State v. Bradley

736                   December 28, 2023                 No. 682

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
            AMMAHAD ANTHONY BRADLEY,
                  Defendant-Appellant.
             Washington County Circuit Court
                  19CR49631; A173064

   Beth L. Roberts, Judge.
   Argued and submitted June 21, 2022.
   Rond Chananudech, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services. Ammahad Bradley filed the supplemental
brief pro se.
   David B. Thompson, Assistant Attorney General, argued the
cause for respondent. Also on the briefs were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
   POWERS, J.
   Reversed and remanded.
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 (2023)                               737

         POWERS, J.
         Defendant appeals from a judgment of conviction for
unlawful delivery of heroin, ORS 475.850, possession of her-
oin, ORS 475.854, unlawful delivery of methamphetamine,
ORS 475.890(2), and possession of methamphetamine, ORS
475.894, advancing three main contentions: (1) the trial court
erred in denying his motion to suppress evidence because
the officer’s question expanded the scope of the traffic stop
without an independent constitutional justification; (2) the
trial court improperly entered unlawful delivery convictions
based on a change in the law that developed after his trial;
and (3) the trial court erred in imposing court-appointed
attorney fees. On the first issue, defendant contends that,
under Article I, section 9, of the Oregon Constitution, the offi-
cer’s question, “Do you have anything on you that you’re not
supposed to have?” and subsequent request to conduct a pat-
down and search unlawfully expanded the scope of the stop.
As explained below, we agree that the officer’s inquiry vio-
lated the subject-matter limitation that Article I, section 9,
imposes on investigatory stops given the circumstances in
which it arose and that the state did not meet its burden
to prove that the violation did not affect defendant’s sub-
sequent consent to a patdown and search of his pockets.
Accordingly, the trial court erred in denying defendant’s
motion to suppress the evidence discovered during the stop,
and we reverse and remand.
         We review the denial of defendant’s motion to sup-
press for legal error and, in doing so, we are bound by the
trial court’s findings of fact so long as they are supported
by constitutionally sufficient evidence in the record. State v.
Maciel-Figueroa, 

, 

 (2017).
Consistent with that standard, we describe the facts sur-
rounding the challenged stop.
        Beaverton Police Officer Meekisho was driv-
ing his marked police vehicle around 4:00 a.m. when he
noticed defendant standing outside of his parked car in a
Plaid Pantry parking lot. Defendant “caught [his] eye,”
and Meekisho turned around and parked in a parking lot
across the street where he could observe defendant. He ran
defendant’s license plate and learned that defendant had
738                                           State v. Bradley

previously been arrested in the State of Washington for
a weapons offense and drug charges. Meekisho observed
defendant for about 40 minutes, during which defendant
entered and exited the Plaid Pantry store at least three
times.
         Eventually, defendant got back into his car and
drove out of the parking lot. As he did so, Meekisho saw
him commit two traffic violations: He failed to come to a
full stop before leaving the parking lot, and he turned into
the far-right lane rather than into the closest available lane
on a street with two lanes going the same direction. Based
on those violations, Meekisho pulled behind defendant and
initiated a traffic stop. Officer Croissant, Meekisho’s part-
ner, arrived on scene less than a minute after Meekisho
initiated the stop. Meekisho approached defendant’s vehi-
cle with Croissant coming up behind him. Meekisho asked
defendant for his driver’s license, registration, and proof of
insurance, and engaged defendant in additional question-
ing such as whether the car was registered to him, where
defendant lived, and how long he had lived there. Meekisho
observed that defendant’s eyes were bloodshot, his speech
was slow, and he had a “very lethargic look.” Based on his
training and experience, Meekisho believed that defendant
was under the influence of intoxicants. He asked defen-
dant to step out of his vehicle to conduct field sobriety tests
(FSTs), and defendant agreed to do so.
         After defendant got out of his vehicle, Meekisho
asked defendant, “Do you have anything on you that you are
not supposed to have?” Meekisho did not recall how defen-
dant responded to that question. Meekisho then asked, “Is
it okay if I pat you down?” Defendant consented and began
to reach into his own pockets, removing a writing pen.
Meekisho put his hands on defendant’s arm, stopping him
from reaching further into his pockets. Meekisho asked if he
could remove all the items from defendant’s pockets himself.
Defendant agreed and put his hands up away from his own
pockets.
          Meekisho reached into defendant’s pockets and
pulled out a wad of cash and, as he did so, a folded-up piece of
tin foil fell to the ground. Meekisho could see a brown, pasty
Cite as 

 (2023)                            739

residue on the foil and believed it to be heroin. Defendant
was arrested, and the officers discovered large quantities
of heroin, methamphetamine, and pills during a search of
defendant’s car incident to his arrest.
         Defendant filed a motion to suppress all evidence
seized from his person and vehicle, arguing that Meekisho’s
inquiries were not reasonably related to the purpose of the
stop and that he unlawfully extended the stop when he
asked for consent to search and felt the outside of defen-
dant’s pockets. At the suppression hearing, Meekisho tes-
tified that his intent in asking if defendant had “anything”
was primarily to discover whether defendant had weapons
on him, and, secondarily, whether he was in possession of
drugs. Meekisho noted that defendant was calm and com-
pliant during the stop, but that, based on his training and
experience, people who are using drugs are generally more
erratic or prone to making decisions that put the officer at
risk. He further testified that he asks to conduct a patdown
before administering FSTs because the tests require that
he stand within close proximity of the suspect and focus on
their eyes while both of his hands are occupied, making him
vulnerable to attack.
          The trial court denied the motion to suppress, con-
cluding that there was a constitutional basis for Meekisho
to conduct the DUII investigation, that the patdown and
his requests for consent to search were reasonably related
to officer safety concerns, and that the consent to search
was voluntary. Following a bench trial, defendant was con-
victed on several drug charges. However, defendant was not
charged with DUII, as further testing done at the station
led officers to believe that defendant was not intoxicated.
         On appeal, defendant renews his argument that
Meekisho unlawfully expanded the subject-matter of the
DUII investigation by inquiring about items in defendant’s
possession unrelated to that investigation. See State v.
Arreola-Botello, 

, 

 (2019) (con-
cluding that “all investigative activities, including investi-
gative inquiries, conducted during a traffic stop are part of
an ongoing seizure and are subject to both subject-matter
and durational limitations”). Defendant contends that
740                                           State v. Bradley

Meekisho’s testimony about the general risks associated
with administering FSTs was insufficient to establish a
circumstance-specific danger that would justify the inqui-
ries and patdown, especially considering defendant’s calm
demeanor and the presence of a second officer.
          The state remonstrates that Meekisho’s inquiries
were reasonably related to the DUII investigation. It asserts
that, to the extent Meekisho’s questions were about drugs,
such inquiries were permissible given that Meekisho had
probable cause that defendant was under the influence of
intoxicants. To the extent that his inquiries were about
weapons, the state contends that Meekisho’s testimony
identified the safety concerns associated with administer-
ing roadside FSTs in the early morning hours, and that the
Supreme Court has previously held that such conditions
provide sufficient justification for an officer to inquire about
weapons. See State v. Miller, 

, 

, adh’d to as modified on recons, 

, 

 (2018) (concluding that, where an officer testified that
“[t]here is absolutely nothing safe about administering field
sobriety tests on the side of the road at 12:30 in the morn-
ing,” the state had “met its burden to prove that the officer
reasonably perceived a circumstance-specific danger and
also reasonably decided that a question about firearms was
necessary to address that danger”). In its brief, the state
does not advance any attenuation argument or contend that
any constitutional violation resulting from the officer’s con-
duct was harmless under the circumstances of the case.
         In reply, defendant asserts that Meekisho’s question
was not specific to weapons or drugs; rather, his inquiry was
a broad, limitless question about any possessory offense.
Asking broadly if he has anything he is not supposed to
have, defendant argues, is distinguishable from cases like
Miller, where the officer had safety concerns but asked
specifically if the defendant had a firearm. 363 Or at 377,
388. Additionally, defendant acknowledges that, in some
cases, a defendant’s consent can attenuate the taint from an
Article I, section 9, violation, but he argues that the state
has the burden to establish that tenuous connection. See
State v. Unger, 

, 

 (2014) (adhering
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 (2023)                                                741

to the principle that, where a defendant consents to a search
following unlawful police conduct, the state is required to
prove that the consent “was independent of, or only tenu-
ously related to, the illegal police conduct”). Because the
state made no such argument, defendant asserts that a con-
clusion that there was an Article I, section 9, violation also
necessitates a conclusion that the evidence be suppressed.
          Article I, section 9, establishes “the right of the peo-
ple to be secure in their persons, houses, papers, and effects,
against unreasonable search, or seizure.”1 For purposes of a
traffic stop for a noncriminal violation, Article I, section 9,
requires that an officer’s investigative questions and activ-
ities be reasonably related to the purpose that permitted
the officer to stop the individual in the first place or have an
independent constitutional justification. Arreola-Botello, 

. Determining a person’s identity and verifying
that he, she, or they hold valid driving privileges are gen-
erally reasonably related to the purpose of a traffic stop, so
long as those activities are not unreasonably lengthy. State
v. Watson, 

, 

 (2013). An officer may
have an independent justification to expand the scope of a
traffic stop into a criminal investigation if the officer has
reasonable suspicion of criminal activity. State v. Huffman,

, 

 (2015), rev den, 

 (2016). An officer has reasonable suspicion when he, she,
or they subjectively believe that the person has committed
or is about to commit a specific crime or type of crime, and
that belief is objectively reasonable in light of the totality of
circumstances known to the officer. Maciel-Figueroa, 

.
        We begin with defendant’s argument that Meekisho’s
question—“Do you have anything on you that you are not
supposed to have?”—was not reasonably related to the
purpose of the stop. After making contact with defendant,
Meekisho developed reasonable suspicion that defendant
   1
       Article I, section 9, provides:
       “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.”
742                                                       State v. Bradley

had committed the crime of DUII.2 Thus, Meekisho’s rea-
sonable suspicion that defendant committed the crime of
DUII defined the constitutionally permissible boundaries of
the investigation and required that his questions and activi-
ties “be reasonably related to that investigation and reason-
ably necessary to effectuate it.” Watson, 

. The
question came after defendant agreed to perform FSTs, but
before he provided consent for Meekisho to pat him down
and to search his pockets.
          Meekisho testified that the primary purpose of his
question was to ask if defendant was carrying a weapon but
that it was also intended to inquire about drugs. We have
generally held that it is permissible for an officer conduct-
ing a DUII investigation to inquire as to whether a defen-
dant has any alcohol or controlled substances in the vehicle.
See State v. Williams, 

, 

,
rev den, 

 (2019) (holding that such questions are
reasonably related to the purpose of a DUII stop). Further,
where an officer subjectively perceives danger from the cir-
cumstances related to a roadside DUII investigation, an
officer’s inquiry as to whether a defendant has a firearm
can be reasonably related to the purpose of that investiga-
tion. See Miller, 363 Or at 388-89 (so holding). In this case,
Meekisho testified that he suspected defendant to be under
the influence of intoxicants and that he had safety concerns
specific to the circumstances of the DUII investigation that
he was conducting. Specifically, he testified that, while con-
ducting FSTs, he would have to stand near defendant, both
of his hands would be occupied, and that people under the
influence of intoxicants are more erratic and prone to mak-
ing decisions likely to put him at risk.
          Despite those concerns, Meekisho’s question was
not specific to drugs or weapons but was instead a broad
question that encompassed any possessory offense and thus
was not related to the purpose of the stop. Article I, section
9, requires that an officer’s investigative inquiries during a
traffic stop have durational and subject-matter limitations.
    2
       Defendant does not challenge whether Meekisho had the reasonable sus-
picion necessary to justify the DUII investigation; thus, we do not address that
issue.
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 (2023)                             743

Arreola-Botello, 

. Asking a driver if there is
“anything” that the driver is “not supposed to have” is an
investigative inquiry that is not limited by its subject mat-
ter. As defendant’s argument observes, such a broad inquiry
encompasses an array of possessory offenses unrelated to
the purpose of the investigation. See, e.g., ORS 164.095 (sto-
len property); ORS 164.235 (burglar’s tools); ORS 163.689
(materials depicting sexually explicit conduct of a child).
Meekisho’s testimony at the suppression hearing clarify-
ing the scope of his question was insufficient to place the
question within the bounds of a constitutionally permissi-
ble inquiry. Thus, despite his legitimate safety concerns,
Meekisho’s broad question to defendant if he had “any-
thing” that he was “not supposed to have” was a violation of
Article I, section 9, because it was not limited to the subject
matter of the investigation.
         That conclusion, however, does not complete the
analysis on whether the trial court erred in denying
defendant’s motion to suppress. Having determined that
Meekisho’s question was a constitutional violation, we must
now decide if that violation compels suppression of evidence
discovered in the subsequent search of defendant’s person
and vehicle based on the circumstances. The general rule
requires suppression if the evidence was “the product of an
unconstitutional act.” Arreola-Botello, 

; see also
Pooler v. MVD, 

, 

 (1988) (explain-
ing that an arrest is not invalid simply because a stop was
unlawful; rather, an arrest is invalid if “it follows as a con-
sequence of and depends upon” an unconstitutional stop).
More specifically, in cases where the unlawful police conduct
is followed by a defendant’s voluntary consent to search, we
examine whether the consent was “tainted” because it was
a “product of” the unlawful conduct. Unger, 

.
Here, Meekisho made the unlawful inquiry as defendant
was stepping out of his vehicle to perform FSTs. Although
the record does not show if or how defendant responded to
Meekisho’s inquiry, Meekisho immediately followed that
unlawful inquiry with a request for consent to pat down and
search his pockets, which defendant provided. Thus, the
issue becomes whether defendant’s consent to the patdown
744                                          State v. Bradley

and search of his pockets was tainted because it was a prod-
uct of the constitutional violation.
         In some situations, “a defendant’s voluntary con-
sent itself may be sufficient to demonstrate that the unlaw-
ful conduct did not affect or had only a tenuous connection
to the evidence produced.” Arreola-Botello, 

(internal quotation marks omitted). The burden of proof on
that issue rests with the state. 

 (explaining that “[i]t is
the state’s burden to prove that the consent was indepen-
dent of, or only tenuously related to, the illegal police con-
duct” (internal quotation marks omitted)); see also State v.
Gabr, 

, 

 (2023) (“The state
bears the burden of proof and persuasion that the viola-
tion of a defendant’s rights had such a tenuous factual link
to the disputed evidence that the unlawful police conduct
cannot be properly viewed as the source of that evidence.”);
State v. Jackson, 

, 

 (2014)
(explaining that the state can rebut the presumption that
evidence was tainted by a constitutional violation and must
be suppressed “by establishing that the disputed evidence
did not derive from the preceding illegality” (internal quota-
tion marks omitted)). The state did not argue before the trial
court, nor does it argue on appeal, that defendant’s consent
to the patdown and search of his pockets was not affected
by or was only tenuously related to Meekisho’s unlawful
inquiry. Thus, we readily conclude that the state did not
carry its burden. Accordingly, the trial court erred in deny-
ing defendant’s motion to suppress the evidence.
          Finally, although no party on appeal addresses the
issue, we must address the question of harmlessness because
we have an independent obligation under the state constitu-
tion. See, e.g., State v. Sperou, 

, 

(2019). In so doing, we will affirm a judgment, despite any
error committed at trial, if we determine that there is lit-
tle likelihood that the particular error affected the verdict.
State v. Aguilar, 

, 

 (2020);
see also State v. Davis, 

, 

 (2003)
(explaining that, under Article VII (Amended), section 3,
of the Oregon Constitution, an appellate court will affirm
a judgment if there is “little likelihood that the particular
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error affected the verdict”). Meekisho discovered heroin and
methamphetamine during the search of defendant’s pocket
and later search of his vehicle, which was admitted during
the bench trial to support his conviction of possession and
delivery of both substances. For those reasons, we conclude
that the trial court’s error in failing to grant the motion to
suppress was not harmless.3
           Reversed and remanded.




    3
      Our conclusion that the trial court erred in denying the motion to suppress
obviates the need to address defendant’s additional contentions raised on appeal,
including the state’s partial concession based on State v. Hubbell, 

, 

 (2023).