Defendant appeals a judgment of conviction for illegal possession and delivery of controlled substances. He raises a single argument on appeal, asserting that the trial court erred when it denied his motion to suppress evidence that a police officer obtained following defendant’s warrant-less arrest. Defendant contends that the officer lacked probable cause to believe that defendant had committed a crime and, therefore, acted unlawfully when he made the arrest. Defendant also argues that the officer obtained the evidence in question through exploitation of that unlawful arrest. Accordingly, defendant concludes, the trial court should have granted his motion to suppress. For the reasons set out below, we agree that the trial court should have granted defendant’s suppression motion. Accordingly, we reverse and remand.
As Nelson drove by the parked car, he saw defendant get out of it through the driver-side door, and begin walking around to the front of the car. Nelson testified that he parked near the car, without blocking it or turning on his overhead lights, and walked towards defendant. As he approached, Nelson noticed “an expression of pure fear on [defendant’s] face.” He asked defendant, “What’s going on?” and defendant replied, “Nothing.” Through the open passenger-side window, Nelson saw that the passenger appeared to be sleeping. Nonetheless, he asked the passenger, “What’s going on?” to which the passenger replied, “Nothing. I’m sleeping.” Nelson expressly told both defendant and the passenger, “This isn’t a stop.”
Through the open passenger-side window, Nelson saw a small piece of clear plastic on the seat by the passenger’s right leg. Nelson testified that the plastic was torn and pulled apart, revealing a brown, gooey residue. Nelson believed — based on his training and experience— that the gooey substance was heroin residue. He testified that the plastic looked like a “heroin baggie” that had been ripped apart, which he had “seen * * * hundreds of times.” Although the baggie was not visible from the driver seat, “it was within an arm span where [defendant] was seated in the vehicle.”
Based on his observation of the baggie, Nelson believed that he had probable cause to arrest both defendant and the passenger for possession of heroin. He ordered the passenger out of the car, handcuffed defendant and the passenger, and advised both men of their Miranda rights. Nelson told defendant that he was being arrested because Nelson had observed drug paraphernalia in the car. Defendant asked, “What kind of drug paraphernalia?” Nelson told defendant that he had seen heroin residue.
Nelson and other officers questioned defendant and the passenger over the course of the next hour. Defendant eventually admitted that he owned the controlled substances in the car and worked as a drug dealer. He also gave Nelson consent to search the car. That search revealed additional drugs, paraphernalia, and cash.
The state charged defendant with delivery of heroin, ORS 475.850, possession of heroin, ORS 475.854, and possession of methamphetamine, ORS 475.894. Defendant filed a pretrial motion to suppress his post-arrest statements and the evidence that officers discovered following his arrest. Defendant argued that suppression was required under Article I, section 9, of the Oregon Constitution because “police unlawfully seized him.”
The trial court denied defendant’s suppression motion on the ground that Nelson acted lawfully when he arrested defendant because he had probable cause to believe that defendant and the passenger had been “in joint possession of the controlled substance.” After the court denied defendant’s suppression motion, the parties tried the case to the court based on the evidence that the state had offered during the suppression hearing. The trial court convicted defendant of all the crimes charged.
On appeal, defendant asserts largely the same arguments that he made below. Specifically, defendant contends that the trial court erred when it denied his suppression motion because the arrest “was conducted without objective probable cause that defendant actually
In response, the state argues that Nelson’s arrest of defendant was lawful because Nelson had probable cause to believe that defendant possessed heroin. The state also contends that suppression was not required even if the arrest was unlawful because (1) Nelson had at least reasonable suspicion that defendant possessed heroin and therefore could have detained him briefly to investigate the suspected crime, and (2) nothing about defendant’s arrest — as opposed to a permissible detention — led to discovery of the incriminating evidence, which followed defendant’s consent to search the car. In other words, as defendant anticipated in his appellate brief, the state now argues that Nelson did not exploit any illegality in obtaining that evidence.
We begin our analysis by considering whether Nelson’s arrest of defendant was supported by probable cause. “A warrantless arrest is permissible under Article I, section 9, of the Oregon Constitution if the arresting officer has probable cause to believe that the person has committed a crime.” State v. Gibson,
Under Article I, section 9, “probable cause exists only if the arresting officer subjectively believes that it is more likely than not that an offense has been committed and that belief is objectively reasonable.” State v. Williams,
The issue before us in this case is whether Nelson had objective probable cause to believe that defendant either actually or constructively possessed the heroin residue that Nelson spotted on the car seat next to the passenger’s leg.
In this case, it is undisputed that Nelson spotted, from a lawful vantage point, a baggie containing heroin residue inside of the car in which defendant had been sitting. It is also undisputed that, because the baggie had been located on the passenger’s seat, next to the passenger’s leg, Nelson had probable cause to arrest the passenger for unlawful possession of heroin. The only question here is whether that same observation also provided Nelson with probable cause to arrest defendant.
We conclude that Nelson’s observation of the heroin-contaminated baggie did not, under the circumstances here, give him
Here, the record includes little evidence beyond such proximity, and we conclude that the evidence does not support an inference that defendant probably was aware of the heroin residue, much less that he had a right to control it. At the time he arrested defendant at the rest stop, Nelson was aware of the following facts: (1) defendant had been sitting in the driver’s seat of a car parked at the rest stop; (2) a plastic baggie containing a brown, gooey substance consistent with heroin residue was located on the passenger seat of that car, outside of defendant’s line of sight; (3) defendant acted nervously and looked afraid when he saw Nelson; and (4) the rest stop was known for illegal drug activity. Nelson certainly could draw on his training and narcotics-investigation experience in evaluating those facts, which might well have been sufficient to give him reasonable suspicion that defendant was engaged in criminal activity. Nonetheless, for the reasons that follow, we conclude that Nelson’s observations did not give rise to objective probable cause to believe that defendant possessed heroin at the time of his arrest.
As noted, the baggie with heroin residue was not in defendant’s line of sight; that is, it would not have been visible from where defendant had been sitting. Nothing in the record suggests that the baggie or residue had an appearance indicating that those items were remnants of recent heroin ingestion of which defendant would have been aware. Indeed, Nelson did not testify that he believed that either defendant or the passenger was under the influence of narcotics at the time he arrested defendant. In short, Nelson did not describe anything particular about the small residue-contaminated baggie — other than its proximity to defendant— that suggested that defendant would have been aware of that item.
Nor does defendant’s presumed control of the car (given that he had been sitting in the driver’s seat) give rise to probable cause that he controlled everything within the vehicle, including property that apparently was in another person’s possession. See, e.g., State v. Daniels,
This case differs significantly from those in which we have held that people in a car constructively possessed contraband found in that car, even though they did not actually possess it. For example, in Miller, we determined that the state’s evidence was sufficient to create objective probable cause that the defendant, a passenger in a car, constructively possessed methamphetamine that was found there.
Helpful guidance may also be found in cases in which — affirming trial courts’ denials of motions for judgment of acquittal on drug-possession charges — we relied on evidence suggesting an illegal drug-dealing enterprise to conclude that the record supported an inference that the defendant constructively possessed drugs that were found nearby. See Sherman,
Instead, the circumstances in this case are more analogous to those in State v. Fry,
In sum, we agree with defendant that the record was insufficient to permit an inference that defendant probably was aware of the baggie and constructively possessed it. The trial court erred in concluding otherwise.
As noted, the state argues that, even if Nelson’s arrest of defendant was unlawful, suppression was not required because defendant consented to the search of his car following that arrest, which did not taint the consent. That argument implicates the “exploitation” analysis that the Supreme Court described in a trilogy of cases: State v. Unger,
The state, applying the exploitation framework laid out in Unger, argues that defendant’s consent to search was not prompted by the illegal arrest, which the state asserts “had only a de minimis coercive effect” on defendant. However, as defendant points out,
Defendant contends that the record might have developed differently had the state raised the exploitation argument below. We agree and, accordingly, decline to address that belatedly raised argument. See State v. Mullens,
Reversed and remanded.
Notes
Article I, section 9, guarantees that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure!.]”
Defendant does not contend that Nelson lacked subjective probable cause; rather, he argues only that the totality of the circumstances did not objectively establish the reasonableness of Nelson’s beliefs that defendant possessed heroin at the time of his arrest.
The state did argue below that defendant voluntarily consented to the search. But “voluntariness of consent” and “exploitation” are distinct inquiries. See Unger,