State v. Davis, 400 P.3d 994

Around 4:00 a.m. officer Powers responded to a report of attempted gas theft at a Tigard gas station known for drug use and prior problems; he observed a blue, raised Toyota with a male driver and female passenger that matched the report and stopped it.
Powers asked for ID; defendant appeared "very nervous," fidgeted, gave a confused account of travel (initially "to the beach," later a casino then beach), and was vague about which beach.
Defendant rummaged in the cluttered, raised cab; Powers, concerned for safety, had him step out; defendant paced, put his hands in his pockets, avoided eye contact, and otherwise displayed signs Powers associated with intoxication.
Based on training and experience Powers suspected methamphetamine intoxication; he asked whether a drug dog would alert on the truck and defendant volunteered, "I have some weed in my pocket and that’s it," then consented to a search that revealed methamphetamine and marijuana.
Defendant moved to suppress; the trial court denied the motion. On appeal the court framed the dispositive issue as whether Powers had reasonable suspicion of drug possession when he shifted the investigation from theft to drugs by asking about a drug dog.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Ortiz)	Held
Whether officer had reasonable suspicion to extend a theft stop into a drug-possession investigation when he asked about a drug dog	Totality of circumstances (location, nervousness, travel story, rummaging, signs of intoxication, officer experience) supported an objectively reasonable suspicion of current drug possession	Stop was lawfully initiated for suspected theft but officer unlawfully extended it; observations at most showed intoxication and nervousness, which alone do not supply reasonable suspicion of present drug possession	Reversed: officer lacked objectively reasonable suspicion to investigate drug possession when he shifted the inquiry; suppression should have been granted

State v. Ehly, 317 Or. 66 (1993) (standard of review for suppression rulings; deference to trial court fact findings)
State v. Ashbaugh, 349 Or. 297 (2010) (Article I, §9 stop justified by reasonable suspicion or safety emergency)
State v. Sherman, 274 Or. App. 764 (2015) (a lawful stop may only endure for investigation related to its basis; extensions require new reasonable suspicion)
State v. Miller, 267 Or. App. 382 (2014) (intoxication alone is insufficient to support reasonable suspicion of present drug possession)
State v. Holdorf, 355 Or. 812 (2014) (officer training/experience may be given weight but must be tied to specific articulable facts)
State v. McHaffie, 271 Or. App. 379 (2015) (reasonable suspicion of possession supported where intoxication plus indexing behavior and links to known users/dealers provided "something more")
State v. Berry, 232 Or. App. 612 (2009) (nervousness and presence in a high-crime area generally contribute little to suspicion of drug possession)