whether an officer unlawfully extends a stop depends on whether the officer makes the unrelated inquiry instead of expeditiously proceeding with the steps necessary to complete the stop. Id. at 713. In Nims, we noted that the first officer “was continuing, without delay, toward the completion of the traffic stop” and, because the second officer requested consent to search while the first officer was writing the citation, the request did not unlawfully extend the traffic stop. Id. at 713-14.
Here, Haugen did not question defendant about matters unrelated to the traffic stop “as an alternative” to processing the traffic citation. There is no dispute that
Affirmed.
Defendant was convicted under former ORS 475.840 (3)(b) (2011), renumbered as ORS 475.752(3)(b) (2013).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.