State v. Fowler
Case # A143166
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A143166A.pdf
Defendant Fowler was stopped for a traffic violation. Because the car Fowler was driving was not insured, the Officer impounded it. When the Officer asked if Fowler had any illegal weapons or items in the car, Fowler said she did not. However, the Officer was suspicious because Fowler glanced at her purse when she answered the question. Consequently, the Officer asked Fowler for consent to search her car, person, and purse. When he made that request, the Officer had Fowler’s license and all of the information that he needed to issue a citation for the traffic violation. Fowler consented, and the Officer found methamphetamine in her purse and a glass pipe in her car.
Prior to trial, Fowler moved to suppress evidence obtained during the traffic stop. Fowler argued that the Officer unlawfully extended the traffic stop when he asked if she had any illegal items. The State countered that the Officer did not unlawfully extend the stop and that Fowler voluntarily consented to the search. The trial court denied Fowler’s motion, and she was convicted.
Fowler appealed, and the Court of Appeals reversed the conviction. The Supreme Court remanded for further consideration in light of its recent decision in State v. Unger, 356 Or 59, 333 P3d 1009 (2014), which established that when a defendant has established that an unlawful stop preceded a consensual search, the State bears the burden of demonstrating that the consent was voluntary and was not the product of the unlawful police conduct.
The State now concedes that the Officer unlawfully extended the traffic stop. The State further contends that Fowler’s consent to search was not the product of the unlawful extension of the stop because the extension “did not directly reveal information that prompted the request for consent to search” and the unlawful conduct “was minimal in duration and severity.” The Court of Appeals notes, however, that the State’s current argument is different from the one it made to the trial court. The Court declines to consider the State’s argument because the record might have developed differently if the State had raised it below. Based on the arguments presented on the record, the evidence Fowler sought to suppress was the product of an unlawfully extended traffic stop and therefore should have been suppressed. Accordingly, Fowler’s conviction is reversed and remanded.