OR: Asking about drugs in car during an “unavoidable lull” in traffic stop was unreasonable under state constitution

Asking about drugs in the car during an “unavoidable lull” in the stop was unreasonable under the state constitution under Arreola-Botello. State v. McBride, 303 Ore. App. 292, 2020 Ore. App. LEXIS 433 (Apr. 1, 2020), on remand from 366 Ore. 97, 455 P.3d 925 (2020):

In this case, O’Donnell had probable cause to believe that defendant had committed a traffic infraction when she failed to signal a turn and, therefore, was permitted to stop her to investigate that infraction. But, like the officer in Arreola-Botello, O’Donnell asked a question that was not reasonably related to that investigation—i.e., whether defendant had drugs in her car. If there were evidence that, during the stop, O’Donnell “had learned facts giving rise to reasonable suspicion that defendant had engaged or was about to engage in criminal conduct, an expanded investigation could have been justified,” id. at 714, but in this case, there is no such evidence. At the time that O’Donnell asked whether defendant had drugs in her car, he did not have “any particularized [reasonable] suspicion that defendant had * * * controlled substances * * * in [her] vehicle.” Id. Because O’Donnell’s inquiry regarding drugs was not reasonably related to the purpose of the traffic stop, and did not have an independent constitutional justification, it violated the subject-matter limitation that Article I, section 9, imposes on investigative inquiries during an ongoing seizure.

Further, we conclude the evidence obtained as a result of O’Donnell’s unlawful question to defendant and obtained as a result of the search of defendant’s vehicle should be suppressed because it was the product of an unconstitutional act. See id. (recognizing that generally “evidence will be suppressed if the evidence was the product of an unconstitutional act”).