and submitted January 26, 2016.
County Circuit Court C132808CR Eric Butterfeld, Judge.
Evans, Deputy Public Defender, argued the cause for
appellant. With him on the brief was Peter Gartlan, Chief
Defender, Offce of Public Defense Services.
Jonathan N. Schildt, Assistant Attorney General, argued the
cause for respondent. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Paul L. Smith, Deputy
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
appeals a judgment of conviction for unlawful possession of
methamphetamine, asserting that the trial court erroneously
denied his motion to suppress. He contends that the police
officer's belief that defendant was under the influence
of intoxicants did not give the officer objectively
reasonable suspicion to investigate him for drug possession.
Held: An officer's reasonable suspicion that a
person is under the influence of intoxicants is insufficient
on its own to provide an objectively reasonable basis for
concluding that the person presently possesses
drugs-i.e., something more is required. In the
circumstances of this case, defendant's nervous behavior,
presence at a "known thoroughfare" for drugs, and
"rummaging" in his vehicle did not provide the
"something more" that is required to provide an
offcer who reasonably believes the person is under the
influence of intoxicants with reasonable suspicion that the
person presently possesses drugs.
Or.App. 529] ORTEGA, P. J.
challenges his conviction for unlawful possession of
methamphetamine, ORS 475.894, assigning error to the trial
court's denial of his motion to suppress. He argues that
the officer unlawfully extended an otherwise lawful stop by
investigating whether he possessed drugs without reasonable
suspicion. Although he acknowledges that the officer had
reasonable suspicion to initially stop him to investigate a
reported theft, he contends that the officer's
observation that defendant appeared to be under the influence
of intoxicants did not provide the officer with reasonable
suspicion to extend the stop while he investigated whether
defendant possessed controlled substances. The state responds
that, under the totality of the circumstances, the officer
had reasonable suspicion that defendant possessed drugs when
the officer began investigating drug possession. Ultimately,
we conclude that the officer's belief that defendant
possessed drugs was not objectively reasonable, and we
reverse and remand.
review a trial court's denial of a motion to suppress for
legal error, and are bound by the court's express factual
findings if evidence in the record supports them. State
v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). If the
trial court has not made an express factual finding, we
presume that the trial court found the facts in a manner
consistent with its ultimate conclusion. Id.
Consistently with that standard, we state the facts as they
were recounted at the suppression hearing by the
rainy morning just before 4:00 a.m., the Tigard Police
Department received a report that someone was trying to steal
gas from a closed gas station in Tigard. Officer Powers was
dispatched to investigate. Based on his experience, he knew
that the gas station was a "known thoroughfare for drug
users, drug deals" and that the gas station had "a
lot of problems with people *** [b]reaking in to the-the
bathroom there *** [a]nd either *** sleeping in there or
using drugs." The suspects were described as a male and
a female in a "dark-colored pickup, possibly a Toyota,
th[at] was slightly [raised] and had overhead lights."
Powers arrived at the station within two minutes of the [286
Or.App. 530] report and observed a "blue pickup, a
Toyota with * * * overhead spotlights, occupied by a male and
a female * * * parked under the covered kind of carport area
of the gas pumps." The pickup started to drive away when
Powers pulled in to the gas station. Powers activated his
emergency overhead lights and stopped the vehicle.
approached defendant, who was driving the pickup, and
explained that he was stopping defendant because he had
received a report that someone was stealing gas. Powers asked
to see defendant's driver's license. Defendant, who
along with his passenger, appeared "pretty nervous,
" provided the license and "kept telling"
Powers that he "didn't do anything wrong. Do you
want to search my car? Go for it." Powers found
defendant's statement odd because he had not asked
defendant "if there was anything in his car that I
should be alarmed of or if there was anything illegal in his
car." Defendant's voice was "pretty
excited" and he "kept fidgeting in the car."
asked defendant "where he was coming from" and
"where he was going." Defendant initially explained
that he was traveling from his home in northeast Portland to
the "beach." Powers found it "curious"
that someone would be heading to the beach at 4:00 a.m. on a
rainy morning. Defendant clarified that he was first headed
to a casino in McMinnville, and then "we'll probably
go to the beach." Defendant was vague about which
"beach" he was ultimately headed to, and Powers
found it "curious" that someone driving from