State v. Barker

• Decision Date: 13 May 2014
• Docket Number: A147777.,201021634
• Citation: 348 P.3d 1138,271 Or.App. 63
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Deborah Kay BARKER, Defendant–Appellant.
• Court: Oregon Court of Appeals

271 Or.App. 63

348 P.3d 1138

STATE of Oregon, Plaintiff–Respondent

v.Deborah Kay BARKER, Defendant–Appellant.

201021634

A147777.

Court of Appeals of Oregon.

Argued and Submitted May 29, 2013.

Decided May 13, 2014.

Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Rebecca M. Johansen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DUNCAN, Presiding Judge, and HASELTON, Chief Judge, and FLYNN, Judge.^*

Opinion

DUNCAN, P.J.

In this criminal case, defendant appeals the trial court's judgment convicting her of one count of unlawful possession of methamphetamine, ORS 475.894. Defendant argues that the trial court erred in denying her motion to suppress evidence obtained when a police officer searched her purse without a warrant. The trial court ruled that the officer's search of defendant's purse was a valid search incident to arrest. For the reasons explained below, we conclude that the officer's search was not a valid search incident to arrest because the officer did not have probable cause to arrest defendant. Therefore, the trial court erred in denying defendant's motion to suppress. Accordingly, we reverse and remand.

I. BACKGROUND

We review a trial court's denial of a motion to suppress for errors of law, and we are bound by the trial court's factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 74–75, 854 P.2d 421 (1993). Where the trial court did not make express findings and there is evidence from which the trial court could have found a fact in more than one way, we will presume that the facts were decided in a manner consistent with the trial court's ultimate conclusion. Id. at 75, 854 P.2d 421. We state the facts in accordance with those standards.

Defendant was a passenger in a truck driven by her husband, which was stopped by Oregon State Police Trooper Ratliff on suspicion of driving while intoxicated. Ratliff noticed that defendant's husband was “overly nervous” and that there was a bottle of alcohol on the seat, as well as many knives, lighters, and trash in the truck. Ratliff took defendant's husband's license, ran a records check on him, and learned that he was a “career criminal” on post-prison supervision. The conditions of defendant's husband's post-prison supervision prohibited him from drinking alcohol and from having contact with defendant. Ratliff asked defendant's husband if she could search the vehicle, and he agreed. Ratliff had him step out of the truck, and she patted him down. Ratliff next asked defendant to get out of the truck, which defendant was reluctant to do. When defendant finally got out of the truck, she grabbed her purse and tucked it “tightly” under her arm. At this point, as later determined by the trial court, defendant was free to leave. She did not leave.

Defendant was wearing a dress, and Ratliff did not believe she had any weapons in her pockets. Ratliff asked defendant if she had any weapons in her purse, and defendant replied, “I don't want you to search my purse.” Defendant never told Ratliff whether or not she had weapons in her purse. In talking to defendant, Ratliff noticed that defendant had bruxism (grinding of teeth and clenching of jaw), and a “leathery look,” and that her pupils were dilated. Ratliff knew from her training and experience that those were indicators of “drug use and long-term drug use.” Additionally, according to Ratliff, the messy state of the truck also indicated long-term drug use.

For safety reasons, Ratliff instructed defendant to place her purse on the hood of Ratliffs patrol car, which defendant did reluctantly. When the purse was on the hood of the patrol car, it was open, and Ratliff saw a grey digital scale inside it.¹ Based on her training and experience, Ratliff knew that digital scales are sometimes associated with distributing controlled substances. Ratliff ran a records check on defendant and determined that defendant had a “drug history.” At that point, Ratliff concluded that she had probable cause to arrest defendant for possession of a controlled substance and to search defendant's purse for evidence of that crime.

Ratliff searched defendant's purse and removed her wallet. Inside defendant's wallet, Ratliff found small baggies, one of which contained methamphetamine.² After discovering the methamphetamine, Ratliff arrested defendant for possession of a controlled substance, and the state subsequently charged defendant with one count of possession of methamphetamine.

Prior to trial, defendant moved to suppress evidence of the methamphetamine, arguing that the search of her purse violated Article I, section 9, of the Oregon Constitution, because Ratliff lacked probable cause to arrest her. The state argued to the trial court that Ratliff had probable cause to arrest defendant for a drug crime and that the search of defendant's purse was therefore a valid search incident to arrest.

At the hearing on defendant's motion to suppress, Ratliff testified to the above facts and summarized the factors that caused her to believe that defendant was “more likely than not” in possession of drugs: “Inability to remain still, dilated pupils, that leather look—leathery skin—heavy bruxism.” Ratliff went on to note that the “innocent motoring public doesn't generally have those indicators. They don't get out of the vehicle and tuck their purse tightly with them and immediately refuse search.”

The trial court denied defendant's motion and summarized its pertinent findings as follows:

“I find that the election to stay at the scene, the officers requiring separation of the purse from the defendant was a lawful request. I didn't find any evidence the officer asked to search the purse.

“That being the case, whether the defendant opened it in a manner she intended the officer to see inside or it just flopped open, as she says it did in her testimony, frankly is irrelevant.

“Once the officer observed the scales together with the other indications of drug use, as testified to—which I find credible—I believe she had probable cause to continue a search.

“I read the case law carefully. Counsel is correct that drug use without more is not an appropriate basis for a search, but I put a great emphasis in the court's notation and that limitation ‘without more.’

“That doesn't mean that someone showing obvious signs of drug intoxication or use is not something that can be considered in totality of the circumstances justifying an establishment of probable cause.”

Defendant appeals, arguing that the trial court erred in denying her motion to suppress. Defendant argues that “physical signs of drug use and drug history are not sufficient in themselves to establish even reasonable suspicion, let alone probable cause. Nor do nervousness or the presence of a scale add significantly to the probable cause calculus.” (Emphasis in original.) Defendant concludes that, not only is each factor solely insufficient to establish probable cause, but “under the totality of the circumstances in this case, the facts are not objectively sufficient to establish probable cause.”

The state responds that, “[b]ecause [Ratliff] had probable cause to arrest defendant, the search was valid as a search incident to arrest.” Specifically, the state argues that “the totality of the circumstances—including defendant's conduct toward her purse, the digital scale in her purse, indications that she was under the influence of drugs, and her history of drug use—created probable cause that defendant was committing the crime of possession of a controlled substance.” The state focuses on defendant's conduct toward her purse and argues that that conduct, “when combined with the other circumstances, created probable cause that defendant was in possession of a controlled substance and was seeking to hide that fact from [Ratliff].”

II. ANALYSIS

A. Legal framework

Article I, section 9, protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure[.]” A warrantless search is per se unreasonable unless it falls within “one of the few specifically established and well-delineated exceptions to the warrant requirement.” State v. Davis, 295 Or. 227, 237, 666 P.2d 802 (1983) (internal quotation marks omitted). Search incident to arrest is one of the well-recognized exceptions. Article I, section 9, authorizes a search incident to arrest to protect the officer's safety, prevent the destruction of evidence, and to discover evidence relevant to the crime for which the defendant is being arrested. State v. Hoskinson, 320 Or. 83, 86–87, 879 P.2d 180 (1994).

“An officer has probable cause to arrest a person only when the officer has a substantial objective basis for believing that, more likely than not, an offense has been committed and the person to be arrested has committed it.” State v. Martin, 260 Or.App. 461, 471, 317 P.3d 408 (2014) (citing State v. Owens, 302 Or. 196, 204, 729 P.2d 524 (1986) ). It is the state's burden to prove that a warrantless arrest and search was supported by probable cause. ORS 133.693(4) ; State v. Foster, 350 Or. 161, 169–70, 252 P.3d 292 (2011). To do so here, the state must prove two things: (1) that Ratliff subjectively believed that a crime had been committed and, thus, that the purse was subject to search and (2) that Ratliffs belief was objectively reasonable under the circumstances. See State v. Vasquez–Villagomez, 346 Or. 12, 23, 203 P.3d 193 (2009) (stating that “two components comprise probable cause: an officer must subjectively believe that a crime has been committed * * *, and this belief must be objectively reasonable in the circumstances” (internal quotation marks omitted)). Defendant concedes that Ratliff subjectively...