State v. Huerta-Contreras , 336 Or. App. 251 ( 2024 )

No. 827 November 20, 2024 251
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MARIO ALBERTO HUERTA-CONTRERAS,
Defendant-Appellant.
Marion County Circuit Court
20CR57919; A177934
J. Channing Bennett, Judge.
Submitted November 20, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Bruce A. Myers, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Reversed and remanded.
252 State v. Huerta-Contreras
ORTEGA, P. J.
Defendant appeals his conviction for unauthorized
use of a vehicle (UUV), ORS 164.135, assigning error to the
trial court’s denial of his motion to suppress evidence and the
imposition of two special probation conditions. Because we
agree with defendant that the officer lacked probable cause
to arrest him, we conclude that the trial court erred in deny-
ing his motion to suppress and do not reach his remaining
assignments of error. Accordingly, we reverse and remand
for further proceedings.
We review a trial court’s denial of a motion to sup-
press for legal error. State v. McCall, 315 Or App 538, 540,
501 P3d 1086 (2021), rev den, 369 Or 505 (2022). When
determining whether there was objective probable cause to
arrest someone, we consider the facts known by the officer at
the time of the arrest. State v. Gibson, 268 Or App 428, 430,
342 P3d 168 (2015). Here, the officer saw a Honda parked
on the side of a road late at night in a “high-crime area”
with defendant sitting in the driver’s seat. The officer ran
the plates and found that the car had been reported sto-
len earlier that day. The officer then called for backup, and
when it arrived, he and another officer drew their weapons,
commanded defendant to exit the car, and arrested him.
A warrantless arrest is permissible when “the
arresting officer has probable cause to believe that the per-
son has committed a crime.” Id. An officer has probable cause
when (1) the officer subjectively believes that a crime was
committed, and (2) the officer’s belief is objectively reason-
able under the circumstances. State v. Rayburn, 246 Or App
486, 490, 266 P3d 156 (2011), rev den, 351 Or 675 (2012). We
determine whether the officer’s belief was objectively rea-
sonable by considering the totality of the circumstances. Id.The arresting officer must have had reason to believe that,
“more likely than not,” the person the officer arrested com-
mitted a crime. McCall, 315 Or App at 542.
To commit the crime of UUV, a person must know-
ingly take, operate, exercise control over or otherwise use
another’s vehicle, and be aware of and consciously disregard
a substantial and unjustifiable risk that they do not have
Cite as 336 Or App 251 (2024) 253
the consent of the owner to do so. ORS 164.135(1)(a)(A) - (C).
The statute was amended in 2019 to add a reckless culpa-
ble mental state as to the owner’s consent to use the vehi-
cle. ORS 164.135(1)(a)(B); see State v. Fitch, 335 Or App 556,
558, ___ P3d ___ (2024). As such, we have up to now only
ever considered whether facts established probable cause for
UUV with a knowing culpable mental state. See, e.g., State
v. Ayvazov, 246 Or App 641, 647, 267 P3d 196 (2011), rev den,
351 Or 675 (2012) (concluding that the facts that the vehicle
that was reported stolen, and was seen “being driven by a
man who appeared to be attempting to run down a woman”
were sufficient for probable cause); Gibson, 268 Or App at
432 (holding that the additional fact that the driver of the
stolen vehicle could not produce the vehicle’s registration or
insurance information established probable cause); McCall,
315 Or App at 544 (holding that the officer had probable
cause to arrest a person standing by the driver’s side door
of a vehicle that was reported stolen and “working on the
inside door handle with a pair of pliers”).
To establish probable cause, “the state needs to
prove only that, more likely than not, defendant had the
requisite mental state.” Rayburn, 246 Or App at 492 (citing
ORS 131.005(11)). As is true when showing probable cause
for any mental state, there must be some evidence from
which the officer could reasonably believe that the defendant
more likely than not possessed the culpable mental state.
Thus, for UUV, the state must offer some fact or conduct
known to the officer that would establish that the defendant
was aware of and consciously disregarded a substantial and
unjustifiable risk that he did not have the owner’s consent to
use the vehicle.
The state first argues that the fact that defen-
dant was sitting in the driver’s seat of a car that had been
reported stolen is sufficient to establish the requisite mental
state for UUV. We disagree. The state’s proposed inference
that a person sitting in the driver’s seat of a stolen car more
likely than not is aware of and consciously disregarded the
risk that it was stolen is not objectively reasonable without
more. While it is unclear from the record precisely how much
time had elapsed between the car going missing, the initial
254 State v. Huerta-Contreras
report, and the arrest, at least several hours had passed.
There may be circumstances where the brief time between
a vehicle being stolen and a person being seen driving the
vehicle could contribute to finding probable cause, but in
the circumstances here—several hours having passed—
defendant’s presence in the driver’s seat does not contribute
much, if anything, toward probable cause.
Alternatively, the state argues that the additional
fact that defendant was in a “high-crime area” late at night
where stolen vehicles are regularly recovered indicates that
it is more likely than not that he was aware of a substan-
tial and unjustifiable risk that the car was stolen. We are
not persuaded. First, nothing in the record suggests that
defendant was aware that he was in a high-crime area.
Second, we have repeatedly held that a person’s presence
in an area of high drug activity and association with other
users and dealers does not amount to reasonable suspicion
without other conduct to suggest culpability. See, e.g., State
v. Bertsch, 251 Or App 128, 134, 284 P3d 502 (2012); see
also State v. Barber, 279 Or App 84, 94, 379 P3d 651 (2016)
(distinguishing Bertsch because the officers witnessed the
suspected person engaging in possible drug activity and
hiding something under the passenger seat of their vehicle).
If a person’s presence in a high-crime area does not alone
support reasonable suspicion that the person committed a
crime, that fact does little to establish probable cause that
the person committed a crime.
The officer witnessed no suspicious conduct beyond
defendant sitting late at night in the driver’s seat of a car
that had been reported stolen earlier that day. The type of
inference the officer needed to make to conclude that defen-
dant possessed the requisite mental state amounted to a
mere hunch, which does not, without more, establish prob-
able cause. Compare, e.g., Gibson, 268 Or App at 433 (con-
cluding that the driver’s inability to produce registration
or insurance for the vehicle was the additional conduct on
which “the police could reasonably rely” to establish prob-
able cause). We therefore conclude that it was not objec-
tively reasonable under the totality of the circumstances for
the officer to believe that, more likely than not, defendant
Cite as 336 Or App 251 (2024) 255
had committed the crime of UUV and that the officer did
not have probable cause to arrest defendant when he did.1
Accordingly, the trial court erred in denying defendant’s
motion to suppress.
Reversed and remanded.
1
We offer no opinion whether the circumstances here were sufficient to
establish reasonable suspicion of UUV.