State v. Keller

• Decision Date: 17 August 2016
• Docket Number: A156705
• Citation: 280 Or.App. 249,380 P.3d 1144
• Parties: State of Oregon, Plaintiff–Respondent, v. Lucas Dennis Keller, Defendant–Appellant.
• Court: Oregon Court of Appeals

280 Or.App. 249

380 P.3d 1144

State of Oregon, Plaintiff–Respondent,

v.Lucas Dennis Keller, Defendant–Appellant.

A156705

Court of Appeals of Oregon.

Argued and submitted November 17, 2015.

August 17, 2016

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

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Allen, Judge pro tempore.

HADLOCK, C.J.

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 warrantless 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.

We state the facts consistently with the trial court's explicit and implicit factual findings, which the record supports. See State v. Suppah , 358 Or. 565, 567 n. 1, 369 P.3d 1108 (2016) (applying that standard in reviewing denial of suppression motion). As he was patrolling a rest area at about 7:30 a.m., Oregon State Trooper Nelson noticed two people sitting in a parked car in the back of the lot. According to Nelson, that rest area has a reputation for criminal activity, including drug activity.

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 1, section 9, of the Oregon Constitution because “police unlawfully seized him.”¹ In response, the state argued that Nelson had acted lawfully in arresting defendant. The state did not argue either in its written response to defendant's motion to suppress or at the suppression hearing that, if Nelson had acted unlawfully by arresting defendant, he had not exploited that illegality to obtain the evidence that defendant sought to suppress.

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 or constructively possessed the drugs, which were not visible from the driver seat.” Defendant concludes that reversal is required because the state did not “argue below that the later discovery of evidence was attenuated from the unlawful arrest,” and it therefore cannot properly make a “lack of exploitation” argument on appeal.

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 , 268 Or.App. 428, 430, 342 P.3d 168 (2015). In addressing whether Nelson acted lawfully in arresting defendant, we are bound by the trial court's express and implicit findings of fact that are supported by the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). Whether those facts establish probable cause is a question of law, and this court reviews the denial of a motion to suppress for legal error. Id .

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 , 178 Or.App. 52, 60, 35 P.3d 1088 (2001). 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.” State v. Kappel, 190 Or.App. 400, 404, 79 P.3d 368 (2003).

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.² See State v. Sherman , 270 Or.App. 459, 461, 349 P.3d 573, rev. den. , 357 Or. 596, 358 P.3d 1002 (2015) (unlawful drug possession may be established through proof of either actual or constructive possession). A person “actually” possesses controlled substances if the person “has actual physical control of the property.” State v. Daline , 175 Or.App. 625, 632, 30 P.3d 426 (2001) (emphasis in original). A person “constructively” possesses contraband if the person knowingly exercises control over it or has the right to do so. State v. Stradley , 258 Or.App. 10, 14, 308 P.3d 284 (2013). Thus, 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.

State v. Miller, 157 Or.App. 489, 492, 972 P.2d 896 (1998), rev. den. , 328 Or. 365, 987 P.2d 511 (1999).

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 probable cause to arrest defendant. No evidence in the record suggests that defendant actually possessed the heroin residue before his arrest. Nor was Nelson's observation sufficient to...