State v. Rondeau
State v. Rondeau
Opinion of the Court
AOYAGI, J., *770Defendant was stopped for a traffic violation while bicycling. During the stop, the officer began investigating defendant for driving under the influence of intoxicants (DUII), specifically marijuana. The officer asked defendant a series of questions, which ultimately led to the seizure of methamphetamine and a pipe. Defendant was charged with unlawful possession of methamphetamine, ORS 475.894. Before trial, defendant moved to suppress the evidence on the ground that it was obtained during an unlawful extension of the stop. The state countered that the officer had reasonable suspicion of DUII and that his questions were therefore reasonable and did not unlawfully extend the stop. The trial court denied the motion. Defendant was convicted. On appeal, she assigns error to the denial of her motion to suppress. For the reasons that follow, we conclude that the trial court erred in denying defendant's motion to suppress and, accordingly, reverse and remand.
We review a trial court's denial of a motion to suppress for legal error. State v. Ehly ,
On an October night, Deputy Stevens was on patrol when he saw defendant, who was riding a bicycle, run a stop sign. Stevens stopped defendant for failing to obey a traffic control device, which is a traffic violation. Stevens immediately smelled a "heavy odor of marijuana" coming from defendant's person. Based on defendant having run a stop sign and the odor of marijuana, Stevens suspected that defendant was under the influence of intoxicants. He began to investigate a possible DUII offense.
*52*771Stevens asked defendant for her identification and at some point ran her name through dispatch. Stevens told defendant that he could smell the marijuana on her and asked when she had last smoked. Defendant replied that she had smoked "[e]arlier in the day." Based on his training and experience, Stevens did not consider that answer consistent with the odor coming from her person. Stevens asked defendant whether she had any marijuana on her. She said that she did and handed him a small sealed plastic bag of marijuana. In Stevens's experience from prior DUII and drug-related cases, once he finds one drug-related item, he is typically "able to locate additional items." He also suspected that defendant had more marijuana on her because of "the amount of marijuana that [he] was smelling coming from her person." Stevens "didn't believe, at that time, that that was all she had on her," so he asked defendant for consent to search her.
Defendant consented to a search of her person and also, at some point, to a search of at least one bag that she had with her. Stevens found more marijuana and a Bluetooth headset case. Stevens requested and obtained consent to open the headset case and, inside it, found a glass pipe that he suspected contained methamphetamine residue. Stevens asked defendant "where her meth was." Defendant denied having any methamphetamine on her. She then told Stevens that she was trying to get home for a family dinner and was concerned whether she was going to jail. Stevens told defendant that, if she gave him her methamphetamine, he would not arrest her but would just refer the matter to the district attorney's office. Defendant removed a small plastic bag of methamphetamine from her pocket and gave it to Stevens. At that time, Stevens received another call, told defendant that he would refer the matter, and departed.
The state charged defendant with one count of unlawful possession of methamphetamine, ORS 475.894. Defendant moved to suppress the evidence, arguing that it was *772obtained during an unlawful extension of the stop in violation of Article I, section 9, of the Oregon Constitution. The state asserted that Stevens's questions were justified by reasonable suspicion of DUII and, once he found the glass pipe, by reasonable suspicion of possession of methamphetamine. Defendant conceded that Stevens had reasonable suspicion of DUII but argued that his questions about drug possession were not reasonably related to the DUII investigation and had unlawfully extended the stop.
The trial court concluded that Stevens had reasonable suspicion that defendant had committed DUII and that Stevens therefore was allowed to ask the questions that he asked. The court denied defendant's motion. Defendant then entered into a conditional plea agreement, by which she retained the right to appeal the denial of her motion to suppress. On appeal of the resulting judgment of conviction, defendant raises a single assignment of error, challenging the denial of her motion to suppress.
We begin our discussion with an overview of Article I, section 9, as relevant to stops. 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." A "stop" is a type of seizure, specifically "a temporary restraint of a person's liberty for the purpose of criminal investigation." State v. Rodgers/Kirkeby ,
With respect to a stop for a traffic violation, "[p]olice authority to detain a motorist dissipates when the investigation reasonably *53related to that traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should be completed."
In order to establish that an officer's conduct during a traffic stop was reasonably related to the lawful purposes of the stop, the state must be able to point to a "reasonable, circumstance-specific" relationship between the challenged conduct and the lawful purposes of the stop. Pichardo ,
Existing case law illustrates what does and does not constitute a reasonable relationship between officer conduct and the lawful purposes of a stop. For example, in State v. Fair ,
A more recent case is State v. Miller ,
*54By contrast, in State v. Miller ,
We concluded that the extension of the stop to deploy the drug-detection dog was not supported by reasonable suspicion of criminal activity and "cannot be supported as reasonably related to [the officer's] suspicion of DUII."
More recently, in State v. Aguirre-Lopez ,
That brings us back to the facts of this case. Defendant does not dispute that the initial traffic stop was lawful, that Stevens had reasonable suspicion of DUII, and that Stevens's question about when she had last smoked marijuana was reasonably related to the DUII investigation. Defendant argues that Stevens unlawfully extended the stop, however, when he asked her questions relevant to marijuana possession, as distinct from use. Specifically, she challenges (1) Stevens's question whether she had any marijuana on her, and (2) Stevens's request to search her. Defendant argues that those questions were not reasonably related to the DUII investigation. The state argues that they were reasonably related to the DUII
*55investigation because, given the strong odor of marijuana on defendant's person, Stevens disbelieved defendant's claim that she had last smoked "[e]arlier in the day."
We need not decide whether the officer's first question-whether defendant had any marijuana on her-was reasonably related to the DUII investigation. That is because we conclude that his second question-requesting consent to search her-was not reasonably related to the DUII investigation.
When Stevens asked defendant whether she had any marijuana on her, she said that she did and produced a small bag of marijuana. Stevens's explanation for then asking defendant if she would consent to a search was that he did not feel that the amount of marijuana in the bag "matched up with the amount of marijuana that [he] was smelling coming from her person" and he "didn't believe, at that time, that that was all she had on her." Based on that testimony, the state argues that Stevens's question was reasonably related to the DUII investigation because he was trying to reconcile his reasonable suspicion of DUII with *777defendant's claim to have smoked "[e]arlier in the day" and the odor coming from her person.
The problem with the state's argument is that the state does not explain how the quantity of unconsumed marijuana in defendant's possession was relevant to whether she had committed DUII, particularly when defendant had already produced one bag of marijuana in response to Stevens's prior question. To the extent that current possession is relevant to recent consumption for purposes of DUII (an issue on which we do not opine), the first bag established current possession. Finding additional marijuana would not advance the DUII investigation or help prove DUII but, rather, would only be relevant to potentially proving unlawful possession. See ORS 475B.337 (making it unlawful to possess over one ounce of "usable marijuana" in a public place). Like the officers' conduct in Miller A150565 , Stevens's question related to unlawful drug possession, not DUII.
In reaching that conclusion, the state urges us not to rely on Miller A150565 , seizing on an inconsistency between the opinion's text and a footnote therein to argue that it is not controlling. In the text, we expressly stated that the officers' time deploying a drug-detection dog was not reasonably related to the DUII investigation and explained why that was so. See Miller A150565 ,
*778We normally would close by saying that the stop was unlawfully extended, that evidence seized as a result of the unlawful extension should have been suppressed, and that defendant's motion was erroneously denied. In this case, however, the state urges us to exercise our discretion to affirm the denial of the motion to suppress on an alternative basis not raised in the trial court. We therefore address that issue next.
The state argues for the first time on appeal that, even if the trial court was wrong that Stevens's question about consent to search was reasonably related to the DUII investigation, the court was "right for the wrong reason" because Stevens had reasonable suspicion that defendant possessed a criminal amount of marijuana. In response, defendant argues that the record does not *56support affirmance on that ground and that, in any event, we should not affirm on that ground because the record might have developed differently if it had been raised in the trial court. See Outdoor Media Dimensions Inc. v. State of Oregon ,
We are skeptical that the existing record could establish that Stevens had reasonable suspicion that defendant possessed a criminal amount of marijuana, especially because the trial court implicitly found that Stevens smelled smoked marijuana, not unburned marijuana, on defendant's person.
In sum, we conclude that Stevens's request to search defendant was not reasonably related to the DUII investigation and unlawfully extended the stop in violation of defendant's Article I, section 9, rights. That unlawful extension led to the discovery of the methamphetamine and the glass pipe. The trial court therefore erred in denying defendant's motion to suppress.
Reversed and remanded.
See ORS 813.010 (defining the crime of DUII); ORS 814.400 (making the vehicle code generally applicable to bicyclists); see also State v. Abbey ,
Stevens testified that police officers normally do not allow DUII suspects to resume driving without determining whether they are impaired, but that it is sometimes necessary to elect between calls. Stevens chose to let defendant resume bicycling so that he could attend to an emergency call.
We have held that an officer's questioning of a person during an "unavoidable lull," such as while the officer awaits the results of a records check in a traffic stop, does not extend the duration of the stop and therefore does not violate Article I, section 9. State v. Dennis ,
Relatedly, the state argues that it would be inconsistent with Pichardo to read Miller A150565 to mean that questions about drug possession can never be reasonably related to a DUII investigation. We do not read Miller A150565 to mean that, nor do we hold that here. Rather, we conclude only that, in this case, the state did not establish a reasonable, circumstance-specific relationship between the DUII investigation and Stevens's request for consent to search defendant.
Stevens testified that he was familiar both with the smell of "non-burnt" marijuana and with the "smoked smells." He did not expressly testify as to which he smelled on defendant's person, but he did testify that the odor immediately caused him to suspect that defendant had committed DUII, i.e. , that she had consumed marijuana. It therefore was reasonable for the trial court to infer that Stevens smelled smoked marijuana. Cf. State v. Vennell ,
In Vennell ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.