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,
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 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
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 Portland did not “have an idea of at least what beach [they were] going to.”
A backup officer arrived and Powers asked him to find the person who reported the suspected theft to see “what they actually saw.” Defendant proceeded to start “rummaging” around the cab of his pickup, which was cluttered and raised high enough so that Powers could not see defendant’s hands. Powers was concerned for his safety and asked defendant to step out of the vehicle. Once outside the vehicle, defendant kept putting his hands in his pockets and Powers repeatedly asked him to remove them from his pockets. Defendant continued to act very nervous—pacing back and forth, throwing his hands in the air, repeatedly saying “I didn’t do anything wrong. I was cleaning off my window.” Powers also noted that defendant failed to make eye contact “for very long.”
Based on his experience as a police officer, Powers suspected that defendant was under the influence of intoxicants. In particular, Powers noted that defendant was making “rapid and involuntary movements just with his hands,” he “couldn’t sit still,” “he was pacing back and forth,” and he was making some “random statements” including a confusing story about where he was coming from and where he was heading. Powers asked defendant if a drug detection canine would alert “on his pickup at all.” Defendant replied, “I have some weed in my pocket and that’s it.”
Powers asked defendant if he had an Oregon medical marijuana card, and when he replied that he did not, Powers asked defendant if marijuana was the only drug he had on his person, and defendant responded, “Yeah, you want to search me?” Powers searched defendant and found a small bag of methamphetamine and a small bag of marijuana in defendant’s pocket.
After defendant was charged with unlawful possession of methamphetamine, he moved to suppress the evidence discovered during the search. At the close of testimony at the suppression hearing, defendant argued, among other things, that Powers’ observations that defendant might have been under the influence of intoxicants is “not reasonable suspicion that [he] currently possess drugs.” The trial court denied the motion.
On appeal, defendant concedes that he was lawfully stopped by Powers on suspicion of theft, attempted theft, and criminal mischief, but argues that Powers unlawfully extended the stop into a drug possession investigation without reasonable suspicion. Thus, according to defendant, the trial court should have suppressed the evidence found in defendant’s pocket and any statements made by defendant during the unlawful extension of the stop. For its part, the state does not dispute that, when Powers asked defendant if a drug detection canine would alert “on his pickup,” Powers had shifted his investigation from theft to drug possession. The state argues that the shift in the investigation was supported by reasonable suspicion that defendant possessed drugs.
Article I, section 9, of the Oregon Constitution, requires a temporary restraint of a person’s liberty for an investigatory purpose—i.e., a “stop”—to be justified by “necessities of a safety emergency or by reasonable suspicion that the [stopped] person has been involved in criminal activity!.] ” State v. Ashbaugh,
Reasonable suspicion exists if a police officer “subjectively suspects that an individual has committed, or is about to commit, a crime, and that belief is ‘objectively reasonable under the totality of the circumstances.’” State v. Huffman,
Although “[o]fficer intuition and experience alone are not sufficient to meet that objective test[,]” State v. Holdorf,
Thus, our task on appeal is to determine the facts that were known to Powers at the time that he shifted his investigation to drug possession, and, whether, as a matter of law, those facts gave Powers objectively reasonable suspicion that defendant possessed controlled substances. See Sherman,
According to Powers’s testimony, when he asked defendant about the drug detection canine, he knew the following facts: (1) the gas station was a “known thoroughfare for drug users, drug deals” and had problems with “people damaging the property” and using drugs in the bathroom; (2) defendant was “very nervous”; (3) Powers found defendant’s explanation about his travel route and the timing of his trip suspicious; (4) based on Powers’s training and experience, defendant appeared to be under the influence of methamphetamine; and (5) defendant was “rummaging” around the cab of his truck, and when he got out, he repeatedly reached his hands into his pockets despite being told to stop.
Defendant argues that those facts are not enough to show an objectively reasonable suspicion of drug possession. In defendant’s view, the facts articulated by Powers showed, at most, an objectively reasonable belief that defendant was under the influence of intoxicants, which defendant asserts is insufficient
Defendant is correct that we have required more than mere intoxication or evidence of past drug use to demonstrate reasonable suspicion of current drug possession. In State v. Miller,
Nevertheless, when the officer reasonably believes that the defendant is under the influence of intoxicants, reasonable suspicion of drug possession can be demonstrated when “something more” is present. For example, in State v. McHaffie,
Therefore, the question is whether, in the totality of the circumstances, the additional facts articulated by Powers provide the “something more” in this case to show objectively reasonable suspicion of drug possession. As we explain below, we conclude that the additional facts articulated by Powers add little or nothing to the reasonable suspicion calculus, and without an adequate explanation by Powers as to why those additional facts collectively were suggestive of drug possession, those facts do not provide the “something more” that is required to demonstrate objectively reasonable suspicion of drug possession.
We begin with Powers’s observation that defendant was “very nervous” and Powers’s belief that defendant’s explanation about his travel route and the timing of his trip was suspicious. First, “nervousness during a traffic stop contributes little, if any, weight toward reasonable suspicion that the driver is engaged in criminal activity.” State v. Espinoza-Barragan,
We also conclude that Powers’s observation that defendant was “rummaging”
Finally, the location of the stop—at a “known thoroughfare for drug users, drug deals”—does not add much to the calculus on its own. “We have repeatedly said that a person’s presence in a location associated with drug activity is insufficient to support an objectively reasonable belief that that person is himself or herself engaged in drug activity.” State v. Bertsch,
Therefore, other than Powers’s observation that, based on his training and experience, defendant was exhibiting signs of controlled substance intoxication, none of the other facts articulated by Powers add much of anything to the reasonable suspicion calculus when considered in isolation. And, even when we consider those facts—as we must— in the totality of the circumstances, we conclude that they do not provide the “something more” that is necessary to demonstrate objectively reasonable suspicion that defendant possessed drugs.
To recap, defendant’s nervousness and his “suspicious” explanation of his travel plans add nothing to objectively reasonable suspicion of drug possession. Similarly, defendant’s “rummaging” behavior adds nothing to the calculus because, although certain “indexing” behaviors can contribute to suspicion of possession of drugs or contraband, Powers’s explanation in this case was that defendant’s rummaging behavior was concerning for officer safety reasons, not indicative of contraband possession. And finally, Powers’s vague explanation that the location of the stop was a “known thoroughfare for drug users, drug dealers” adds very little to the calculus—at least, in the absence of other specific and articulable facts about the encounter that show defendant’s presence at that location was suggestive of drug possession.
Accordingly, even considering all the facts articulated by Powers in the totality of the circumstances, the “something more”
The state asserts that, even if Powers extended the stop without reasonable suspicion of drug possession, we should affirm the judgment because defendant voluntarily consented to a search of his person. The state acknowledges that it did not address in the trial court whether defendant’s consent was attenuated from any unlawful extension of the stop, but nonetheless asserts that, because the state established that defendant voluntarily consented to a search in noncoercive circumstances, that was enough, by itself, to establish attenuation. As we noted in State v. Keller,
In the alternative, the state asks us to remand the case for the parties to present evidence and argument on attenuation. We decline to do so. See State v. Jones (A154424),
Because the evidence that should have been suppressed was essential to defendant’s conviction, the error was not harmless.
Reversed and remanded.
Notes
The state implicitly acknowledges that the record lacks evidence that Powers’s investigation into whether defendant possessed drugs occurred during an “unavoidable lull” in Powers’s theft investigation. See State v. Kimmons, 271 Or App 592, 601-02,
The state argues that we should decline to consider defendant’s argument that reasonable suspicion did not support Powers’s investigation into drug possession because “to the extent that [defendant] raised it in the trial court, he did so in a way that frustrates the purposes of the preservation rule.” Without further written discussion, we reject the state’s suggestion that defendant failed to preserve the argument he makes on appeal.