STATE v. DAFFERN (2021)

We affirmed without opinion defendant's conviction for unlawful possession of methamphetamine, ORS 475.894, rejecting his challenge to the trial court's denial of his motion to suppress. 297 Or. App. 582, 442 P.3d 246 (2019). Defendant sought review in the Supreme Court, and the Supreme Court has now remanded the case to us for reconsideration in light of the court's opinion in State v. Arreola-Botello, 365 Or. 695, 451 P.3d 939 (2019). We now agree with defendant that his conviction must be reversed.

Police Officers Allenbaugh and Schreiner were patrolling and stopped defendant on his bicycle for failing to signal a lane change. Allenbaugh asked defendant for his identification, and defendant provided an Oregon Identification Card. Allenbaugh contacted dispatch for a records check.

While waiting for the results of the records check, and without any independent justification, Schreiner asked defendant if he could search him for drugs or weapons. Schreiner testified that he asked for defendant's consent to search during an unavoidable lull. Defendant consented. Schreiner asked defendant if he had anything sharp or dangerous in his pockets, and defendant volunteered that he had a syringe in his left front pocket. Schreiner found the syringe and later determined that it contained methamphetamine.

Defendant was charged with unlawful possession of methamphetamine and sought to suppress evidence of the search, arguing that the request for consent to search was not reasonably related to the stop. The trial court denied the motion, citing this court's case law allowing for such questioning during an “unavoidable lull.” See, e.g., State v. Dennis, 250 Or. App. 732, 737, 282 P.3d 955 (2012). On appeal, we affirmed defendant's conviction without opinion.

In Arreola-Botello, 365 Or. at 712, 451 P.3d 939, the court disavowed our “unavoidable lull” rationale and held that investigative inquiries after a lawful traffic stop must be reasonably related to the purpose of the traffic stop or supported by an independent constitutional justification. Because the record here reflects that Schreiner's request to search defendant did not have any relation to the purpose of the traffic stop and was not supported by an independent constitutional justification, we conclude that the trial court erred in denying defendant's motion to suppress.

Reversed and remanded.

PER CURIAM