Argued and Submitted May 29, 2013.
201021634. Lane County Circuit Court. Charles D. Carlson, Judge.
Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Rebecca M. Johansen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Flynn, Judge.[*]
[271 Or.App. 64] DUNCAN, P. J.,
In this criminal case, defendant appeals the trial court's judgment convicting her of one count of unlawful possession of methamphetamine, ORS 475.894. Defendant argues that the trial court erred in denying her motion to suppress evidence obtained when a police officer searched her purse without a warrant. The trial court ruled that the officer's search of defendant's purse was a valid search incident to arrest. For the reasons explained below, we conclude that the officer's search was not a valid search incident to arrest because the officer did not have probable cause to arrest defendant. Therefore, the trial court erred in denying defendant's motion to suppress. Accordingly, we reverse and remand.
We review a trial court's denial of a motion to suppress for errors of law, and we are bound by the trial court's factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). Where the trial court did not make express findings and there is evidence from which the trial court could have found a fact in more than one way, we will presume that the facts were decided in a manner consistent with the trial court's ultimate conclusion. Id. at 75. We state the facts in accordance with those standards.
Defendant was a passenger in a truck driven by her husband, which was stopped by Oregon State Police Trooper Ratliff on suspicion of driving while intoxicated. Ratliff noticed that defendant's husband was " overly nervous" and that there was a bottle of alcohol on the seat, as well as many knives, lighters, and trash in the truck. Ratliff took defendant's husband's license, ran a records check on him, and learned that he was a " career criminal" on post-prison supervision. The conditions of defendant's husband's post-prison supervision prohibited him from drinking alcohol and from having contact with defendant. Ratliff asked defendant's
husband if she could search the vehicle, and he agreed. Ratliff had him step out of the truck, and she patted him down. Ratliff next asked defendant to get out of the [271 Or.App. 65] truck, which defendant was reluctant to do. When defendant finally got out of the truck, she grabbed her purse and tucked it " tightly" under her arm. At this point, as later determined by the trial court, defendant was free to leave. She did not leave.
Defendant was wearing a dress, and Ratliff did not believe she had any weapons in her pockets. Ratliff asked defendant if she had any weapons in her purse, and defendant replied, " I don't want you to search my purse." Defendant never told Ratliff whether or not she had weapons in her purse. In talking to defendant, Ratliff noticed that defendant had bruxism (grinding of teeth and clenching of jaw), and a " leathery look," and that her pupils were dilated. Ratliff knew from her training and experience that those were indicators of " drug use and long-term drug use." Additionally, according to Ratliff, the messy state of the truck also indicated long-term drug use.
For safety reasons, Ratliff instructed defendant to place her purse on the hood of Ratliff's patrol car, which defendant did reluctantly. When the purse was on the hood of the patrol car, it was open, and Ratliff saw a grey digital scale inside it. Based on her training and experience, Ratliff knew that digital scales are sometimes associated with distributing controlled substances. Ratliff ran a records check on defendant and determined that defendant had a " drug history." At that point, Ratliff concluded that she had probable cause to arrest defendant for possession of a controlled substance and to search defendant's purse for evidence of that crime.
Ratliff searched defendant's purse and removed her wallet. Inside defendant's wallet, Ratliff found small baggies, one of which contained methamphetamine. After discovering the methamphetamine, Ratliff arrested defendant for possession of a controlled substance, and the state subsequently charged defendant with one count of possession of methamphetamine.
[271 Or.App. 66] Prior to trial, defendant moved to suppress evidence of the methamphetamine, arguing that the search of her purse violated Article I, section 9, of the Oregon Constitution, because Ratliff lacked probable cause to arrest her. The state argued to the trial court that Ratliff had probable cause to arrest defendant for a drug crime and that the search of defendant's purse was therefore a valid search incident to arrest.
At the hearing on defendant's motion to suppress, Ratliff testified to the above facts and summarized the factors that caused her to believe that defendant was " more likely than not" in possession of drugs: " Inability to remain still, dilated pupils, that leather look--leathery skin--heavy bruxism." Ratliff went on to note that the " innocent motoring public doesn't generally have those indicators. They don't get out of ...