In this criminal case, defendant appeals the trial court’s judgment convicting and sentencing him for one count of delivery of methamphetamine, ORS 475.890.
We begin with the facts, which we state consistently with the trial court’s findings. Around 2:00 a.m. on September 11, 2009, Deputy Landers of the Marion County Sheriff’s Department was driving a marked patrol car southbound on 1-5 in Salem, near the Portland Road exit. He noticed a Dodge
Landers approached the Durango, introduced himself to defendant, told defendant why he had stopped him, and asked defendant for his license, registration, and proof of insurance. Defendant’s primary language is Spanish, but, according to Landers, defendant was able to understand his questions and he understood defendant’s answers.
The Durango is a large vehicle, with three rows of seats. Defendant had two passengers: a male sleeping in the front passenger seat and another male lying across the middle row of seats. While defendant was gathering the paperwork that Landers had requested, Landers asked him where he was going. Defendant answered, “Denny’s.” Landers asked where defendant had come from, and defendant answered “Tacoma.” Given that answer, Landers tried to clarify where defendant was going and asked defendant for his “final destination.” Defendant again answered, “Denny’s.” When Landers asked defendant why he would drive from Tacoma to go to the Denny’s in Salem, defendant answered that he was traveling to San Jose to pick up his wife and son and had stopped to get something to eat and rest. Landers asked how long defendant planned to stay in San Jose, and defendant held up two fingers and said two days.
While defendant continued to look for the requested paperwork, Landers obtained identification information from the two passengers. Defendant gave Landers his license, but explained that he did not have registration or insurance information for the Durango because he had bought it a few days earlier. Defendant gave the vehicle sale paperwork to Landers. Landers returned to his patrol car; on his way, he looked inside the Durango and did not see any luggage.
While back at his patrol car, Landers examined the vehicle sale paperwork, which indicated that defendant had purchased the Durango on September 5, six days earlier. As Landers later recalled at the hearing on defendant’s motion to suppress, the total sale price was “roughly $4,200,” defendant had paid $3,700 cash, and he owed “roughly $506.”
Also while back at his patrol car, Landers checked the status of defendant and his two passengers. He learned that there were no warrants for defendant or his passengers. Landers suspected that defendant and his passengers were involved in drug trafficking, and he called for a second officer to come to the scene. Officer Hickam arrived within five minutes.
Landers returned to the Durango and asked defendant to step out of the Durango, which defendant did. Landers continued to question defendant about his trip. Eventually, Landers asked defendant if he had anything illegal with him, such as drugs or weapons, and defendant answered that he did not. Landers obtained defendant’s consent to search defendant and the Durango. In the Durango, Landers found a backpack behind the driver’s seat and a zippered bag on the third row seat. He searched the backpack and zippered bag and found methamphetamine and large amounts of cash. Landers arrested defendant and his two passengers, and they were charged with delivery of methamphetamine.
Defendant filed a motion to suppress the evidence discovered after Landers asked him to step out of the Durango. Defendant argued
At the hearing on defendant’s motion to suppress, Landers testified that he had received training about “indicators” that a person is involved in drug trafficking. Specifically, he testified that he had taken three courses about indicators of drug trafficking on 1-5. According to Landers, “unusual behaviors” can be indicators of drug trafficking.
Landers testified that defendant’s behavior was unusual and gave rise to reasonable suspicion of drug trafficking because defendant (1) did not make eye contact, (2) slowed down and took the next exit off the highway, (3) twice said that he was going to Denny’s before clarifying that he was stopping at Denny’s while en route to San Jose, (4) held up two fingers when he said he was going to be in San Jose for two days, (5) did not appear to have any luggage, and (6) was driving a car that he had recently purchased with cash, for which he did not have registration or insurance information.
The trial court concluded that Landers extended the traffic stop when he asked defendant to step out of the Durango. The court further concluded that the extension did not violate Article I, section 9, because, according to the court, “taken in totality, *** the relevant facts known to Landers at [that time] did give rise to a reasonable suspicion of criminal activity * *
On appeal, the issue is whether Landers’s extension of the traffic stop into a criminal investigation for drug trafficking was supported by reasonable suspicion that defendant was engaged in criminal activity. An officer has reasonable suspicion that a person has committed or is about to commit a crime if the officer “holds a belief that is reasonable under the totality of the circumstances existing at the time and place” the officer acts. ORS 131.605; see also State v. Belt,
Both we and the Supreme Court have held, in cases involving traffic stops similar to the one in this case, that the officer conducting the stop did not have objectively reasonable suspicion to extend the duration of the stop in order to inquire about drug trafficking. Two cases are illustrative: State v. Dominguez-Martinez,
In Juarez-Godinez, an officer stopped the defendant for a traffic violation and extended the traffic stop to conduct a drug investigation. The defendant, who was Hispanic, was traveling on 1-5 with two passengers, who were also Hispanic. They told the officer that they were headed home to Tacoma from Eugene, where they had been visiting a relative. The officer believed that the defendant and his passengers were engaged in drug trafficking. He explained the reasons for his belief as follows:
“From my training and experience, I noticed several characteristics displayed by the occupants of the vehicle that I know are often the same characteristics displayed by known narcotics traffickers. I noticed a heavy odor of air freshener in the vehicle. I did not see any luggage in the vehicle. I noticed that all occupants were wearing newly purchased clothing. The driver was wearing a gold necklace, a gold ring, and had salon-styled hair. A third-party[vehicle] registration is also very common with narcotics traffickers. I also know through my training and experience that Tacoma, Washington, [defendant’s stated destination] is a frequent destination of narcotics traffickers.”
Id. at 606 (bracketed material in original; internal quotation marks omitted). The officer added that the registered owner of the car was on probation for delivery of a controlled substance, one of the two passengers had an unconfirmed drug offense, and the defendant had become nervous when the officer asked him to consent to a search of the car. Id. at 607. According to the officer, the defendant became “Visibly nervous, turn[ed] pale, agitated, [was] perspiring, and exhibited furtive eye movements.’”Id.
Relying on State v. Valdez,
“[A] clean-smelling car containing three well-dressed occupants en route to Tacoma does not provide an objectively reasonable basis, whether by itself or added to the other factors, to suspect that the vehicle contained contraband. The lack of visible luggage also adds nothing, because, with three adults riding in the vehicle, any luggage would likely have been placed in the trunk. Finally, there is no objective quality to any of [the officer’s] other observations that would entitle them to any weight. The registered owner of the vehicle was not even at the scene, and the alleged drug ‘record’ of the passenger was unspecified and unconfirmed.”
Similarly, in Dominguez-Martinez, the Supreme Court held that an officer did not have objectively reasonable suspicion to extend a traffic stop in order to conduct a drug investigation.
The facts of this case do not differ in any material way from those in Juarez-Godinez and Dominguez-Martinez. As in those cases, we conclude that the factors on which Landers relied to extend the duration of his stop of defendant did not give rise to reasonable suspicion.
As mentioned, Landers believed that defendant’s behavior was unusual and gave rise to reasonable suspicion of drug trafficking because defendant (1) did not make eye contact, (2) slowed down and took the next exit off the highway, (3) twice said that he was going to Denny’s before clarifying that he was stopping at Denny’s while en route to San Jose, (4) held up two fingers when he said he was going to be in San Jose for two days, (5) did not appear to have any luggage, and (6) was driving a car that he had recently purchased with cash, for which he did not have registration or insurance information.
As we understand Landers’s testimony, the first four indicators caused him to believe that defendant was nervous and evasive. Thus, Landers’s reasons for believing that defendant was engaged in drug trafficking reduce to three: (1) defendant was nervous and evasive, (2) he did not appear to have any luggage, and (3) he was driving a car that he had recently purchased with cash, for which he did not have registration or insurance information.
The same is true of a person’s legal efforts to avoid being stopped by or questioned by the police. On this point, State v. Frias,
In this case, defendant did not make eye contact as Landers passed him. In other words, defendant kept his eyes forward as he was driving down an interstate highway at 2:00 a.m. There is simply nothing suspicious about that; it is a completely neutral fact. It contributes nothing toward a reasonable suspicion of criminal activity.
After Landers dropped back behind defendant, defendant slowed down. Defendant then took the next exit, which led to a Denny’s. After Landers stopped defendant and asked where he was going, defendant provided a direct answer: Denny’s. In response to further questioning, he repeated that answer, before clarifying that he was stopping at Denny’s to eat and rest before continuing on to San Jose. When asked how long he would be in San Jose, defendant said two days and held up two fingers.
Even assuming that defendant slowed down and took the exit because he wanted to avoid contact with Landers and that defendant was intentionally withholding information from Landers, those facts contribute little, if anything, toward a reasonable suspicion of criminal activity. They are not materially different from the defendant’s evasiveness in Frias or the defendant’s transparently false explanation in Berry. They may support an inference that defendant did not want to engage with the officer or share information with him, but, of course, defendant was not required to do so. Moreover, as we have held, such an inference does not give rise to reasonable suspicion of criminal activity, even when combined with other
As to the second factor upon which Landers relied — the absence of any visible luggage — we conclude that that factor adds nothing to the reasonable suspicion calculus. When Landers walked back to his patrol car he did not see any luggage in the Durango, but that fact is not entitled to any weight, given the limited nature of Landers’s examination of the Durango. An officer cannot conclude that a driver is not carrying any luggage if the officer does not, or cannot, look into places in the driver’s vehicle that are likely to hold luggage. Juarez-Godinez,
Furthermore, even if defendant was not carrying luggage, that fact is one that we and the Supreme Court have considered, in combination with other facts, in similar cases and concluded that the officer did not have reasonable suspicion of drug activity. Dominguez-Martinez,
As to the third factor — that defendant was driving a vehicle that he had recently purchased with cash and for which he did not have proof of registration or insurance— we conclude that the factor also contributes little toward a conclusion that defendant was engaged in criminal activity. It is akin to the fact in Juarez-Godinez that the defendant was driving a car registered to a third party, a fact that was not sufficient, on its own or in combination with other facts that the officer believed were suspicious, to justify an extension of the traffic stop in that case.
Of course, the factors must be considered together. However, because the luggage factor is entitled to no weight, we are left with the facts that (1) defendant was nervous and his actions could be seen as reflecting a desire to avoid police contact and questioning and (2) he was driving a used car that he had recently bought for cash and for which he did not have registration or insurance information. As in similar cases, we conclude that those facts are not sufficient to give rise to reasonable suspicion of criminal activity. Therefore, Landers’s extension of the traffic stop violated Article I, section 9.
Because the extension violated Article I, section 9, and there is no dispute that evidence defendant sought to suppress was discovered as a result of that extension, the trial court erred in denying defendant’s motion to suppress.
Reversed and remanded.
Notes
ORS 475.890 provides, in part, “Except as authorized by ORS 475.005 to 475.285 and 475.752 to 475.980, it is unlawful for any person to deliver methamphetamine.”
Article I, section 9, provides, in part, “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure!.]”
In. his motion to suppress, defendant also relied on the Fourth Amendment to the United States Constitution, but he does not rely on the Fourth Amendment on appeal.