State v. Hallam

796

Argued and submitted May 8, 2019, reversed and remanded December 9, 2020

STATE OF OREGON,

Plaintiff-Respondent,

v.

MELISSA ANN HALLAM,

Defendant-Appellant.

Douglas County Circuit Court

15VI165487, 15CR55491;

A166144 (Control), A166151

479 P3d 545

Defendant appeals a judgment of conviction for unlawful possession of meth-

amphetamine, ORS 475.894, assigning error to the trial court’s denial of her

motion to suppress evidence obtained during a traffic stop. This case was liti-

gated, both at trial and on appeal, prior to State v. Arreola-Botello, 365 Or 695,

451 P3d 939 (2019), in which the Oregon Supreme Court refocused the inquiry

away from the unlawful extension of a traffic stop, to the proper scope of a traffic

stop, announcing, in essence, a subject matter limitation on the questions that an

officer can ask during such an encounter. Defendant’s arguments on appeal mir-

ror the prevailing arguments in Arreola-Botello. The state concedes that a subject

matter limitation such as that ultimately announced in Arreola-Botello would be

dispositive on the merits of the case, but contends that defendant’s arguments

are unpreserved. Held: Defendant failed to preserve a subject matter limita-

tion argument before the trial court. However, in light of the change in the law

brought about by Arreola-Botello, and in light of the state’s concession, the issue

qualified as one of “plain error” worthy of the exercise of discretion to correct.

Reversed and remanded.

Frances Elaine Burge, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, Office of Public Defense Services, argued the cause

and filed the brief for appellant.

David B. Thompson, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Lagesen, Presiding Judge, and James, Judge, and

Landau, Senior Judge.

Cite as 307 Or App 796 (2020) 797

JAMES, J.

Reversed and remanded.

798 State v. Hallam

JAMES, J.

Defendant appeals a judgment of conviction for

unlawful possession of methamphetamine, ORS 475.894,

assigning error to the trial court’s denial of her motion to

suppress evidence obtained during a traffic stop. This case

was litigated, both at trial and on appeal, before the Oregon

Supreme Court decided/issued its opinion in State v. Arreola-

Botello, 365 Or 695, 451 P3d 939 (2019). In Arreola-Botello,

the court refocused the inquiry away from the unlawful

extension of a traffic stop, see State v. Rodgers/Kirkeby, 347

Or 610, 227 P3d 695 (2010), to the proper scope of a traf-

fic stop, announcing, in essence, a subject matter limita-

tion on the questions that an officer can ask during such an

encounter.

Defendant’s arguments on appeal in this case mir-

ror the arguments that ultimately prevailed in Arreola-

Botello. At oral argument here, the state acknowledged that

a subject matter limitation, as ultimately announced in

Arreola-Botello, would be dispositive on the merits of this

case, noting that under any such rule of law, the state’s case

here would be “in trouble.” However, the state argues that

the subject matter limitation argument defendant raises on

appeal was not preserved before the trial court, and that

for reasons of preservation, we should affirm. Defendant,

for her part, claims that the subject matter limitation argu-

ment was preserved.

As we explain, we agree with the state that defen-

dant failed to preserve a subject matter limitation argu-

ment before the trial court. However, in light of the change

in the law brought about by Arreola-Botello, and in light of

the state’s acknowledgment that the facts of this case would

not withstand Arreola-Botello’s subject matter limitation—a

concession that is well-taken—the issue qualifies as one of

“plain error.” ORAP 5.45(1); State v. Jury, 185 Or App 132,

136, 57 P3d 970 (2002), rev den, 335 Or 504 (2003) (“Error,

in general, must be determined by the law existing at the

time the appeal is decided, and not as of the time of trial.”

(Footnote omitted.)). We exercise our discretion under Ailes v.

Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956 (1991)

to correct the error and, accordingly, reverse and remand.

Cite as 307 Or App 796 (2020) 799

The pertinent facts are undisputed. Douglas County

Sheriff Deputies Gardner and Reavis stopped defendant

after she committed a traffic infraction. Defendant could not

produce proof of registration or insurance and searched for

the documents for several minutes, including opening the

trunk of her car at one point. As she searched in the trunk,

deputies saw a box of .22 caliber ammunition, though they

saw no weapon. Gardner returned to the patrol car to write

citations, while Reavis remained at the car with defendant.

Gardner contacted dispatch to run defendant’s

license and to complete a computerized criminal history

(CCH) report. Both Gardner and Reavis testified that run-

ning a check for warrants and driving records takes less

than three minutes, while running a CCH check takes sev-

eral minutes longer. Gardner did not know whether defen-

dant had a criminal record, but he knew that she “associ-

ate[d] with numerous drug users and drug dealers.” Based

on these associations, Gardner assumed defendant might

have a recent felony conviction. And based on the ammuni-

tion observed in the trunk of the car, he assumed she might

have a firearm (and further assumed that would be illegal

if she had a recent felony conviction). While waiting for a

response from dispatch about defendant’s criminal record,

Gardner wrote her citations for driving uninsured, failure

to register a vehicle, and failure to stop when emerging. He

spent about 10 minutes in the patrol car.

In the meantime, Reavis’s conversation with defen-

dant quickly escalated from small talk to questions about

her drug use, whether she had any contraband in her car,

and when she was last convicted of a felony. He asked defen-

dant whether she had been able to “stay clean.” As Reavis

testified:

“* * * I asked her about her drug use and asked her if she

had been able to stay clean for a while and she told me that

she had. I asked her when the last time she used was and

she couldn’t tell me specifically but she said it had been a

long time ago. I told her that’s not what I had been hear-

ing while speaking to people in the area there. I asked her

when her last felony conviction was and she told me it was

over 15 years ago. I asked her what it was for. She said it

was for meth. I then asked her if there was anything illegal

800 State v. Hallam

in the vehicle or if she had anything illegal in the vehicle

and she told me she did not.”

Reavis told defendant that he had heard she was

using meth from “people * * * in the community.” Reavis then

asked defendant to “prove” that she was not using drugs. As

Reavis testified:

“* * * I told her that I would like to give her the opportunity

to prove me, or prove it to me that, that, that she was being

clean and she was truthfully not using methamphetamine

and that she didn’t have any[thing] illegal with her. And

then I asked her if she would give me consent to search the

vehicle.”

Defendant gave her consent and stepped out of

the car, holding her purse tightly to her body. This raised

Reavis’s suspicions, and he asked her if he could search her

purse. Defendant opened her purse, revealing a purple bag

which she told Reavis contained “personal stuff.” At this

point Gardner leaned out of his patrol car to tell Reavis that

defendant had had a felony conviction within the previous

15 years.

Reavis began to feel nervous about defendant hold-

ing the purse and asked her if he could put it on the roof of

her car. She reluctantly gave it to him. Then, Reavis ques-

tioned defendant about the contents of her purse:

“I asked her if I searched her purse if there would be

anything illegal inside of it and she just looked at me. She

didn’t say anything. And it was just kind of that awkward

silence for a little bit. And then I asked her if she would

please be honest with me and she told me I have meth in

it.”

Reavis then searched the purse and found 0.6 grams of meth

and a snort tube inside a purple bag. Reavis and Gardner

finished writing defendant’s vehicle code citations and added

another for possession of methamphetamine (ORS 475.894).

Defendant moved to suppress the evidence of meth

and paraphernalia before trial. She filed a bare bones

“points and authorities” motion—one in which she listed a

series of constitutional provisions and cases, but offered no

actual argument as to how those authorities applied to the

Cite as 307 Or App 796 (2020) 801

case, or what was her legal theory as to why suppression

was constitutionally required. At argument on the motion,

she focused on the unlawful extension of the traffic stop, an

argument tracking the analysis of Rodgers/Kirkeby, 347 Or

at 610.

The trial court determined that the stop was not

unlawfully extended by Gardner requesting defendant’s

computerized criminal history or any of the deputies’ other

actions:

“[B]ased on the testimony that I, that I was provided by

Deputy Reavis, Reavis and Deputy Gardner, I don’t find

that there was any contrary evidence indicating that

that was an unreasonable amount of time. Although the,

Deputy Gardner could not say exactly each minute what

he was doing, he very clearly indicated that he was waiting

for the criminal history check by dispatch. There was time,

the time that that took. He was also starting to fill out the

citation while he was also watching Deputy Reavis’ contact

with [defendant] to make sure that he was watching for

officer safety.”

In the stipulated facts trial that followed, the court found

defendant guilty of unlawful possession of methamphet-

amine and two vehicle code violations, and this appeal

followed.

On appeal, defendant assigns error to the trial

court’s denial of her motion to suppress, arguing first, under

Rodgers/Kirkeby, that the deputies’ inquiries unlawfully

extended the traffic stop. But, in the alternative, she argues

that the deputies’ investigation was impermissible in scope.

As defendant argues on appeal, Reavis “significantly inter-

fered with defendant’s liberty by forcing her to interact with

him on a subject for which Reavis had no basis to question

[her].”

With that background, we turn to the issue on

appeal, beginning with preservation. Defendant argues

that her written motion, in particular the portion of the

motion which stated “[t]he intensity and duration of the stop

exceeded the legal basis giving rise to the stop” preserved

the Arreola-Botello argument she now advances on appeal.

We disagree.

802 State v. Hallam

It is unclear what, if anything, defendant’s written

motion preserved. “A written motion to suppress ‘serves

dual functions[:] It frames the issues that the court will be

required to decide, and it notifies the state of the conten-

tions that it must be prepared to address at the hearing on

the motion.’ ” State v. Parnell, 278 Or App 260, 265, 373 P3d

1252 (2016) (quoting State v. Sweet, 122 Or App 525, 529,

858 P2d 477 (1993) (brackets in Parnell; internal citation

omitted)); see also State v. Anderson-Brown, 277 Or App 214,

220, 369 P3d 1248, rev den, 360 Or 465 (2016).

A “points and authorities” style motion, like the one

filed here, may, in some circumstances, be minimally ade-

quate to meet the requirements of Uniform Trial Court Rule

(UTCR) 4.060(1), which provides:

“All motions to suppress evidence:

“(a) must cite any constitutional provision, statute,

rule, case, or other authority upon which it is based; and

“(b) must include in the motion document the moving

party’s brief, which must sufficiently apprise the court and

the adverse party of the arguments relied upon.”

In the case of a warrantless seizure or search we

have noted:

“The rule contains no requirement that a suppression

motion contain detailed factual arguments. Instead, a

motion that generally identifies a search or seizure by the

state, asserts that the search or seizure was warrantless

and, therefore, per se unreasonable unless the state demon-

strates otherwise, cites authority in support of the motion,

and requests suppression of evidence obtained as a result

of the search or seizure ‘sufficiently apprise[s]’ the court

and the adverse party of the arguments relied upon by the

moving party.”

State v. Oxford, 287 Or App 580, 583, 403 P3d 528 (2017)

(brackets in original; internal citation omitted).

However, attorneys who craft motions to just barely

cross the minimal threshold of UTCR 4.060 play a risky

game. Points and authorities motions that offer no legal

argument, like the motion here, while potentially complying

with UTCR 4.060 in some instances, may nevertheless be

Cite as 307 Or App 796 (2020) 803

inadequate to preserve an argument for appeal. Appellate

preservation is not something that can be reduced to “a neat

verbal formula.” State v. Walker, 350 Or 540, 548, 258 P3d

1228 (2011). Rather, the rule of appellate preservation is a

practical rule, “and close calls * * * inevitably will turn on

whether, given the particular record of a case, the court con-

cludes that the policies underlying the rule have been suf-

ficiently served.” State v. Parkins, 346 Or 333, 341, 211 P3d

262 (2009).

The rule of preservation “gives a trial court the

chance to consider and rule on a contention, thereby possi-

bly avoiding an error altogether or correcting one already

made, which in turn may obviate the need for an appeal.”

Peeples v. Lampert, 345 Or 209, 219, 191 P3d 637 (2008). The

rule also ensures fairness to opposing parties, by requiring

that “the positions of the parties are presented clearly to the

initial tribunal” so that “parties are not taken by surprise,

misled, or denied opportunities to meet an argument.” Davis

v. O’Brien, 320 Or 729, 737, 891 P2d 1307 (1995).

Here, nothing in defendant’s written motion suffi-

ciently apprised either the state, or the trial court, of the

Arreola-Botello subject matter limitation argument that she

advances on appeal. And our review of the hearing on the

motion before the trial court shows no indication that the

bare bones written motion was supplemented by Arreola-

Botello-style arguments. Rather, the arguments at the sup-

pression hearing, understandably, tracked the law in effect

at the time under Rodgers/Kirkeby. Accordingly, the subject

matter limitation argument advanced on appeal is unpre-

served. That does not, however, end our inquiry.

We ordinarily will not proceed to the question of

plain error unless an appellant has explicitly asked us to do

so. See, e.g., State v. Hammond, 218 Or App 574, 583-84, 180

P3d 137 (2008) (not addressing the question of plain error

where the “defendant does not argue that the matter in dis-

pute satisfies the requisites of ‘plain error’ as prescribed in

State v. Brown, 310 Or 347, 355-56, 800 P2d 259 (1990), and

that substantial considerations militate in favor of the affir-

mative exercise of the discretion”).

804 State v. Hallam

However, in State v. Tilden, 252 Or App 581, 589-

90, 288 P3d 567 (2012), we identified the rare situation in

which we will engage in plain error review, even when it is

not expressly asked for by the appellant:

“In this case, however, although defendant’s brief does

not contain the words ‘plain error’ or citation to ORAP 5.45,

defendant has nonetheless satisfied the requisites of ORAP

5.45 regarding a claim of error apparent on the record and

has met his burden of demonstrating that type of error in

his opening brief. * * * Here, defendant has identified the

ruling, * * * specified the state of the proceedings (he made

a motion for a judgment of acquittal, but not on the correct

grounds), and set forth pertinent quotations not only where

his motion for a judgment of acquittal was denied (again,

on different grounds than those now argued by defendant)

but also the portions of the record where the trial court con-

sidered the ‘control’ question with regard to an evidentiary

ruling, thereby demonstrating that the court was gener-

ally apprised of the issue, albeit in a different procedural

context.

“More importantly, though, defendant complied with the

requirement in ORAP 5.45(6) that his ‘argument in sup-

port of a claimed error apparent on the record shall demon-

strate that the error is of the kind that may be addressed by

the court without the claim of error having been preserved

in the record’—in other words, he demonstrated that the

argument satisfies the legal test for plain error.”

Relying upon Tilden, we also exercised plain error

review despite no express request by the appellant in State v.

Hoseclaw, 299 Or App 334, 341, 450 P3d 1005 (2019), where

there had been a significant change in the law between the

time of the trial court ruling and the appeal. In that case,

we noted:

“Defendant believed his claim of error to have been pre-

served, and he did not request plain-error review. Although

we ordinarily do not undertake plain-error review in the

absence of an explicit request, this is the rare situation,

like in State v. Tilden, 252 Or App 581, 589, 288 P3d 567

(2012), where defendant’s brief, in light of subsequent case

law, has nonetheless satisfied the requisites of ORAP 5.45

regarding a claim of error apparent on the record.”

Hoseclaw, 299 Or App at 341.

Cite as 307 Or App 796 (2020) 805

As in Tilden and Hoseclaw, and in light of our

approach to changes in the law between trial and appeal

as articulated in Jury, 185 Or App at 136, we conclude

that considering the issue under our plain error doctrine is

appropriate in this case. Accord State v. Ulery, 366 Or 500,

503, 464 P3d 1123 (2020) (“Whether an error occurred is

generally determined by the law at the time of the appel-

late decision, and nothing in our cases or the text of ORAP

5.45(1) indicates that plain error review incorporates its own

nonretroactivity rule.”); State v. Zavala, 361 Or 377, 380 n 1,

393 P3d 230 (2017) (“When used to describe a trial court’s

ruling that was not erroneous under existing law, the term

‘plain error’ is a misnomer; it does not imply any mistake

by a trial court. Instead, it is a label that an appellate court

uses when it decides that a party is entitled to a benefit of a

change in the law.”). Here, as the state essentially concedes,

the trial court’s error is apparent on the face of the record in

light of subsequent case law.

Article I, section 9, of the Oregon Constitution

establishes the right of the people “to be secure in their

persons, houses, papers, and effects, against unreasonable

search, or seizure.” “[W]hen a motorist is stopped for a traffic

infraction, that stop implicates Article I, section 9.” Areolla-

Botello, 365 Or at 701. “[U]nder Article I, section 9, as under

ORS 810.410(3)(b), police authority to detain a motorist dis-

sipates when the investigation reasonably related to that

traffic infraction, the identification of persons, and the issu-

ance of a citation (if any) is completed or reasonably should

be completed.” State v. Watson, 353 Or 768, 778, 305 P3d 94

(2013) (internal quotation marks omitted).

In Arreola-Botello, the Supreme Court rejected

the unavoidable lull doctrine, holding that “all investiga-

tive activities, including investigative inquiries, conducted

during a traffic stop are part of an ongoing seizure and are

subject to both subject-matter and durational limitations.”

365 Or at 712. Accordingly, “an officer is limited to investi-

gatory inquiries that are reasonably related to the purpose

of the traffic stop or that have an independent constitutional

justification.” Id. An “ ‘unavoidable lull’ does not create an

opportunity for an officer to ask unrelated questions, unless

the officer can justify the inquiry on other grounds.” Id.

806 State v. Hallam

The Arreola-Botello rule is clear: Officers conduct-

ing a traffic stop may only conduct investigation unrelated to

that traffic stop if they have independent constitutional jus-

tification for further inquiries. Neither line of inquiry here

(first, whether defendant had drugs, and second whether

she illegally possessed a gun) was related to the basis of the

traffic stop. The only remaining question is whether that

nontraffic-stop-related inquiry was justified by reasonable

suspicion of a crime. It plainly was not.

“To be lawful, an extension of a traffic stop to con-

duct a criminal investigation must be justified by reason-

able suspicion of criminal activity.” State v. Barber, 279 Or

App 84, 89, 379 P3d 651 (2016). Although the standard for

reasonable suspicion is “less than the standard of probable

cause to arrest,” a “stop is unlawful unless it meets an objec-

tive test of reasonableness based on observable facts.” State

v. Holdorf, 355 Or 812, 823, 333 P3d 982 (2014). Reasonable

suspicion exists when the officer “subjectively believes that

the person has committed or is about to commit a crime and

that belief is objectively reasonable in light of the totality

of the circumstances existing at the time of the stop. To be

objectively reasonable, the officer’s suspicion must be based

on specific and articulable facts.” State v. Maciel, 254 Or App

530, 535, 295 P3d 145 (2013) (internal citations omitted).

Here, the state has the burden of proving that the officers

reasonably suspected defendant possessed illegal drugs. See

State v. Guest, 207 Or App 395, 399, 142 P3d 482 (2006).

There is no dispute that Gardner lacked reasonable

suspicion that defendant had drugs. In State v. Rutledge,

243 Or App 603, 606, 610, 260 P3d 532 (2011), we held that

officers did not have reasonable suspicion to justify a stop

where the defendant had just left a motel believed to be a

site of drug activity, was “in a car with a person suspected of

drug activity,” and had a “nervous attitude” about her purse.

In contrast, in State v. Clink, 270 Or App 646, 652, 348 P3d

1187 (2015), we held that the state established reasonable

suspicion where a named informant reported seeing the

defendant smoking something in a car, and the state had

other information, namely, the defendant was with a known

drug user and was making “furtive gestures.” Reavis’s sus-

picion was less reasonable than that in either of those cases.

Cite as 307 Or App 796 (2020) 807

Additionally, the state offers no argument that

the questioning was permissible based on officer safety

concerns. In State v. Jimenez, 357 Or 417, 426-30, 353 P3d

1227 (2015), an officer did not have reasonable suspicion to

ask a person about weapons during a traffic stop where he

had spent some time talking to the defendant before asking

about weapons and did not testify to circumstance-specific

fears for his safety. Here, the ammunition in this case was

far from defendant’s reach in the trunk. No weapon was

observed. Defendant made no threats. She was not hostile.

Nothing indicates that the encounter was anything other

than collegial. Reavis and defendant had been speaking

amicably for several minutes before Reavis asked to search

her purse and defendant had allowed Reavis to put her

purse on the roof of the car. In short, the record is plainly

insufficient to show that Reavis was subjectively reasonably

concerned for his safety, let alone that any such concerns,

even if they existed, would be objectively reasonable; and,

again, the state does not argue otherwise.

Accordingly, we conclude that the deputies’ questions

here violated defendant’s rights under Article I, section 9. In

light of Arreola-Botello, the error is apparent on the record,

and the state does not contend otherwise. We exercise

our discretion to address the error. Defendant’s constitu-

tional rights are affected, and defendant’s conviction was

obtained, in part, based on evidence derived from that con-

stitutional violation. Although defendant did not preserve

the argument made on appeal, defendant did not encourage

the error, nor does the failure to raise the correct argument

reflect a strategic choice. And, as in Ulery, “given the trial

court’s inability to correct the error under controlling law,

the fact that it was not given an opportunity to do so does

not weigh heavily.” 366 Or at 504; State v. Fults, 343 Or 515,

523, 173 P3d 822 (2007).

Reversed and remanded.