unavoidable lull rule in Oregon

2022In Arreola-Botello (which was decided after the sup- pression hearing in this case), the Supreme Court rejected the unavoidable lull doctrine and held 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 .

2021Held: After the trial court ruled on defendant’s motion to suppress, the Supreme Court issued its decision in State v. Arreola- Botello, 365 Or 695 , 451 P3d 939 (2019), abolishing the unavoidable-lull doctrine.

2021Cite as 309 Or App 218 (2021) 227 303 Or App at 645 (no remand required to allow trial court to address previously unaddressed factual and legal issues pertaining to seizure where “the record, viewed in the light most favorable to the state, allows for but one conclusion” on the relevant point).

2021State v. Unger, 356 Or 59, 94-103 , 333 P3d 1009 (2014) (Landau, J., concurring). 4 In her initial brief to this court, filed before the Supreme Court rejected the unavoidable lull doctrine that had been the focus of the parties’ argument below, defendant changed course and argued for the first time that she had been seized before the dog sniff and that that seizure was unlawful because it was not supported by reasonable suspicion.

2021State v. Unger, 356 Or 59, 94-103 , 333 P3d 1009 (2014) (Landau, J., concurring). 4 In her initial brief to this court, filed before the Supreme Court rejected the unavoidable lull doctrine that had been the focus of the parties’ argument below, defendant changed course and argued for the first time that she had been seized before the dog sniff and that that seizure was unlawful because it was not supported by reasonable suspicion.

2013That proposition remains good law[J” Hall, 238 Or App at 83 .

2013After concluding that the Supreme Court’s decision in Rodgers /Kirkeby did not speak to the continuing viability of the unavoidable lull rule, we reaffirmed the rule, stating: “In State v. Amaya, 176 Or App 35 , 29 P3d 1177 (2001), aff’d on other grounds, 336 Or 616 , 89 P3d 1163 (2004), we held that there are no Article I, section 9, implications if an inquiry unrelated to a traffic stop occurs during a routine stop but does not delay it.

2013After concluding that the Supreme Court’s decision in Rodgers /Kirkeby did not speak to the continuing viability of the unavoidable lull rule, we reaffirmed the rule, stating: “In State v. Amaya, 176 Or App 35 , 29 P3d 1177 (2001), aff’d on other grounds, 336 Or 616 , 89 P3d 1163 (2004), we held that there are no Article I, section 9, implications if an inquiry unrelated to a traffic stop occurs during a routine stop but does not delay it.

2013After concluding that the Supreme Court’s decision in Rodgers /Kirkeby did not speak to the continuing viability of the unavoidable lull rule, we reaffirmed the rule, stating: “In State v. Amaya, 176 Or App 35 , 29 P3d 1177 (2001), aff’d on other grounds, 336 Or 616 , 89 P3d 1163 (2004), we held that there are no Article I, section 9, implications if an inquiry unrelated to a traffic stop occurs during a routine stop but does not delay it.

2013After concluding that the Supreme Court’s decision in Rodgers /Kirkeby did not speak to the continuing viability of the unavoidable lull rule, we reaffirmed the rule, stating: “In State v. Amaya, 176 Or App 35 , 29 P3d 1177 (2001), aff’d on other grounds, 336 Or 616 , 89 P3d 1163 (2004), we held that there are no Article I, section 9, implications if an inquiry unrelated to a traffic stop occurs during a routine stop but does not delay it.

2012Rodgers, 219 Or App at 372 ; see also Amell, 230 Or App at 340 ; Gomes, 236 Or App at 371 (“[A] police officer unnecessarily and unlawfully extends the duration of a traffic stop when the officer begins a line of questioning unrelated to the traffic stop after having obtained, or instead of obtaining, the information necessary to proceed with citing the defendant.”); State v. Dennis, 250 Or App 732, 739 , 282 P3d 955 (2012) (observing that, in Gomes , we confirmed that the unavoidable lull rule articulated in Rodgers was unaffected by the Supreme Court’s Rodgers/Kirkeby decision.

2012Rodgers, 219 Or App at 372 ; see also Amell, 230 Or App at 340 ; Gomes, 236 Or App at 371 (“[A] police officer unnecessarily and unlawfully extends the duration of a traffic stop when the officer begins a line of questioning unrelated to the traffic stop after having obtained, or instead of obtaining, the information necessary to proceed with citing the defendant.”); State v. Dennis, 250 Or App 732, 739 , 282 P3d 955 (2012) (observing that, in Gomes , we confirmed that the unavoidable lull rule articulated in Rodgers was unaffected by the Supreme Court’s Rodgers/Kirkeby decision.

2012Rodgers, 219 Or App at 372 ; see also Amell, 230 Or App at 340 ; Gomes, 236 Or App at 371 (“[A] police officer unnecessarily and unlawfully extends the duration of a traffic stop when the officer begins a line of questioning unrelated to the traffic stop after having obtained, or instead of obtaining, the information necessary to proceed with citing the defendant.”); State v. Dennis, 250 Or App 732, 739 , 282 P3d 955 (2012) (observing that, in Gomes , we confirmed that the unavoidable lull rule articulated in Rodgers was unaffected by the Supreme Court’s Rodgers/Kirkeby decision.