State v. Sanchez-Anderson ( 2019 )

767
Argued and submitted January 9, 2018, reversed and remanded
November 27, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
ROSA MARIA SANCHEZ-ANDERSON,
Defendant-Appellant.
Washington County Circuit Court
16CR35517; A163078
455 P3d 531
Defendant appeals a judgment of conviction for three controlled-substance
offenses. Defendant argues that the trial court erred in denying her motion to
suppress evidence obtained from a warrantless search incident to her arrest for
unlawful possession of methamphetamine, because the arresting officer lacked
probable cause for that arrest. Specifically, defendant argues that the officer did
not have an objectively reasonable belief that she, more likely than not, construc-
tively possessed the methamphetamine at issue. The state contends that the
arresting officer had probable cause due to defendant’s apparent connection to
a sizeable drug-trafficking operation. Held: The trial court erred. The arresting
officer lacked an objectively reasonable basis to believe that it was more likely
than not that defendant possessed methamphetamine.
Reversed and remanded.
Eric Butterfield, Judge.
David Sherbo-Huggins, 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.
Peenesh Shah, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.*
DEHOOG, P. J.
Reversed and remanded.
______________
* DeVore, J., vice Hadlock, J. pro tempore.
768 State v. Sanchez-Anderson
DEHOOG, P. J.
Dependent appeals a judgment convicting her of
three controlled-substance offenses: unlawful possession
of heroin, ORS 475.854; unlawful possession of metham-
phetamine, ORS 475.894; and unlawful delivery of meth-
amphetamine, ORS 475.890(2). Defendant assigns error to
two rulings of the trial court, in which the court (1) denied
defendant’s motion to suppress evidence found pursuant to a
warrant authorizing a search of three cellphones that defen-
dant had in her possession at the time of her arrest; and
(2) denied defendant’s motion to suppress evidence derived
from a warrantless search of defendant incident to her
arrest for suspected drug possession. With respect to the
warrantless search incident to arrest, defendant argues
that the arresting officers lacked probable cause to arrest
her for unlawful possession of methamphetamine, because
they had no reason to believe that she had constructively
possessed any of the drugs and related items that they dis-
covered in a vehicle that she had recently ridden in.
The state responds that our constructive-possession
case law is inapposite, and argues that, under the totality of
the circumstances—including facts suggesting defendant’s
involvement in a sizeable drug-trafficking operation with
the vehicle’s driver—there was probable cause to arrest her
for unlawful methamphetamine possession. The state alter-
natively argues that the discovery of an empty, but used,
syringe under defendant’s seat supports an inference that
she constructively possessed the drugs found in the vehi-
cle. We conclude that the arresting officers lacked probable
cause to arrest defendant and that, therefore, the trial court
erred in denying defendant’s motion to suppress evidence
obtained as a result of that unlawful arrest. Because we
further conclude that the cellphones at issue in defendant’s
other assignment of error were obtained as a result of that
unlawful search and that the evidence of their contents was
therefore subject to suppression, there is no need to decide
whether the challenged warrant properly authorized a
search of the phones. Accordingly, we reverse and remand.
When reviewing the denial of a motion to sup-
press, “[w]e state the facts consistently with the trial court’s
Cite as 300 Or App 767 (2019) 769
explicit and implicit factual findings,” provided that there
is evidence in the record to support them. State v. Keller,
280 Or App 249, 250, 380 P3d 1144 (2016); see also State v.
Suppah, 358 Or 565, 567 n 1, 369 P3d 1108 (2016) (apply-
ing the same standard). In this case, the relevant facts are
undisputed.
While on routine patrol, Officer Haugen of the
Beaverton Police Department noticed a passenger truck
with out-of-state license plates in the parking lot of a motel
that he knew to be frequented by drug traffickers. Haugen
determined that the truck was a rental vehicle; he also
knew that rental vehicles were a common choice among
those engaged in drug trafficking. His interest thus piqued,
Haugen approached the truck and saw, through a window,
a lock box and “a large digital scale box,” both located on the
floor behind the passenger seat. Haugen contacted motel
staff and learned that a man named Mauel was associated
with the truck and had rented a room at the motel. Haugen
ran a records check on Mauel and discovered that he was
on post-prison supervision for heroin possession. Moments
later, Haugen saw Mauel leaving a motel room accompanied
by defendant. The two approached the rental truck, and
Mauel got into the driver’s seat while defendant sat on the
passenger side. Suspecting potential drug activity, Haugen
first watched as Mauel began to drive away, and then, when
he saw Mauel commit a minor traffic infraction while leav-
ing the parking lot, Haugen initiated a traffic stop so that
he could investigate further. Mauel, who was visibly ner-
vous, handed Haugen a Washington driver’s license and, as
proof of registration, a rental agreement for the truck. As
Mauel gathered those documents, Haugen asked defendant
for her name and date of birth. Defendant provided that
information, at which point Haugen “reminded her that she
was free to leave.” Haugen noted that defendant appeared
sickly and had facial sores, two signs that Haugen associ-
ated with “active” heroin or methamphetamine use, but it
does not appear that he believed that defendant was under
the influence at the time. After Haugen said that defendant
could leave, she stepped out of the truck and began to walk
away, taking her purse with her. While still at the scene,
Haugen ran a records check using the information that
770 State v. Sanchez-Anderson
defendant had provided, but his inquiry came back “unable
to locate.” That result indicated to Haugen that defendant
had given him false information, behavior he viewed as
“consistent with somebody that has something to hide from
the police.”1
Meanwhile, another officer with a drug-detection
dog had arrived at Haugen’s request. When that officer told
Haugen that the dog had alerted on Mauel’s truck, Haugen
proceeded to search the vehicle and its contents. He found
considerable evidence of illegal drug activity in the lock box,
the digital scale box, and the center console. In the lock
box were “[m]ultiple used syringes that had a white crys-
tal substance inside of them, [and] a digital scale with a
brown-colored substance on it.” Based on his training and
experience, Haugen recognized the two substances to be
methamphetamine and heroin. The digital scale box con-
tained a large digital scale “caked” with methamphetamine
residue and more than 20 “pretty good-sized,” unused bag-
gies that Haugen associated with the sale of larger quanti-
ties of drugs. The center console contained over $4,000 in
cash, which Haugen also associated with drug trafficking.
Haugen also found “a used, uncapped syringe”—one as to
which he noted no drug residue—underneath the passen-
ger seat, where it was “easily accessible to [defendant] but
not Mauel.”2 In addition to finding physical evidence of drug
possession and trafficking, Haugen concluded, based on his
“experience dealing with the drug culture,” that defendant
and Mauel were most likely involved in a sexual relation-
ship that involved giving or discounting drugs in exchange
for sex.
Based on the foregoing observations, Haugen deter-
mined that he had probable cause to arrest defendant for
1
It is not entirely clear from the record when Haugen learned that defendant
had not given him her true name during the traffic stop. Defendant does not dis-
pute Haugen’s testimony before the trial court that the records check returned
“unable to locate” with the name she had given before he called for her arrest.
However, in Haugen’s affidavit in support of the warrant to search defendant’s
cellphones, he implies that he may not have discovered that defendant had used
a false name until after she had been arrested and searched.
2
The record does not indicate how Haugen knew that the syringe under the
passenger seat was used, but defendant does not challenge that characterization.
Cite as 300 Or App 767 (2019) 771
unlawful possession of methamphetamine. At Haugen’s
direction, another officer located defendant and arrested
her. Incident to that arrest, the officer conducted a war-
rantless search of defendant and her purse, where he found
methamphetamine, multiple syringes, empty baggies, a dig-
ital scale, and three cellphones. Defendant also had more
than $600 in cash hidden in her bra. A subsequent warrant
search of the cellphones resulted in the discovery of text
messages that reflected her involvement in drug trafficking.
Defendant moved pretrial to suppress evidence derived both
from the warrantless search incident to arrest and the war-
rant search of her cellphones, but the trial court denied both
motions. Defendant waived jury and, following a bench trial
based on stipulated facts, was convicted on all counts.
On appeal, defendant assigns error to the denial
of each of her motions to suppress. We begin with defen-
dant’s argument that her arrest and related search were
not supported by probable cause. Defendant contends that
her mere presence in the truck and her resulting proximity
to the drug residue and related evidence of drug possession
and trafficking were insufficient to support an objectively
reasonable belief that, more likely than not, she actively or
constructively possessed any of those items. Emphasizing
that none of her belongings were found near the things that
Haugen found, that she made no “furtive” movements when
Haugen contacted her, and that she had been a passenger in
Mauel’s truck for only a short time before Haugen stopped
them, defendant argues that there was no indication that
she was even aware that drugs were in the vehicle, much
less that they were under her ownership or control. As for
her use of a false name and Haugen’s hypothesis that she
and Mauel were involved in a sex-for-drugs relationship,
defendant suggests that those considerations add nothing
to support the inference that she had the right to exercise
control over the drugs and other items found in the vehi-
cle. Thus, citing our opinion in Keller and related decisions,
defendant argues that Haugen lacked an objective basis
to believe that she had constructively possessed the con-
traband that he found in Mauel’s truck, and, accordingly,
lacked probable cause to arrest her for unlawful possession
of methamphetamine.
772 State v. Sanchez-Anderson
The state responds that the constructive posses-
sion analysis in Keller is inapposite here, where neither
occupant of Mauel’s truck actively possessed the evidence
of drug crimes. That is, as we understand the state’s argu-
ment, the issue here is not whether there was an objectively
reasonable basis to believe, based on her proximity, that,
more likely than not, defendant had a right to exercise
control over drugs found in Mauel’s possession; rather, the
state contends, the question is whether, under the totality
of the circumstances—which, in the state’s view, were sug-
gestive of “a large drug-dealing enterprise”—it was reason-
able for Haugen to believe that, more likely than not, any-
one in close proximity to the evidence found in the truck
was criminally connected to it. Viewed in that light, or so
the state seems to argue, the evidence that Haugen found
in the rental truck, together with defendant’s appearance
and behavior, supported a reasonable inference that defen-
dant was engaged in drug trafficking, and therefore gave
Haugen probable cause to arrest her for unlawfully pos-
sessing the detectable quantities of methamphetamine left
behind by that trafficking. In support of that argument, the
state reasons that a number of circumstances, viewed as a
whole, objectively establish that defendant more likely than
not “had at least some connection” to the drug-trafficking
operation, including that: (1) defendant’s appearance was
“similar to people who are actively using” drugs; (2) the
truck that she rode in was “associated with a substantial
drug-trafficking operation”; (3) the drugs and scales found
in the vehicle were within her reach; (4) there was a used
syringe under her seat; (5) defendant gave false identify-
ing information to Haugen; and (6) in Haugen’s view, defen-
dant and Mauel probably were in a sex-for-drugs relation-
ship. The state alternatively argues that, to the extent a
constructive-possession analysis does apply, the presence
of a used syringe under the passenger seat where it was
easily accessible to defendant, but not to Mauel, supports
the inference that defendant constructively possessed the
drugs found within the vehicle. Below we consider each of
those arguments, but ultimately reject them both.
We review the denial of a motion to suppress for
legal error. Keller, 280 Or App at 253. “A warrantless arrest
Cite as 300 Or App 767 (2019) 773
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.” Id. at 252-53
(internal quotation marks omitted); see also State v. Miller,
345 Or 176, 184, 191 P3d 651 (2008) (discussing a simi-
lar warrantless arrest provision found in ORS 133.310(1)).
Whether the facts known to an officer establish probable
cause for an arrest presents a question of law. Keller, 280
Or App at 253. “[P]robable cause exists only if the arresting
officer subjectively believes it is more likely than not that
an offense has been committed and that belief is objectively
reasonable.” Id. (internal quotation marks omitted); see also
Miller, 345 Or at 184-85 (discussing “probable cause” as
defined in ORS 131.005(11)).
Defendant does not dispute that Haugen subjec-
tively believed that defendant had committed a crime; thus,
we focus our inquiry on whether that belief was objectively
reasonable.3 “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.’ ” Keller, 280 Or App at 253 (quoting State v.
Kappel, 190 Or App 400, 404, 79 P3d 368 (2003), rev den, 336
Or 509 (2004)). The totality of the circumstances includes
“the officer’s training and experience.” State v. Vasquez-
Villagomez, 346 Or 12, 23, 203 P3d 193 (2009). However,
generalized observations unconnected to the particular
facts and circumstances of a case add little to the probable
cause analysis. See State v. Webber, 281 Or App 342, 350-51,
383 P3d 951 (2016) (explaining, in the context of a search
warrant affidavit, that for an officer’s “training and expe-
rience” to establish the required nexus between the facts
known to an officer and the inference of probable cause to
be drawn, an officer is required to connect his or her train-
ing and experience to “objective facts derived from other
sources” (internal quotation marks omitted)). To determine
whether the facts are sufficient to support probable cause,
3
Similarly, defendant does not dispute that, if Haugen had probable cause,
the officer who arrested defendant and searched her incident to arrest likewise
had probable cause. See generally State v. Barber, 279 Or App 84, 90 n 5, 379 P3d
651 (2016) (acknowledging well-settled “collective knowledge doctrine”).
774 State v. Sanchez-Anderson
we examine them both individually and collectively. State v.
Barker, 271 Or App 63, 69, 348 P3d 1138 (2015).
At issue in this case is whether Haugen’s obser-
vations gave rise to probable cause to arrest defendant for
the crime of unlawful possession of methamphetamine.
Generally speaking, unlawful drug possession can be estab-
lished through proof of either actual or constructive posses-
sion of a specific controlled substance. Keller, 280 Or App
at 253; State v. Sherman, 270 Or App 459, 461, 349 P3d
573, rev den, 357 Or 596, (2015)). Actual possession requires
“actual physical control of the property.” Keller, 280 Or App
at 253 (emphasis in original; internal quotation marks
omitted). Constructive possession, on the other hand, is less
direct, and describes a person’s relationship to property
found under the physical control of someone else or of no one
at all. As to such property, “an officer has objective probable
cause to believe that a person constructively possesses con-
traband if the circumstances show that, more likely than
not, the defendant knowingly exercises control over the
contraband or has the right to do so.” Id. (internal quota-
tion marks omitted). Specific to this case, “[w]here the state
seeks to prove that a person in a vehicle possessed drugs
found in that vehicle, an inference of constructive possession
is reasonable only if some facts link the defendant’s pres-
ence in the vehicle where the drugs were observed to the
defendant’s right to control those drugs.” Id. at 254 (internal
quotation marks, brackets omitted; emphasis added).
Applying those standards here, we conclude that,
even when viewed through the lens of Haugen’s training
and experience, the totality of the circumstances—including
defendant’s connection to Mauel, the items found in Mauel’s
truck, defendant’s appearance, and her apparent use of a
false name—did not objectively establish a reasonable basis
to believe that, more likely than not, defendant possessed
methamphetamine, constructively or otherwise. As a result,
the officer who arrested defendant and searched her incident
to that arrest lacked probable cause to do so. The trial court,
therefore, erred in denying defendant’s motion to suppress.
We first address the state’s argument that a
constructive-possession analysis has no bearing on whether
Cite as 300 Or App 767 (2019) 775
there was probable cause to arrest defendant for unlawful
possession of methamphetamine. Notably, the state does
not contend that Haugen had probable cause to believe that
defendant actually possessed the drugs and other evidence
of drug trafficking found in the rental truck; nonetheless,
the state contends that cases such as Keller, in which we
have relied on a constructive-possession analysis in deter-
mining whether there was probable cause, are inapposite
here, where neither occupant of the vehicle had actual pos-
session of the drug evidence and the evidence, as a whole,
suggested a “substantial drug-trafficking operation.” The
state, quoting Keller, 280 Or App at 256, notes, among other
things, that we specifically distinguished the defendant’s
circumstances in that case from cases “in which ‘evidence
suggesting an illegal drug-dealing enterprise’ supported
‘an inference that the defendant constructively possessed
drugs that were found nearby.’ ” Thus, the state argues,
the question here is not the question presented in Keller,
i.e., whether defendant’s mere proximity to a controlled
substance in someone else’s possession established proba-
ble cause to believe that defendant herself constructively
possessed that substance. Rather, the state contends, the
question is whether the evidence of drug-trafficking in this
case was such that an officer reasonably could believe that
all persons in close proximity to that evidence “had at least
some connection” to it. For the reasons that follow, however,
we disagree with the state’s contention that a constructive-
possession analysis does not apply.
First, as noted, the state does not contend that
defendant actually possessed any of the contraband that
Haugen found in the truck, and nothing in the record
could support such a belief. Thus, given the state’s theory
that Haugen had probable cause to believe that defendant
unlawfully possessed methamphetamine, that leaves only
the possibility—at least as far as the drugs found before
defendant was searched are concerned—that defendant’s
possession was constructive. See Keller, 280 Or App at 253(noting that “unlawful drug possession may be established
through proof of either actual or constructive possession”
(citation omitted)). That is, although the state contends that
Keller is distinguishable on its facts, we do not understand
776 State v. Sanchez-Anderson
it to argue that possession may be established in some way
other than actual or constructive possession, and it advances
no argument that Haugen could reasonably have inferred
that defendant was in actual possession of anything found
in Mauel’s vehicle.4
Second, although it is true that, in Keller, 280 Or
App at 256, we distinguished cases in which there was “evi-
dence suggesting an illegal drug-dealing enterprise,” we did
not suggest that in those cases a constructive-possession
analysis would not apply. Indeed, as the passage quoted by
the state expressly explains, in those cases, evidence of a
drug-dealing enterprise itself “supported an inference that
the defendant constructively possessed drugs that were found
nearby.” Id. at 256 (emphasis added). Rather than conclud-
ing that a constructive-possession analysis does not apply
in cases involving evidence of a sizeable drug-dealing enter-
prise, Keller merely observes that, in some cases, the evidence
of a drug-dealing enterprise is itself evidence of a defendant’s
right to control drugs found nearby. Id. (explaining that in
Sherman, evidence suggesting that two individuals were
engaged “in a joint drug-dealing enterprise” supported an
inference that one individual constructively possessed drugs
found on another (internal quotation marks omitted)).
Third, in the absence of a constructive-possession
analysis, the state’s argument—that it is reasonable to infer
that all persons in close proximity to a “substantial drug-
trafficking operation” have “at least some connection” to it—
simply begs the question. In other words, constructive pos-
session is a means by which the state can establish a criminal
connection between an individual and drug evidence found
nearby; to conclude that there is probable cause to arrest a
person for possession based upon an abstract “connection” to
nearby drug evidence would turn that inquiry on its head.
For each of those reasons, we reject the state’s contention
that a constructive-possession analysis does not apply.
We turn to the merits of the state’s two probable
cause arguments, starting with its argument regarding
4
The state also does not argue that Haugen had probable cause to believe
that defendant had aided and abetted Mauel’s possession of methamphetamine
in some way that did not involve either actual or constructive possession.
Cite as 300 Or App 767 (2019) 777
Haugen’s discovery of the syringe under defendant’s seat.
As explained above, “[w]here the state seeks to prove that
a person in a vehicle possessed drugs found in that vehicle,
an inference of constructive possession is reasonable only if
some facts link the defendant’s presence in the vehicle where
the drugs were observed to the defendant’s right to control
those drugs.” Keller, 280 Or App at 254 (internal quotation
marks, brackets omitted; emphasis added). As we under-
stand the state’s constructive-possession argument—which,
we recognize, is not the state’s primary argument—it is that,
under the totality of the circumstances, the discovery of a
used, uncapped syringe under the passenger seat, accessible
to defendant but not to Mauel, provided Haugen with prob-
able cause to believe that defendant had the right to con-
trol the methamphetamine found on the scale and syringes
that Haugen found elsewhere in the truck.5 Focusing, as
the state does, on the syringe found under defendant’s seat,
we conclude that Haugen lacked an objectively reasonable
basis to believe that, more likely than not, defendant con-
structively possessed that syringe—much less to believe
that she constructively possessed the truck’s other contents.
Haugen therefore did not have probable cause to arrest her
for unlawful possession of methamphetamine based upon
that discovery.
In reaching that conclusion, we find two of our pre-
vious decisions particularly instructive. In Keller, we held
that an officer lacked probable cause to believe that the
defendant constructively possessed a heroin baggie found
on the car seat next to his passenger’s right leg, when the
defendant was not under the influence at the time of the
police encounter, the baggie was not in his line of sight, and
there was nothing to indicate that the baggie’s contents had
recently been ingested. 280 Or App at 254-55. And, in State
v. Fry, we concluded that the discovery of a “wet” but ulti-
mately untested syringe under the car seat in which the
defendant had been sitting could not support an inference
5
That is, we do not understand the state to suggest that defendant’s prox-
imity to a used syringe, together with her deceptive behavior, appearance, and
association with Mauel, provided Haugen with probable cause to believe that
she possessed methamphetamine other than the methamphetamine found in the
truck.
778 State v. Sanchez-Anderson
that he constructively possessed methamphetamine found
under the control of the car’s other three occupants. 191 Or
App 90, 93, 96, 80 P3d 506 (2003). We reached that conclusion
even though, in that case, an officer approaching the parked
car in which the defendant was seated heard one of the car’s
occupants yell out “cop,” saw all four occupants moving about
as though they were hiding something, saw the defendant
make a “furtive” gesture—specifically, abruptly leaning
forward towards the underside of his seat—and ultimately
found used syringes on two of the other occupants and a full
syringe under the seat of the third. Id. at 92, 96. Although
we acknowledged that the defendant’s behavior provided a
potential link between the defendant and the syringe found
under his seat, the circumstances could not support an
inference that he had a right to control the syringes in the
possession of the car’s other occupants. Id. at 96.
In this case, the circumstances surrounding the dis-
covery of a used syringe under defendant’s seat are analo-
gous to the circumstances in Keller and Fry. Here, although
Haugen thought that defendant looked like an active drug
user, nothing in the record suggests that Haugen suspected
that she was under the influence at the time. That is,
although Haugen described the syringe he found as “used,”
there was no evidence that he saw drug residue within the
syringe or anything else that might suggest it had recently
been used, or that, if it had been, defendant had been the
one who had used it. Moreover, much like the heroin bag-
gie at issue in Keller, the syringe in this case was hidden
from defendant’s view. Finally, unlike the defendant in Fry,
defendant in this case was not described by Haugen as hav-
ing made any furtive gestures or shown any other signs that
she was aware of the syringe or was somehow connected
to it. Under those circumstances, we question whether—
even in light of Haugen’s belief that defendant was an active
drug user with “something to hide”—the discovery of the
syringe under her seat provided Haugen with probable
cause to believe that defendant “knowingly exercise[d] con-
trol over [the syringe] or ha[d] the right to do so.” Keller, 280
Or App at 253. More significantly, however, even if defen-
dant’s appearance and seemingly deceptive behavior could
provide some link to the empty syringe that Haugen found
Cite as 300 Or App 767 (2019) 779
under her seat, that would nonetheless fail to support an
inference that she constructively possessed any of the drugs
or other evidentiary items found in Mauel’s truck. See Fry,
191 Or App at 96. Thus, for either or both of those reasons,
Haugen’s discovery of a used syringe under defendant’s seat
did not provide Haugen probable cause either to believe that
defendant possessed the methamphetamine in the back of
the truck or to arrest her on that basis.
We next consider the state’s argument that the evi-
dence of what appeared to be a “substantial drug-trafficking
operation” provided probable cause to arrest defendant
for possession of methamphetamine. Although the state
does not expressly link that reasoning to its constructive-
possession argument, one might view the state’s “had at least
some connection” argument as a constructive-possession
argument by another name. Thus, we consider whether,
based upon defendant’s association with Mauel, the fact
that Mauel appeared to be involved in drug trafficking, and
the evidence of that operation found in close proximity to
defendant (who was herself an apparent drug user), Haugen
reasonably believed that, more likely than not, defendant
constructively possessed methamphetamine. Again, we find
our case law instructive and conclude that there was insuffi-
cient evidence in this case linking defendant to the perceived
drug-trafficking operation to establish probable cause as to
constructive possession.
As in Keller, which was a probable cause case like
this one, we find guidance in cases relying on constructive-
possession analyses in a slightly different context: the
denial of a defendant’s motion for judgment of acquittal. See
Keller, 280 Or App at 256 (noting Sherman, 270 Or App at
462-63; State v. Leyva, 229 Or App 479, 484-85, 211 P3d
968, rev den, 347 Or 290 (2009); and State v. Coria, 39 Or
App 507, 509-12, 592 P2d 1057, rev den, 286 Or 449 (1979)).
In Sherman, for example, we determined that evidence
that the defendant had been engaged in a joint drug-selling
enterprise with his female codefendant supported the infer-
ence that the defendant had been in constructive posses-
sion of cocaine found during a body-cavity search of the
codefendant. 270 Or App at 463. There, the defendant was
780 State v. Sanchez-Anderson
prosecuted for various drug offenses premised, in part, on
the state’s theory that he had been in constructive possession
of 5.67 grams of cocaine—a “dealer amount”—found hidden
in the vagina of his codefendant, Dean. 270 Or App at 460-
61. The defendant’s arrest followed a month of surveillance
of Dean’s apartment for suspected drug activity. Id. at 460.
When officers arrived at the apartment to execute a search
warrant, they saw the defendant driving away with Dean as
his passenger. Id. Following a brief pursuit, the officer who
arrested the defendant heard him yell to Dean to “ ‘keep her
mouth shut’ and that they had been ‘set up.’ ” Id. Additional
evidence indicated that the defendant lived with Dean in
her apartment, where officers found, in the pocket of a pair
of men’s pants, another 5.65 grams of cocaine packaged into
33 bindles. Id. at 461, 463. Finally, a “deputy testified that,
in his experience, males involved in illegal drug sales will
sometimes seek to insulate themselves from risk by enlist-
ing females to conduct the actual drug transactions but will
be present to receive the proceeds of drug sales.” Id. at 460.
Based upon that evidence, we agreed with the state that
“the circumstantial evidence proving that [the] defendant
was engaged in a joint endeavor to sell cocaine” with another
person, Dean, was “sufficient to establish [the] defendant’s
right to control the cocaine” found in Dean’s body when their
vehicle was stopped by police. Id. at 462.
Here, in marked contrast to Sherman, Haugen had
no information connecting defendant either to Mauel or to
drug-related contraband other than her proximity to them
both on the day of her arrest. That is, nothing Haugen dis-
covered indicated that defendant and Mauel had an ongo-
ing relationship, that she was associated with other places
that were themselves connected with drug activity, or that
she was working in concert with Mauel. For one thing,
although Haugen thought that defendant had “something
to hide,” nothing she said or did compared to the defen-
dant’s insistence in Sherman that the codefendant “keep
her mouth shut.” 270 Or App at 460. Further, unlike the
codefendant in that case, whose concealing of cocaine in her
vagina gave factual context for a deputy’s experience-based
testimony that male drug dealers will sometimes insulate
themselves by having female associates bear much of the
Cite as 300 Or App 767 (2019) 781
attendant risk, id. at 460-63, Haugen’s theory that defen-
dant and Mauel were engaged in a sex-for-drugs relation-
ship appears to have been based on nothing but specula-
tive, gender-based assumptions. Nothing of which Haugen
was aware could support more than the barest of suspicions
that defendant had obtained drugs from Mauel; Haugen’s
further inference that defendant and Mauel were exchang-
ing sex for drugs is the essence of impermissible inference
stacking. See State v. Kolb, 251 Or App 303, 314, 283 P3d
423 (2012) (describing stacking of inferences as relying on
logical “bridge[s] never built”); cf. State v. Daniels, 348 Or
513, 520-22, 234 P3d 976 (2010) (rejecting the state’s argu-
ment that the defendant, a suspected drug dealer, construc-
tively possessed methamphetamine found in his girlfriend’s
purse, because evidence of a “romantic relationship” does
not “give rise to an inference of a partnership relationship”
involving the sharing of personal property, including drugs).
Moreover, Haugen’s training and experience alone could not
cure that deficiency. See State v. Ratliff, 82 Or App 479, 483,
728 P2d 896 (1986), aff’d, 304 Or 254, 744 P2d 247 (1987) (an
officer’s training and experience may enhance the relevance
of a particular fact). As we noted in Webber, “In order for
an attestation regarding training and experience to support
probable cause, it must connect a defendant’s particular con-
duct or circumstances with the specific evidence that police
seek, and it must be supported by objective facts derived
from other sources.” 281 Or App at 350 (internal quotation
marks omitted). Here, the state points to nothing that could
provide that objective underpinning to Haugen’s assumption
that defendant was engaged in a sex-for-drugs relationship;
as a result, it cannot support probable cause.
The circumstances in Leyva and Coria also stand
in stark relief to those present in this case. In Leyva, “evi-
dence supported [the] inference that [the] defendant con-
structively possessed 20 pounds of marijuana in the back
seat of a vehicle in which [the] defendant and another per-
son had been driving ‘for a considerable a distance’ from one
state to another.” Keller, 280 Or App at 256 (quoting Leyva,
229 Or App at 484). Here, to Haugen’s knowledge, defendant
had been in Mauel’s truck only a few minutes. Furthermore,
unlike 20 pounds of marijuana, which would seem unlikely
782 State v. Sanchez-Anderson
to escape the notice of passengers over the course of an inter-
state road trip, the drugs found in this case were essentially
trace amounts and concealed in boxes—which were them-
selves on the floor behind defendant’s seat and so completely
out of her view—and in the console. Similarly, in Coria, the
“evidence was sufficient to establish that a passenger in
a car constructively possessed narcotics hidden within it,
because the people in the car were suspected of transport-
ing narcotics between states and the passenger had been
traveling with the other people in the car for over a week.”
Keller, 280 Or App at 256 (summarizing Coria, 39 Or App at
509-12). We reasoned that, given that context, the “evidence
[was] susceptible of the conclusion that [the] defendant was
more than a mere passenger.” Coria, 39 Or App at 511.
Although in Keller, we distinguished the above cases
on the grounds that, in Keller, “no evidence suggest[ed] that
[the] defendant and his passenger were engaged in selling
illegal drugs,” evidence that was of considerable signifi-
cance to the holdings in those other cases, 280 Or App at
256-57, we do not view defendant’s circumstances as mate-
rially different from those of the defendant in Keller. That
is, although Haugen may reasonably have believed that
someone was engaged in illegal drug sales, defendant’s
connection to that evidence was far more attenuated than
in Sherman, Leyva, or Coria. Mauel and defendant did not
communicate in a manner that suggested they were work-
ing in concert, and Haugen had no nonspeculative basis
to believe the two had an ongoing relationship, as was the
case in Sherman. Further, despite defendant’s proximity to
the drug-trafficking evidence in Mauel’s rental truck, the
few minutes that Haugen knew defendant was in the truck
were a far cry from the hours, days, or even weeks that the
defendants rode in cars laden with contraband in Leyva and
Coria. As a result, defendant’s brief proximity to an appar-
ent drug-trafficking operation is insufficient to establish
that she was anything more than Mauel’s passenger.
In sum, the evidence available to Haugen before
defendant’s arrest could not establish that, more likely
than not, she actually or constructively possessed the drugs
found in the vehicle. Thus, under the totality of the circum-
stances, Haugen’s subjective belief that he had probable
Cite as 300 Or App 767 (2019) 783
cause to arrest defendant for unlawful possession of meth-
amphetamine was not objectively reasonable. As a result,
defendant’s search incident to that arrest was unlawful, and
the trial court erred in denying her motion to suppress the
evidence Haugen had obtained in the course of that search.
Further, because the state advances no argument that the
subsequent search of defendant’s cellphones was somehow
attenuated from the illegal search that led to their seizure,
we conclude that the trial court erred in denying defendant’s
motion to suppress the results of that search.
Reversed and remanded.