422 P.3d 391
Or. Ct. App.2018Background
- Officer Lutu stopped defendant for a traffic infraction; defendant appeared extremely nervous, made furtive movements toward the center console, and reached under the driver’s seat.
- Defendant provided slow/inconsistent identification details and suggested the officer search the passenger’s purse, saying she had "dirty rigs and the marijuana."
- The passenger consented to a search of her purse and a black bag on the floor; officers found drug paraphernalia, empty small baggies, and a plastic baggie of methamphetamine.
- Based on the passenger’s drugs and packaging plus defendant’s furtive shielding movements and statements, Lutu searched the vehicle without a warrant.
- In a safe under the driver’s seat officers found large quantities of methamphetamine and packaging consistent with distribution; defendant moved to suppress but was convicted; he appealed the denial of the suppression motion.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the warrantless search of the vehicle was supported by probable cause under the automobile exception | Passenger consent search revealed narcotics and packaging; combined with defendant’s furtive movements and his statement tying him to the passenger, a reasonable officer could conclude evidence of drug distribution would be in the vehicle | The passenger’s possession alone did not create probable cause to search defendant’s vehicle; officer lacked nexus tying passenger’s contraband to defendant or the vehicle | The court held there was probable cause: the totality (furtive movements, defendant’s statement, passenger’s contraband/packaging) created a nexus supporting the search |
| Whether furtive movements alone can support probable cause | Furtive gestures, when combined with other suspicious facts and officer experience, contribute to probable cause | Furtive gestures are insufficient by themselves and risk improper stacking of inferences | Held: Furtive movements contributed to probable cause here because they were contemporaneous with other corroborating facts |
| Whether Herrin controls (passenger’s contraband insufficient to search driver’s car) | Distinguished Herrin: unlike Herrin, officers here had individualized suspicion of the driver and a statement linking driver and passenger | Relied on Herrin to argue no sufficient connection between passenger’s items and driver/vehicle | Held: Herrin is distinguishable; facts here provided the necessary connection |
| Whether automobile exception should be overruled | State endorses continued validity of automobile exception | Defendant suggested abandoning automobile exception (alternative) | Court declined to revisit automobile exception and applied it to affirm search validity |
Key Cases Cited
- State v. Herrin, 323 Or. 188 (1996) (passenger contraband did not, by itself, supply probable cause to search the driver’s vehicle)
- State v. Andersen, 361 Or. 187 (2017) (automobile exception requires vehicle mobility and probable cause that the vehicle contains evidence of a crime)
- State v. Anspach, 298 Or. 375 (1984) (probable cause requires a nexus showing seizable items will probably be found in the place searched)
- State v. Foster, 350 Or. 161 (2011) (probable cause analysis uses totality of circumstances and officer training/experience)
- State v. Martin, 260 Or. App. 461 (2014) (probable cause requires it be more likely than not that the unlawful explanation is the actual explanation)