STATE OF OREGON, Plaintiff-Respondent, v. ROSA MARIA SANCHEZ-ANDERSON, Defendant-Appellant.
Washington County Circuit Court 16CR35517; A163078
Court of Appeals of Oregon
Argued and submitted January 9, 2018, reversed and remanded November 27, 2019
300 Or App 767 | 455 P3d 531
Eric Butterfield, Judge.
Reversed and remanded.
David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.*
DEHOOG, P. J.
Reversed and remanded.
______________
* DeVore, J., vice Hadlock, J. pro tempore.
Defendant appeals a judgment convicting her of three controlled-substance offenses: unlawful possession of heroin,
The state responds that our constructive-possession case law is inapposite, and argues that, under the totality of the circumstances—including facts suggesting defendant‘s involvement in a sizeable drug-trafficking operation with the vehicle‘s driver—there was probable cause to arrest her for unlawful methamphetamine possession. The state alternatively argues that the discovery of an empty, but used, syringe under defendant‘s seat supports an inference that she constructively possessed the drugs found in the vehicle. We conclude that the arresting officers lacked probable cause to arrest defendant and that, therefore, the trial court erred in denying defendant‘s motion to suppress evidence obtained as a result of that unlawful arrest. Because we further conclude that the cellphones at issue in defendant‘s other assignment of error were obtained as a result of that unlawful search and that the evidence of their contents was therefore subject to suppression, there is no need to decide whether the challenged warrant properly authorized a search of the phones. Accordingly, we reverse and remand.
When reviewing the denial of a motion to suppress, “[w]e state the facts consistently with the trial court‘s
While on routine patrol, Officer Haugen of the Beaverton Police Department noticed a passenger truck with out-of-state license plates in the parking lot of a motel that he knew to be frequented by drug traffickers. Haugen determined that the truck was a rental vehicle; he also knew that rental vehicles were a common choice among those engaged in drug trafficking. His interest thus piqued, Haugen approached the truck and saw, through a window, a lock box and “a large digital scale box,” both located on the floor behind the passenger seat. Haugen contacted motel staff and learned that a man named Mauel was associated with the truck and had rented a room at the motel. Haugen ran a records check on Mauel and discovered that he was on post-prison supervision for heroin possession. Moments later, Haugen saw Mauel leaving a motel room accompanied by defendant. The two approached the rental truck, and Mauel got into the driver‘s seat while defendant sat on the passenger side. Suspecting potential drug activity, Haugen first watched as Mauel began to drive away, and then, when he saw Mauel commit a minor traffic infraction while leaving the parking lot, Haugen initiated a traffic stop so that he could investigate further. Mauel, who was visibly nervous, handed Haugen a Washington driver‘s license and, as proof of registration, a rental agreement for the truck. As Mauel gathered those documents, Haugen asked defendant for her name and date of birth. Defendant provided that information, at which point Haugen “reminded her that she was free to leave.” Haugen noted that defendant appeared sickly and had facial sores, two signs that Haugen associated with “active” heroin or methamphetamine use, but it does not appear that he believed that defendant was under the influence at the time. After Haugen said that defendant could leave, she stepped out of the truck and began to walk away, taking her purse with her. While still at the scene, Haugen ran a records check using the information that
Meanwhile, another officer with a drug-detection dog had arrived at Haugen‘s request. When that officer told Haugen that the dog had alerted on Mauel‘s truck, Haugen proceeded to search the vehicle and its contents. He found considerable evidence of illegal drug activity in the lock box, the digital scale box, and the center console. In the lock box were “[m]ultiple used syringes that had a white crystal substance inside of them, [and] a digital scale with a brown-colored substance on it.” Based on his training and experience, Haugen recognized the two substances to be methamphetamine and heroin. The digital scale box contained a large digital scale “caked” with methamphetamine residue and more than 20 “pretty good-sized,” unused baggies that Haugen associated with the sale of larger quantities of drugs. The center console contained over $4,000 in cash, which Haugen also associated with drug trafficking. Haugen also found “a used, uncapped syringe“—one as to which he noted no drug residue—underneath the passenger seat, where it was “easily accessible to [defendant] but not Mauel.”2 In addition to finding physical evidence of drug possession and trafficking, Haugen concluded, based on his “experience dealing with the drug culture,” that defendant and Mauel were most likely involved in a sexual relationship that involved giving or discounting drugs in exchange for sex.
Based on the foregoing observations, Haugen determined that he had probable cause to arrest defendant for
On appeal, defendant assigns error to the denial of each of her motions to suppress. We begin with defendant‘s argument that her arrest and related search were not supported by probable cause. Defendant contends that her mere presence in the truck and her resulting proximity to the drug residue and related evidence of drug possession and trafficking were insufficient to support an objectively reasonable belief that, more likely than not, she actively or constructively possessed any of those items. Emphasizing that none of her belongings were found near the things that Haugen found, that she made no “furtive” movements when Haugen contacted her, and that she had been a passenger in Mauel‘s truck for only a short time before Haugen stopped them, defendant argues that there was no indication that she was even aware that drugs were in the vehicle, much less that they were under her ownership or control. As for her use of a false name and Haugen‘s hypothesis that she and Mauel were involved in a sex-for-drugs relationship, defendant suggests that those considerations add nothing to support the inference that she had the right to exercise control over the drugs and other items found in the vehicle. Thus, citing our opinion in Keller and related decisions, defendant argues that Haugen lacked an objective basis to believe that she had constructively possessed the contraband that he found in Mauel‘s truck, and, accordingly, lacked probable cause to arrest her for unlawful possession of methamphetamine.
We review the denial of a motion to suppress for legal error. Keller, 280 Or App at 253. “A warrantless arrest
Defendant does not dispute that Haugen subjectively believed that defendant had committed a crime; thus, we focus our inquiry on whether that belief was objectively reasonable.3 “To determine whether objective probable cause exists, ‘we consider the totality of the circumstances presented to the officer and reasonable inferences that may be drawn from those circumstances; no single factor is dispositive.‘” Keller, 280 Or App at 253 (quoting State v. Kappel, 190 Or App 400, 404, 79 P3d 368 (2003), rev den, 336 Or 509 (2004)). The totality of the circumstances includes “the officer‘s training and experience.” State v. Vasquez-Villagomez, 346 Or 12, 23, 203 P3d 193 (2009). However, generalized observations unconnected to the particular facts and circumstances of a case add little to the probable cause analysis. See State v. Webber, 281 Or App 342, 350-51, 383 P3d 951 (2016) (explaining, in the context of a search warrant affidavit, that for an officer‘s “training and experience” to establish the required nexus between the facts known to an officer and the inference of probable cause to be drawn, an officer is required to connect his or her training and experience to “objective facts derived from other sources” (internal quotation marks omitted)). To determine whether the facts are sufficient to support probable cause,
At issue in this case is whether Haugen‘s observations gave rise to probable cause to arrest defendant for the crime of unlawful possession of methamphetamine. Generally speaking, unlawful drug possession can be established through proof of either actual or constructive possession of a specific controlled substance. Keller, 280 Or App at 253; State v. Sherman, 270 Or App 459, 461, 349 P3d 573, rev den, 357 Or 596, (2015)). Actual possession requires ”actual physical control of the property.” Keller, 280 Or App at 253 (emphasis in original; internal quotation marks omitted). Constructive possession, on the other hand, is less direct, and describes a person‘s relationship to property found under the physical control of someone else or of no one at all. As to such property, “an officer has objective probable cause to believe that a person constructively possesses contraband if the circumstances show that, more likely than not, the defendant knowingly exercises control over the contraband or has the right to do so.” Id. (internal quotation marks omitted). Specific to this case, “[w]here the state seeks to prove that a person in a vehicle possessed drugs found in that vehicle, an inference of constructive possession is reasonable only if some facts link the defendant‘s presence in the vehicle where the drugs were observed to the defendant‘s right to control those drugs.” Id. at 254 (internal quotation marks, brackets omitted; emphasis added).
Applying those standards here, we conclude that, even when viewed through the lens of Haugen‘s training and experience, the totality of the circumstances—including defendant‘s connection to Mauel, the items found in Mauel‘s truck, defendant‘s appearance, and her apparent use of a false name—did not objectively establish a reasonable basis to believe that, more likely than not, defendant possessed methamphetamine, constructively or otherwise. As a result, the officer who arrested defendant and searched her incident to that arrest lacked probable cause to do so. The trial court, therefore, erred in denying defendant‘s motion to suppress.
We first address the state‘s argument that a constructive-possession analysis has no bearing on whether
First, as noted, the state does not contend that defendant actually possessed any of the contraband that Haugen found in the truck, and nothing in the record could support such a belief. Thus, given the state‘s theory that Haugen had probable cause to believe that defendant unlawfully possessed methamphetamine, that leaves only the possibility—at least as far as the drugs found before defendant was searched are concerned—that defendant‘s possession was constructive. See Keller, 280 Or App at 253 (noting that “unlawful drug possession may be established through proof of either actual or constructive possession” (citation omitted)). That is, although the state contends that Keller is distinguishable on its facts, we do not understand
Second, although it is true that, in Keller, 280 Or App at 256, we distinguished cases in which there was “evidence suggesting an illegal drug-dealing enterprise,” we did not suggest that in those cases a constructive-possession analysis would not apply. Indeed, as the passage quoted by the state expressly explains, in those cases, evidence of a drug-dealing enterprise itself “supported an inference that the defendant constructively possessed drugs that were found nearby.” Id. at 256 (emphasis added). Rather than concluding that a constructive-possession analysis does not apply in cases involving evidence of a sizeable drug-dealing enterprise, Keller merely observes that, in some cases, the evidence of a drug-dealing enterprise is itself evidence of a defendant‘s right to control drugs found nearby. Id. (explaining that in Sherman, evidence suggesting that two individuals were engaged “in a joint drug-dealing enterprise” supported an inference that one individual constructively possessed drugs found on another (internal quotation marks omitted)).
Third, in the absence of a constructive-possession analysis, the state‘s argument—that it is reasonable to infer that all persons in close proximity to a “substantial drug-trafficking operation” have “at least some connection” to it—simply begs the question. In other words, constructive possession is a means by which the state can establish a criminal connection between an individual and drug evidence found nearby; to conclude that there is probable cause to arrest a person for possession based upon an abstract “connection” to nearby drug evidence would turn that inquiry on its head. For each of those reasons, we reject the state‘s contention that a constructive-possession analysis does not apply.
We turn to the merits of the state‘s two probable cause arguments, starting with its argument regarding
In reaching that conclusion, we find two of our previous decisions particularly instructive. In Keller, we held that an officer lacked probable cause to believe that the defendant constructively possessed a heroin baggie found on the car seat next to his passenger‘s right leg, when the defendant was not under the influence at the time of the police encounter, the baggie was not in his line of sight, and there was nothing to indicate that the baggie‘s contents had recently been ingested. 280 Or App at 254-55. And, in State v. Fry, we concluded that the discovery of a “wet” but ultimately untested syringe under the car seat in which the defendant had been sitting could not support an inference
In this case, the circumstances surrounding the discovery of a used syringe under defendant‘s seat are analogous to the circumstances in Keller and Fry. Here, although Haugen thought that defendant looked like an active drug user, nothing in the record suggests that Haugen suspected that she was under the influence at the time. That is, although Haugen described the syringe he found as “used,” there was no evidence that he saw drug residue within the syringe or anything else that might suggest it had recently been used, or that, if it had been, defendant had been the one who had used it. Moreover, much like the heroin baggie at issue in Keller, the syringe in this case was hidden from defendant‘s view. Finally, unlike the defendant in Fry, defendant in this case was not described by Haugen as having made any furtive gestures or shown any other signs that she was aware of the syringe or was somehow connected to it. Under those circumstances, we question whether—even in light of Haugen‘s belief that defendant was an active drug user with “something to hide“—the discovery of the syringe under her seat provided Haugen with probable cause to believe that defendant “knowingly exercise[d] control over [the syringe] or ha[d] the right to do so.” Keller, 280 Or App at 253. More significantly, however, even if defendant‘s appearance and seemingly deceptive behavior could provide some link to the empty syringe that Haugen found
We next consider the state‘s argument that the evidence of what appeared to be a “substantial drug-trafficking operation” provided probable cause to arrest defendant for possession of methamphetamine. Although the state does not expressly link that reasoning to its constructive-possession argument, one might view the state‘s “had at least some connection” argument as a constructive-possession argument by another name. Thus, we consider whether, based upon defendant‘s association with Mauel, the fact that Mauel appeared to be involved in drug trafficking, and the evidence of that operation found in close proximity to defendant (who was herself an apparent drug user), Haugen reasonably believed that, more likely than not, defendant constructively possessed methamphetamine. Again, we find our case law instructive and conclude that there was insufficient evidence in this case linking defendant to the perceived drug-trafficking operation to establish probable cause as to constructive possession.
As in Keller, which was a probable cause case like this one, we find guidance in cases relying on constructive-possession analyses in a slightly different context: the denial of a defendant‘s motion for judgment of acquittal. See Keller, 280 Or App at 256 (noting Sherman, 270 Or App at 462-63; State v. Leyva, 229 Or App 479, 484-85, 211 P3d 968, rev den, 347 Or 290 (2009); and State v. Coria, 39 Or App 507, 509-12, 592 P2d 1057, rev den, 286 Or 449 (1979)). In Sherman, for example, we determined that evidence that the defendant had been engaged in a joint drug-selling enterprise with his female codefendant supported the inference that the defendant had been in constructive possession of cocaine found during a body-cavity search of the codefendant. 270 Or App at 463. There, the defendant was
Here, in marked contrast to Sherman, Haugen had no information connecting defendant either to Mauel or to drug-related contraband other than her proximity to them both on the day of her arrest. That is, nothing Haugen discovered indicated that defendant and Mauel had an ongoing relationship, that she was associated with other places that were themselves connected with drug activity, or that she was working in concert with Mauel. For one thing, although Haugen thought that defendant had “something to hide,” nothing she said or did compared to the defendant‘s insistence in Sherman that the codefendant “keep her mouth shut.” 270 Or App at 460. Further, unlike the codefendant in that case, whose concealing of cocaine in her vagina gave factual context for a deputy‘s experience-based testimony that male drug dealers will sometimes insulate themselves by having female associates bear much of the
The circumstances in Leyva and Coria also stand in stark relief to those present in this case. In Leyva, “evidence supported [the] inference that [the] defendant constructively possessed 20 pounds of marijuana in the back seat of a vehicle in which [the] defendant and another person had been driving ‘for a considerable distance’ from one state to another.” Keller, 280 Or App at 256 (quoting Leyva, 229 Or App at 484). Here, to Haugen‘s knowledge, defendant had been in Mauel‘s truck only a few minutes. Furthermore, unlike 20 pounds of marijuana, which would seem unlikely
Although in Keller, we distinguished the above cases on the grounds that, in Keller, “no evidence suggest[ed] that [the] defendant and his passenger were engaged in selling illegal drugs,” evidence that was of considerable significance to the holdings in those other cases, 280 Or App at 256-57, we do not view defendant‘s circumstances as materially different from those of the defendant in Keller. That is, although Haugen may reasonably have believed that someone was engaged in illegal drug sales, defendant‘s connection to that evidence was far more attenuated than in Sherman, Leyva, or Coria. Mauel and defendant did not communicate in a manner that suggested they were working in concert, and Haugen had no nonspeculative basis to believe the two had an ongoing relationship, as was the case in Sherman. Further, despite defendant‘s proximity to the drug-trafficking evidence in Mauel‘s rental truck, the few minutes that Haugen knew defendant was in the truck were a far cry from the hours, days, or even weeks that the defendants rode in cars laden with contraband in Leyva and Coria. As a result, defendant‘s brief proximity to an apparent drug-trafficking operation is insufficient to establish that she was anything more than Mauel‘s passenger.
In sum, the evidence available to Haugen before defendant‘s arrest could not establish that, more likely than not, she actually or constructively possessed the drugs found in the vehicle. Thus, under the totality of the circumstances, Haugen‘s subjective belief that he had probable
Reversed and remanded.