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State v. Davis

Court of Appeals of Oregon

July 6, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
STEVEN CHRISTOPHER DAVIS, Defendant-Appellant.

          Argued and submitted January 26, 2016.

         Washington County Circuit Court C132808CR Eric Butterfeld, Judge.

          John 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 Solicitor General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary:

         Defendant 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.

         Reversed and remanded.

          [286 Or.App. 529] ORTEGA, P. J.

         Defendant 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.

         We 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 investigating officer.

         On a 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.

         Powers 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."

         Powers 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 northeast ...


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