746 April 16, 2025 No. 339 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. ALEXANDER DIXON MILLER, Defendant-Appellant.

Marion County Circuit Court 20CR00850; A177904 Lindsay R. Partridge, Judge.

Argued and submitted January 22, 2024.

Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jon Zunkel-deCoursey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Powers, Presiding Judge, Hellman, Judge, and Armstrong, Senior Judge.

ARMSTRONG, S. J.

Reversed and remanded.

Cite as 339 Or App 746 (2025) 747 748 State v. Miller ARMSTRONG, S. J.

Defendant appeals a judgment convicting him of two counts of luring a minor, assigning error to the trial court’s denial of his motion to suppress the evidence obtained from a traffic stop, which evidence the state introduced at trial to support the luring charges. Defendant first argues that the police officer who stopped and arrested him did not have authority to investigate a suspected violation of defendant’s post-prison supervision (PPS) conditions and, in the alter- native, that the officer did not have reasonable suspicion of a crime to justify expanding the scope of the traffic stop.

The state responds that the officer had implied authority to arrest defendant for the suspected violation of defendant’s PPS conditions and, alternatively, that the officer articu- lated specific facts that gave rise to reasonable suspicion of a crime. We conclude that the trial court erred in denying defendant’s suppression motion because, absent an arrest order from a person’s supervising officer, a police officer does not have authority to arrest the person for violating a PPS condition, which also means that an officer does not have authority to investigate a suspected violation of a PPS con- dition. Accordingly, we reverse and remand.

We review a trial court’s ruling on a motion to sup- press for legal error and are bound by the trial court’s fac- tual findings if there is constitutionally sufficient evidence to support them. State v. Arreola-Botello, 365 Or 695, 697, 451 P3d 939 (2019); State v. Krieger, 318 Or App 441, 442, 508 P3d 62 (2022). Constitutional violations require the sup- pression of evidence. State v. Chambers, 287 Or App 840, 844, 404 P3d 1122 (2017). The relevant facts are as follows.

While conducting a night-time patrol, Officer Jimenez saw a vehicle parked in the lot of a public park after the park had closed. As Jimenez drove his patrol car into the lot, the vehicle began driving away, and Jimenez followed.

Jimenez could not make out the vehicle’s rear license plate number from “a couple hundred feet” away because the vehi- cle did not have the required lighting equipment to illumi- nate the rear license plate. Jimenez drove closer behind the vehicle to read the license plate, searched the plate number on his mobile terminal device, and saw that the owner of the Cite as 339 Or App 746 (2025) 749 vehicle, defendant, was a registered sex offender. Jimenez also saw that defendant was on PPS and that one of those PPS conditions prohibited contact with minors. Jimenez ini- tiated a traffic stop based on the vehicle not having required lighting equipment for the rear license plate.

Jimenez approached the driver-side window of defendant’s vehicle and gave defendant the reason for the stop. As Jimenez was doing so, he observed defendant’s cell phone on defendant’s lap with the screen visibly facing upwards, and noticed that defendant was trying to close out of a video call app. Jimenez, being a father of teenage daugh- ters, thought that the caller on the phone screen appeared to be a teenage girl, and he suspected that defendant was violating a PPS condition of not having contact with minors.

Defendant closed out of the video call app. Jimenez asked defendant for his driver’s license and other driving documents, and, as defendant was searching for those, another video call from the same caller appeared on defendant’s phone screen. This time Jimenez was able to see the caller “for a much longer period,” which strength- ened his belief that the caller was a teenager. Defendant “frantically” tried to close the application and stated that the caller was “bothering him.”

At that point, Jimenez believed that he had “rea- sonable suspicion to believe that [defendant] was in viola- tion of his” PPS conditions. He asked defendant how old the caller was, defendant responded that she was 18, and Jimenez asked defendant if he knew why the question came up. Defendant responded in the affirmative. Jimenez asked to contact the caller to confirm her age, defendant provided the caller’s information, and the caller stated that she was years old. Jimenez then called defendant’s supervising officer, left a voicemail when the supervising officer did not answer, Mirandarized defendant, took defendant to the back of the patrol car, and questioned defendant about his com- munication with the teenage caller. Defendant made several incriminating statements in the course of that questioning.

Defendant’s supervising officer returned Jimenez’s call, Jimenez mentioned defendant’s incriminating statements, and the supervising officer issued a detainer for defendant’s 750 State v. Miller arrest. Jimenez never issued a citation for the rear license plate light.

The state charged defendant with two counts of lur- ing a minor and three counts of sexual abuse in the sec- ond degree. Defendant moved to suppress all evidence that Jimenez had obtained from the traffic stop. The trial court denied the motion. After the court denied defendant’s sup- pression motion, defendant waived his right to a jury trial, and the parties proceeded to a bench trial on stipulated facts. Cf. Krieger, 318 Or App at 445 (written jury waiver required in order to proceed with trial on stipulated facts).

The stipulated facts reflect that defendant knew that the caller was under the age of 18, that he had sent photographs and videos of sexual conduct to her, and that he had asked her to send him explicit images of herself with the purpose of inducing her to engage in sexual conduct. The court con- victed defendant of two counts of luring a minor.

Defendant appeals the judgment of conviction and assigns error to the trial court’s denial of his suppression motion. As noted, he presents two arguments: first, Jimenez did not have any authority to investigate a suspected viola- tion of a PPS condition and, second, even if Jimenez did have that authority, Jimenez lacked reasonable suspicion of such a violation and, hence, lacked authority to expand the scope of the traffic stop to investigate it. We conclude that Jimenez did not have any authority to investigate the suspected PPS violation and, hence, that he impermissibly expanded the scope of the traffic stop.

Article I, section 9, of the Oregon Constitution1 pro- hibits unreasonable seizures by the government. A traffic stop is a type of on-going seizure. Arreola-Botello, 365 Or at 712. “Police authority to perform a traffic stop arises out of the facts that created probable cause to believe that there has been unlawful, noncriminal activity, viz., a traffic infraction.” State v. Rodgers/Kirkeby, 347 Or 610, 623, 227 That provision states: “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirma- tion, and particularly describing the place to be searched, and the person or thing to be seized.”

Cite as 339 Or App 746 (2025) 751 P3d 695 (2010); see ORS 810.410(2), (3) (authorizing police officers to conduct traffic stops for traffic violations). Thus, the scope of a traffic stop is constrained by subject-matter and durational limitations. Areolla-Botello, 365 Or at 712.

The subject-matter limitation means that, to safeguard a stopped driver’s constitutional protections against unrea- sonable seizures, an officer’s activities during a traffic stop must be “reasonably related to the purpose of the traffic stop” or supported by an independent constitutional justification.

Id.; cf. Rodgers/Kirkeby, 347 Or at 623 (“Police authority to detain a motorist dissipates when the investigation reason- ably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should be completed.”).

One such independent constitutional justification that authorizes police to expand the subject-matter and durational scope of a traffic stop exists when, during the course of a stop, an officer develops reasonable suspicion that the driver has engaged in other criminal activity.

Reasonable suspicion of criminal activity exists if the officer subjectively suspects that an individual has committed, or is about to commit, a crime, and that belief is “objectively reasonable under the totality of the circumstances.” State v. Ehly, 317 Or 66, 79, 854 P2d 421 (1993).

All of those standards point to a fundamental principle of law enforcement action: if a law enforcement officer seeks to do something, the officer must point to an identifiable source of legal authority to take the action. See Chambers, 287 Or App at 844-45 (“[A]n officer may stop a person based on a reasonable suspicion that the person has engaged in conduct for which the legislature has explicitly provided a statutory authority to arrest.”); id. at 845-46 (dis- cussing additional cases). Here, the state does not identify any legal authority that authorized Jimenez to investigate a suspected violation of a PPS condition.

We begin with the trial court’s rationale for deny- ing the motion to suppress. In its oral ruling, the trial court analogized Jimenez’s investigation of a suspected PPS viola- tion to an officer’s authority to arrest, and therefore investi- gate, someone for violating the terms of their probation. The 752 State v. Miller trial court, like the state on appeal, relied on ORS 137.545(2) and State v. Hiner, 240 Or App 175, 246 P3d 35 (2010).

ORS 137.545(2) gives police officers the authority to “arrest a probationer without a warrant for violating any condition of probation.” We have repeatedly held that stat- utes that authorize police officers to arrest a person based on specific statutory violations imply an officer’s authority to stop and investigate the person based on reasonable sus- picion that the person has violated those statutes. In Hiner, we held that a police officer had authority to stop the defen- dant based on a subjective belief that the defendant was in violation of his probation terms. 240 Or App at 179-80.

We reasoned that the express statutory authority of police officers to arrest a person for a probation violation in ORS 137.545 “implie[d] the authority to stop persons reasonably suspected of violating that probation condition” in order to investigate that suspicion. Id. at 180.

We reasoned similarly to conclude that a police offi- cer may stop a person based upon probable cause to believe that the person has violated an abuse-prevention restraining order because ORS 133.310(3) gives an officer authority to arrest a person for violating such a restraining order, which implies the authority to investigate a suspected violation.

State v. Steinke, 88 Or App 626, 628-29, 746 P2d 758 (1987).

And we applied the same reasoning to conclude that a police officer has authority to stop minors suspected of violating a curfew statute because the applicable statutes expressly authorize a police officer to take such suspects into custody.

State v. Morris, 56 Or App 97, 102-03, 641 P2d 77, rev den, 293 Or 340 (1982).

More recently, we declined to hold that a police offi- cer has implied authority to stop a person based on reason- able suspicion that the person had violated the terms of a diversion agreement because nothing in the diversion stat- utes authorizes police officers to arrest a person for failing to comply with diversion conditions. Chambers, 287 Or App at 846-87. In Chambers, a police officer who was coordinating a victim-impact panel noticed that the defendant was acting in a “highly distracting” manner by using a tennis ball to rub her legs and upper thighs. Id. at 841. The officer became Cite as 339 Or App 746 (2025) 753 concerned that the defendant was causing a distraction to others and was under the influence of drugs. Id. The officer took the defendant outside of the panel room and questioned her about her use of drugs. The defendant admitted she had taken drugs for which she did not have a prescription—an act prohibited by her diversion agreement. The officer con- ducted a warrantless search of the defendant and her purse and discovered a weapon, an expired conceal-carry permit, and more unprescribed drugs. The defendant was ultimately arrested, charged, and convicted for that conduct.

On appeal of the trial court’s denial of the defen- dant’s motion to suppress evidence from the police encounter, we rejected the state’s argument that the officers had law- ful authority to investigate the defendant’s suspected viola- tion of a diversion agreement. We reasoned that the state’s analogy to Hiner was unpersuasive because the diversion statutes, unlike the probation statutes at issue in Hiner, do not authorize a police officer to arrest or stop a program par- ticipant for failing to comply with the terms of the diversion agreement. Id. at 847-48. We reversed and remanded the trial court’s denial of the defendant’s motion to suppress. Id. at 849.

In every one of the cases in which we have held that an officer has implied authority to stop and investigate someone for certain conduct, there was a statute authoriz- ing a police officer to arrest someone for that conduct. Such a statute does not exist here. Accordingly, Jimenez did not have the authority to investigate or stop defendant for a sus- pected violation of a PPS condition.

Recognizing that no statute authorizes a police offi- cer to arrest a person for violating a PPS condition, the state argues that a person on PPS remains under the supervision of the state, which, in its view, confers on police officers the authority to arrest a person on PPS. The state points to ORS 144.350 in support of that argument.

ORS 144.350 provides the Department of Corrections (DOC) and other statutorily defined “supervisory authority” with the legal authority to “order the arrest and detention of any person under the supervision of” DOC if the department 754 State v. Miller has reasonable grounds to believe that such a person has violated the conditions of PPS. ORS 144.350(1)(a)(A); ORS 144.087(1) (“ ‘[S]upervisory authority’ means the state or local corrections agency or official designated in each county by the county’s board of county commissioners or county court to operate corrections supervision services, custodial facilities, or both.”). The statute says nothing about a police officer’s authority to act on a suspected violation of a PPS condition.

Indeed, we have recognized that ORS 144.350 is limited to DOC and the statutorily defined supervisory authority. State v. Smith, 292 Or App 335, 339-40, 424 P3d 755 (2018). A police officer’s authority to arrest someone suspected of violating a condition of their parole must come from a PO’s order to arrest the individual. State v. Meier, 145 Or App 179, 185-86, 929 P2d 1052 (1996). ORS 144.350 similarly requires an order from a supervisory authority to arrest a person suspected of violating their PPS conditions.

Here, Jimenez did not receive the detainer from defendant’s supervising officer to arrest defendant until after Jimenez had already interrogated defendant about the suspected PPS violation and after defendant had made the incrimi- nating statements. In those circumstances, Jimenez was not authorized to act upon his suspicion.

Seeking a different result, the state posits that Jimenez was authorized to investigate and arrest defendant under ORS 131.615. That statute authorizes police officers to make a reasonable inquiry of a person who an officer “rea- sonably suspects * * * has committed or is about to commit a crime.” ORS 131.615(1). The state posits that violation of a PPS condition is a “crime” that an officer can investi- gate without an order from the PO, because, in the state’s view, a violation of PPS is punishable by jail time. See ORS 144.106(2)(b) (making jail time a possible sanction for a PPS violation); ORS 161.515(1) (“A crime is an offense for which a sentence of imprisonment is authorized.”).

It is true, as the state notes, that violation of a PPS condition may be sanctioned by the imposition of jail time.

That alone, however, does not make a violation of a PPS con- dition a crime. The full definition of a “crime” requires that Cite as 339 Or App 746 (2025) 755 the act for which a sentence of imprisonment may be imposed be “either a felony or a misdemeanor.” ORS 161.515(2). And the state does not point to anything to suggest that a viola- tion of a PPS condition is either a felony or a misdemeanor.

Therefore, the general authority given to police officers by ORS 131.615 to investigate crimes did not authorize Jimenez to investigate defendant’s violation of the PPS conditions.

It follows, then, that Jimenez did not have reason- able suspicion that defendant had committed a crime as a basis to justify expanding the scope of the traffic stop. As noted, an officer may expand the scope of a traffic stop if, during the course of the stop, the officer develops reason- able suspicion that the person has engaged in other crimi- nal activity. That was not the case here. A violation of a PPS condition is not a crime and is not something that the stat- utes expressly or by implication authorize a police officer to investigate. Thus, no matter how “specific and articulable” the facts Jimenez described were to his suspicion that defen- dant may have been violating a PPS condition, Jimenez did not have authority to investigate that suspicion without first presenting the suspicion to defendant’s supervising officer.

Finally, the state posits that Jimenez’s unautho- rized investigation of whether defendant had violated a PPS condition was a statutory violation under ORS 136.432 and not a constitutional violation that warrants suppression of evidence. We are unpersuaded. Evidence obtained in vio- lation of a person’s constitutional rights must be excluded from trial. Here, Jimenez violated defendant’s right to be free from unreasonable seizure when Jimenez abandoned the initial reason for the traffic stop—the faulty lighting on the rear license plate—and began inquiring about the suspected PPS violation, all without authorization from defendant’s supervising officer. That violation is of constitu- tional magnitude and requires suppression of the evidence obtained as a result.

Reversed and remanded.