State v. Lebanno
| Decision Date | 01 September 2021 |
| Docket Number | A172543 |
| Citation | 497 P.3d 1280,314 Or.App. 172 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Kenneth Eugene LEBANNO, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Mark Kimbrell, 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.
Greg Rios, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.
Defendant appeals from a judgment of conviction for unlawful possession of methamphetamine, assigning error to the trial court's denial of his motion to suppress evidence obtained following his warrantless arrest. Specifically, defendant argues that the arrest violated Article I, section 9, of the Oregon Constitution, because it was not supported by probable cause to believe that he had engaged in an illegal drug transaction. We agree, and, accordingly, reverse and remand.
We review the trial court's ruling denying defendant's motion to suppress for legal error. State v. Maciel-Figueroa , 361 Or. 163, 165, 389 P.3d 1121 (2017). In so doing, we are bound by the court's factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). We summarize the facts in accordance with those standards.
At 9:41 a.m. on a Monday in July, Portland Police Officer Browning was in downtown Portland's Waterfront Park engaged in a "spotting mission," or what he described as going "into the high crime areas and look[ing] for criminal activity." Browning was scanning the area underneath the Burnside Bridge with a pair of binoculars while he sat parked in an unmarked police car. Browning had worked as a police officer downtown for seven years, which included assignments in the Old Town neighborhood encompassing the northern part of Waterfront Park. He testified that "most of that time I worked on street level drug use and combating street level drug use [and] drug sales" and had dealt with over 100 drug cases during his career. Browning testified that the specific part of the park underneath the Burnside Bridge was a "high drug and vice area." He elaborated that it was common for the police to receive calls reporting drug use or drug sales at that location. He specified camping, loitering, and littering as other unlawful activities that frequently occur there. The area also hosts the Portland Saturday Market and is a popular spot for runners, walkers, bikers, and commuters.
With his binoculars, Browning spotted several people, including defendant, standing under the Burnside Bridge about 100 feet away from where he was parked. His view of the group was unobstructed. Browning watched an individual (later identified as Cauley) walk up to the group and begin "socializing." Cauley then reached into a bag he was carrying and removed a "very small" item. Cauley held the item in the palm of his closed hand, opening his hand occasionally to look at the item or to allow defendant to look at the item, "then he would close it and look around for a little bit." Browning could not see what the item was. Cauley and defendant engaged in a handshake in which they slapped their hands together, slowly slid their hands back towards themselves with their hands still touching, locked their fingers together in a curled position, and finally let go and separated their hands. Defendant and Cauley then walked away in separate directions. Altogether, the men had interacted for less than 15 minutes.
Browning testified that he had seen the type of handshake the men engaged in before, and stated that it allows a person to "scoop out from whatever is in the [other person's] hand," is usually used when "somebody is trying to pass something off without letting anybody know that they are actually passing something off," and is "a common occurrence in a street level drug transaction." Browning believed that the men were "trying to be sneaky and hiding what they were doing." However, Browning also testified that the handshake was "commonplace" and seen in "everyday socializing" unrelated to criminal activity. Based on "the type of area we were in, the criminal activity that we were looking for, [and] the body language between [Cauley and defendant]," Browning believed that the men had "just exchanged some sort of illegal narcotics."
Browning "notified the assisting officers via radio" and asked them to detain defendant and Cauley. A second officer then approached defendant, placed him in handcuffs, read him his Miranda rights, and searched him, resulting in the discovery of a pipe and a small bag of methamphetamine. The officer asked defendant if he had obtained the methamphetamine from Cauley, to which defendant responded that he had.
In advance of trial, defendant moved to suppress "all evidence, direct and derivative, discovered pursuant to an invalid search and seizure and to suppress all statements made by Defendant while in state custody." Specifically, defendant argued that the circumstances known to Browning at the time he radioed for defendant's arrest did not support an objectively reasonable belief that defendant had probably committed a crime. Defendant highlighted the fact that, despite Browning's testimony that the spot was a high-crime area, the interaction occurred on a weekday morning, when the area was open to the public and popular amongst walkers, runners, bikers, and commuters. He also argued that the handshake itself was not particularly suspicious and was common "in everyday occurrences that weren't drug deals." The state argued that several factors added up to probable cause: the fact that Cauley showed defendant a small item in his hand right before the handshake; the fact that the handshake was done slowly, supporting an inference that it was concealing an exchange; the fact that the handshake occurred in a high-crime location; and the fact that the men behaved furtively, as if they were trying to hide what they were doing. The trial court denied defendant's motion, concluding that the officers had probable cause to believe that defendant had just received illegal drugs from Cauley, and therefore probable cause to arrest him. Defendant entered a conditional no-contest plea, reserving in writing the right to challenge the court's denial of his motion. ORS 135.335(3). This timely appeal followed.
On appeal, defendant assigns error to the trial court's denial of his motion to suppress the evidence discovered subsequent to his warrantless arrest. We review such rulings as a matter of law. State v. Martin , 260 Or. App. 461, 463, 317 P.3d 408 (2014) ( Martin II ).1 Defendant reiterates his argument that the officers "lacked an objectively reasonable basis to conclude that defendant was engaged in a drug transaction[,] and, therefore, lacked probable cause to arrest him." In so arguing, defendant highlights (1) the interaction occurred on a weekday morning in an area where noncriminal activities such as running, walking, biking, and commuting commonly occur; (2) Browning did not know defendant or Cauley, or possess any information other than their interaction that could have suggested that the men were involved with illegal drugs; and (3) Browning did not observe an exchange of money or see defendant reach in his pockets, making it unclear whether the men even exchanged anything during the commonplace handshake, let alone illegal drugs. The state argues that it was objectively reasonable for Browning to believe that defendant possessed illegal drugs because he had observed a furtive hand-to-hand transaction in a high-crime area. The state contends that those facts, viewed through Browning's experience with the handshake as a method for concealing street-level drug deals, establish probable cause.
We first consider the law that controls our analysis of defendant's warrantless arrest. Article I, section 9, protects individuals against unreasonable searches and seizures.2 In accordance with those protections, arrests must be supported by probable cause. Martin II , 260 Or. App. at 469, 317 P.3d 408. Probable cause is present when an officer subjectively believes that it is more likely than not that a crime has been committed and that the person to be arrested has committed it, and when that subjective belief is objectively reasonable under the circumstances. State v. Miller , 157 Or. App. 489, 492, 972 P.2d 896 (1998), rev. den. , 328 Or. 365, 987 P.2d 511 (1999). In determining whether an officer possessed probable cause, we examine the totality of the circumstances known to the officer, including reasonable inferences that may be drawn from those circumstances in light of the officer's relevant training and experience. State v. Sanchez-Anderson , 300 Or. App. 767, 773, 455 P.3d 531 (2019). Officer training and experience alone, however, are insufficient to establish probable cause without specific, observable facts that are particularized to the defendant. State v. Aguilar , 307 Or. App. 457, 470, 478 P.3d 558 (2020) (). The state bears the burden of proving that a warrantless arrest was supported by probable cause. State v. Barker , 271 Or. App. 63, 68, 348 P.3d 1138 (2015). If an officer possesses probable cause to arrest, they may also search the individual for reasonably concealable evidence of the crime of arrest. State v. Owens , 302 Or. 196, 200-02, 729 P.2d 524 (1986).
In the instant case, the state does not dispute that defendant was arrested when the second officer intercepted him and placed him in handcuffs. Further, defendant does not dispute...
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