State v. Booth
Case # A150751
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A150751.pdf
Defendant Booth was stopped for speeding early one morning. It was a warm morning, and the Officer who stopped Booth thought it unusual that Booth was wearing a long-sleeved jacket or sweater that was zipped up to his chin. The Officer also noticed that Booth was very nervous, visibly shaking, and had “facial twitches,” which the Officer recognized as a sign of stimulant use. The Officer asked Booth if he had any weapons or marijuana in the car, and Booth said “no.” But when the Officer asked if he had any methamphetamine in the car, Booth “looked away and said, ‘not that he knew of.’” Because Booth’s demeanor changed when asked about methamphetamine, the Officer thought there might be some in the car. The Officer learned from dispatch that Booth had a prior drug conviction. The Officer eventually searched Booth’s car and found a spoon with methamphetamine residue, a cotton ball, and other drug paraphernalia. Booth ultimately entered a conditional guilty plea to Possession of Methamphetamine, ORS 475.894, and now appeals the trial court’s denial of his motion to suppress evidence.
Booth argues that the Officer violated Article I, Section 9 by unlawfully extending the traffic stop when he asked Booth why he was so nervous, whether he possessed any weapons, marijuana, or methamphetamine, and requested consent to search the car without reasonable suspicion of criminal activity. The State concedes that the traffic stop was unlawfully extended but argues that the evidence is admissible because Booth consented to a search after he was advised of his right to refuse to consent to a search. Moreover, Booth testified that he understood his right to refuse to consent to a search. Therefore, the State argues, Booth’s consent was not the product of police exploitation of the unlawful extension of the stop, and the evidence should therefore be admissible.
The Court of Appeals notes that the State did not make that argument to the trial court. In order to make its argument, the State must prove that the Officer did not exploit the illegality of the stop to obtain Booth’s consent. Determining whether the Officer exploited his unlawful conduct “involve[s] a ‘fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection.’” State v. Unger, 356 Or 59, 79-80, 333 P3d 1009 (2014). Because the State did not make its argument to the trial court, the record lacks sufficient facts for the Court of Appeals to consider. Moreover, the record would likely have developed differently had the State made its argument to the trial court. Notably, there is a factual dispute between the Officer and Booth as to how Booth ultimately consented to the search. Thus, because the State failed to bring its argument before the trial court, the Court of Appeals declines to consider it and concludes that the trial court erred in denying Booth’s motion to suppress. Accordingly, the conviction is reversed and remanded.