State v. Stowers
Decision Date | 06 September 1995 |
Citation | 902 P.2d 117,136 Or.App. 448 |
Parties | STATE of Oregon, Respondent, v. Darryl Anthony STOWERS, Appellant. 9302-31323; CA A80649. |
Court | Oregon Court of Appeals |
Peter Gartlan, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.
Janie M. Burcart, Assistant Attorney General, argued the cause for respondent. On the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and R. Victoria Roe, Assistant Attorney General.
Before RIGGS, P.J., and LANDAU and LEESON, JJ.
Defendant appeals from a conviction for possession of a controlled substance. ORS 475.992. He assigns error to the trial court's denial of his motion to suppress evidence obtained in the course of his arrest for driving under the influence of intoxicants. We reverse and remand.
We take the facts from the trial court's findings. Officer Durbin stopped defendant for a traffic infraction; there is no dispute as to the validity of the stop. Durbin noticed that defendant's hands were shaky, that his eyes were open wide and bloodshot and that he was continually licking his lips. Based on his experience and training, Durbin suspected that defendant might be under the influence of drugs.
Durbin asked defendant to get out of the car, and defendant did as he was asked. Durbin conducted a "rebound dilation" test, by observing the extent to which defendant's pupils contracted and expanded in response to Durbin's flashlight. Durbin concluded from the test that defendant's eyes were unusually dilated. Durbin also reached over and placed his fingers on defendant's neck, to take defendant's carotid pulse. Defendant's pulse was 150 beats per minute, which, in Durbin's experience, suggested drug use. Durbin noticed that defendant continued to lick his lips and that he was looking around "like a caged cat." Durbin asked defendant if he had taken drugs lately, and defendant replied that he had taken cocaine two weeks earlier. In Durbin's experience, the use of cocaine two weeks earlier made it more likely than not that defendant still was using cocaine, "because cocaine users tend to become addicted and to require daily use."
At that point, Durbin placed defendant under arrest. He handcuffed defendant and transported him to the police station. When defendant got out of the police car, he dropped a bindle of cocaine from his hand. Defendant was then charged with possession of a controlled substance.
Defendant moved to suppress the evidence of the cocaine on the ground that the officer lacked probable cause to arrest him for driving under the influence. At the suppression hearing, Durbin testified at length concerning his training and experience in identifying persons under the influence of drugs in general and about his evaluation of defendant's condition in particular. When questioned about the point at which he formed a subjective belief that defendant was, in fact, under the influence, he testified:
The trial court denied defendant's motion, finding that Durbin was an expert at detecting whether people are under the influence of drugs, that Durbin had a subjective belief that probable cause existed to arrest, and that Durbin's subjective belief was objectively reasonable. Defendant then was found guilty of possession of a controlled substance.
On appeal, defendant challenges the finding of probable cause and the trial court's conclusion that Durbin qualified as an expert. He also argues that Durbin's "rebound dilation" test and his examination of defendant's carotid pulse constituted searches that were conducted without probable cause. Finally, he argues that the trial court erred in accepting Durbin's testimony that, once a person uses cocaine, it is likely that they will become addicted and continue to use cocaine. We address only defendant's argument that Durbin's examination of defendant's pulse constituted an illegal search, because we find that issue dispositive.
Defendant argues that, when Durbin reached over and placed his hand on defendant's neck to take his pulse, Durbin conducted a search of his person without probable cause, in violation of the state and federal constitutions. The state does not address defendant's contention that taking his pulse constituted a search. It argues, however, that, if taking his pulse did constitute a search, the search was reasonable, because it was based on probable cause and exigent circumstances.
We begin with the argument that Durbin's examination of defendant's pulse violated defendant's state constitutional rights. See State v. Rodriguez, 317 Or. 27, 32, 854 P.2d 399 (1993). Article I, section 9, of the Oregon Constitution provides:
By placing his hand on de...
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