380 P.3d 1144
Or. Ct. App.2016Background
- At ~7:30 a.m. Oregon State Trooper Nelson approached a parked car at a rest area; defendant had been sitting in the driver’s seat and a passenger in the front seat.
- Through the open passenger window Nelson saw a torn clear plastic baggie with brown, gooey residue on the passenger seat next to the passenger’s right leg; Nelson believed it was heroin residue based on his training.
- Nelson told both occupants “This isn’t a stop,” then handcuffed and arrested both, advising Miranda rights; he later obtained defendant’s admissions and consent to search the car, which produced more drugs, paraphernalia, and cash.
- Defendant moved to suppress post-arrest statements and evidence as the product of an unlawful warrantless arrest under Article I, § 9 (Oregon Const.). The trial court denied suppression, concluding Nelson had probable cause to arrest defendant for constructive possession.
- Defendant was convicted by the trial court; on appeal the court reversed, holding Nelson lacked objective probable cause to believe defendant actually or constructively possessed the heroin residue and that the state’s alternative “lack of exploitation” argument was not preserved below.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Whether officer had objective probable cause to arrest defendant for possession based on baggie on passenger seat | Probable cause existed because baggie was within arm’s reach in same car and officer’s narcotics experience supported inference of constructive possession | No probable cause: baggie was next to passenger, out of defendant’s sight; only proximity and nervousness, not facts linking defendant to control | Held: No objective probable cause to arrest defendant — proximity alone insufficient to infer constructive possession |
| Whether suppression was required of evidence from consent search following arrest | (Below) Argued arrest was lawful; (on appeal) argues consent was voluntary and evidence not exploited by arrest | Consent was tainted by unlawful arrest; state did not argue lack of exploitation below so cannot assert it on appeal | Held: Court declined to consider state’s belated lack-of-exploitation argument; suppression denial was error and reversal required |
| Whether the arrest could be treated as a lesser detention supported by reasonable suspicion | Nelson had at least reasonable suspicion to investigate | Arrest lacked probable cause even if reasonable suspicion existed; trial court treated it as arrest | Held: Court focused on probable cause; reasonable suspicion insufficient to justify arrest or to salvage suppression ruling when not argued below |
| Whether error was harmless given evidence obtained after arrest | State: subsequent consent and admissions break the causal chain | Defendant: evidence flowed from unlawful arrest and was essential to convictions | Held: Error not harmless; reversal and remand required |
Key Cases Cited
- State v. Unger, 356 Or 59 (Oregon 2014) (consent after unlawful conduct must not be product of exploitation)
- State v. Musser, 356 Or 148 (Oregon 2014) (applies Unger framework to consent following unlawful police action)
- State v. Lorenzo, 356 Or 134 (Oregon 2014) (same trilogy on exploitation analysis)
- State v. Miller, 157 Or App 489 (Or. Ct. App. 1998) (constructive possession inference where drugs near defendant’s personal effects and defendant intoxicated)
- State v. Fry, 191 Or App 90 (Or. Ct. App. 2003) (proximity alone to contraband in vehicle insufficient to support constructive possession)
- State v. Suppah, 358 Or 565 (Oregon 2016) (standard for reviewing suppression motions; trial court factual findings binding if supported)
- State v. Gibson, 268 Or App 428 (Or. Ct. App. 2015) (warrantless arrest permissible under Article I, § 9 only with probable cause)
- State v. Ehly, 317 Or 66 (Oregon 1993) (review of suppression motions: facts upheld if supported; probable cause is legal question)
- State v. Daniels, 348 Or 513 (Oregon 2010) (ownership or control of premises does not automatically confer constructive possession of items belonging to others)