State v. Plummer

WARREN, S. J.

The state appeals from an order in which the trial court suppressed evidence of the contents of a syringe and of material allegedly taken from defendant’s purse after her arrest for assaulting a police officer. The court entered the order on remand from our reversal of a previous order suppressing the same evidence. In the order now before us, the trial court concluded that the arresting officer did not have probable cause to believe that the syringe contained a controlled substance and that she did not have probable cause to arrest defendant for possession of a controlled substance. It therefore suppressed all the challenged evidence except for the syringe itself, because the syringe was the weapon that defendant allegedly used in assaulting the officer. In light of our standard of review of the trial court’s factual findings, we affirm.

We take the facts from our previous decision. State v. Plummer, 134 Or App 438, 895 P2d 1384 (1995):

“In June 1993, defendant visited her former boyfriend, Cisco, at a Portland motel. Shortly after defendant entered Cisco’s room, his friend, Cavagnaro, entered the motel parking lot. Deputy Mockler followed Cavagnaro into the lot, because she noticed that the registration on his car had expired. Cavagnaro could not produce a driver’s license or registration for the car. At that time, Cisco approached the car. Mockler asked both men to step away from the car. Deputy Malanaphy then arrived. Mockler arrested Cavag-naro for failure to possess and display a driver’s license and put him in her patrol car. She then tried to confirm his identity and to determine whether the car he had been driving was stolen. Cavagnaro told Mockler that he and Cisco were staying in Room 2 at the motel and said that there might be something that would confirm his identity in the room.

“In the meantime, Malanaphy did a precautionary pat-down of Cisco to determine whether he had any weapons on his person. During the pat-down, Malanaphy discovered methamphetamine on Cisco and arrested him. Mockler knocked on the door to Room 2. The testimony about what happened next is in conflict. Mockler testified that defendant let her into the room. When Mockler asked defendant about her identity, defendant gave only her first name and began to appear nervous. Defendant went to her purse and began to rummage through it with her back turned away from Mockler. Mockler became concerned about her safety and asked defendant to step away from the purse. On the other hand, defendant testified that she told Mockler her full name and that when she went to get her driver’s license, Mockler came into the room uninvited and began searching through various containers. The parties agree that, shortly after Mockler asked defendant about her identity, defendant ran to the bathroom and flushed a plastic baggie down the toilet. Mockler did not see the contents of the baggie.

“The evidence about what happened next is also in conflict. Mockler testified that when she apprehended defendant in the bathroom, defendant attacked her and pierced her skin with a syringe. Mockler wrestled defendant to the ground and arrested her. Mockler testified that she observed a brown substance, which she thought was methamphetamine, in the syringe. Defendant testified that, after she flushed the baggie down the toilet, she instinctively put up her hands when Mockler tackled her. She said that she saw a syringe lying on the floor and tried to push it away from her face, but Mockler took her hand.

“After Mockler put defendant in the patrol car, she went back into the room and seized the syringe. She also searched defendant’s purse. She testified that she seized drug paraphernalia and drug records from it. Defendant claimed that those items came from other containers in the room. Later, defendant moved to suppress ‘any and all evidence of whatever kind * * * which the state intends to offer as a basis of defendant’s conviction herein.’ The trial court granted the motion, in part, and it suppressed the contents of the syringe and the evidence allegedly seized from defendant’s purse.” 134 Or App at 440-41 (footnote omitted).

The trial court based its original decision to suppress on its conclusion that Mockler arrested defendant solely for assault. It expressly refused to believe Mockler’s testimony that she actually arrested defendant for possession of a controlled substance, the methamphetamine that Mockler allegedly saw in the syringe. Because Mockler did not arrest defendant for possession, the court concluded, she could not search her incident to an arrest on that charge. On appeal, we reversed the order suppressing evidence, holding that the trial court had failed to recognize that Mockler could search incident to a presumed arrest for possession of a controlled substance if, when she arrested defendant for assault and before she conducted the search, Mockler also had probable cause to arrest for possession. We remanded the case for the trial court to determine whether Mockler in fact had probable cause to make such an arrest and whether she had probable cause to believe that the syringe contained a controlled substance. 134 Or App at 441-43.

On remand, the trial court, without taking new evidence or hearing additional argument, entered an order in which it found that Mockler did not have probable cause to believe that the syringe contained a controlled substance and did not have probable cause to arrest defendant for possession of a controlled substance. It therefore again suppressed the same evidence that it had previously suppressed. The state appeals from that order.

Probable cause has two components, an objective one and a subjective one. “An officer must subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure, and this belief must be objectively reasonable under the circumstances.” State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986). The state points to considerable evidence in the record that a belief that defendant had committed the crime of possession of a controlled substance would be objectively reasonable. It also cites Mockler’s testimony that, if believed, would show that she believed that defendant had committed that crime and, thus, had subjective probable cause. The problem for the state is that the trial court apparently did not believe Mockler’s testimony in this respect.

In explaining its original suppression order, the court described why it did not believe that Mockler arrested defendant for possession, despite Mockler’s testimony that she had done so:

“ ‘[T]he officer testified * * * that she saw some minuscule brown substance in the needle, after she had been assaulted [and] taken to the floor [and] that she really [arrested defendant] for that methamphetamine.

“ ‘I don’t really believe that. I believe what happened, that she arrested [defendant] because she was assaulted and that incident to this arrest she can seize the needle, she can’t go looking around for everything else in the apartment.’ ” Quoted in Plummer, 134 Or App at 442.

The trial court also commented that, after hearing the evidence on the motion to suppress, it determined “that part of each of these versions contain kernels of truth and also certain measures of the other stuff.”

The court did not expressly state that it disbelieved Mockler’s testimony that she believed that the needle contained a controlled substance. In light of its disbelief of her testimony about the grounds for arresting defendant, however, the explanation for the court’s renewed order suppressing the evidence may well have been that it did not believe her testimony about what she saw in the syringe or that she otherwise had probable cause to arrest for possession. Under our standard of review, that is what we must assume the trial court did. We will not disturb the trial court’s findings of fact on a motion to suppress evidence if there is evidence in the record to support the findings. If the trial court fails to make express findings on all pertinent facts and there is conflicting evidence in the record, we will presume that it found facts consistent with its ultimate conclusion. State v. Keeney, 323 Or 309, 317, 320, 918 P2d 419 (1996); Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). When a witness has been found false in part of the witness’ testimony, the trial court may disbelieve part or all of the rest of the testimony. See Keeney, 323 Or at 319-20 (when trial court finds on motion to controvert that search warrant affiant was false in part of affidavit, it may disbelieve some or all of the rest of the affidavit).

If the trial court did not believe Mockler, then it could properly have found that she did not have subjective probable cause to arrest defendant for possession of a controlled substance. Lack of probable cause to arrest, of course, would mean that there could be no search incident to a presumed arrest on that charge and that the things seized pursuant to such a presumed arrest should be suppressed.¹

The evidence that the dissent discusses shows primarily that there was substantial objective probable cause to support an arrest for possession of a controlled substance. From that evidence, the dissent appears to argue that, as a matter of law, Mockler also had subjective probable cause for such an arrest. The dissent would apparently treat what it believes to be overwhelming evidence of objective probable cause as sufficient to require the trial court to find that there also was subjective probable cause. In so doing, it would combine and confuse the two distinct aspects of probable cause, as the Supreme Court has defined it, into a single unitary test. The proper issue, however, is not how strong the objective probable cause was but what Mockler subjectively believed at the time of the arrest. The trial court expressly rejected the state’s argument that Mockler in fact arrested defendant for possession, and it disbelieved at least part of her testimony. Those actions suggest that the court did not necessarily accept Mockler’s explanation of her actions and that it did not think that Mockler believed that she had probable cause for an arrest for possession.* ²

The question is not how we would rule on this issue if we had de novo review of the facts. Rather, the question is whether the evidence compels a conclusion about Mocker’s internal thought process. That is an inherently factual issue that, under Ball, is committed to the trial court. Although it would have been preferable for the trial court to have entered express findings on remand, Ball requires us to resolve all evidentiary conflicts in favor of the trial court’s ultimate conclusion. In light of the trial court’s express distrust of at least part of Mockler’s testimony, her subjective beliefs are necessarily among those conflicts. The situation, thus, is similar to that in State v. Leavitt, 141 Or App 588, 920 P2d 552, rev den 324 Or 323 (1996), in which, according to the dissent in Leavitt, the trial court found facts that were directly contrary to the officer’s actions as shown in a contemporaneous videotape. We concluded that, although we might have reached a different conclusion from the trial court’s, we were bound by its findings of historical fact because there was evidence to support them. That is the nature of our review in cases of this sort, including this one. As in Leavitt, it requires us to affirm the trial court’s order.

Affirmed.

1 The trial court held that Mockler properly seized the syringe itself as evidence of the crime of assault. The state does not argue that, after that seizure and after the arrest, Mockler or some other officer obtained both objective and subjective probable cause to believe that the syringe contained methamphetamine. Because the state does not make that argument, it also does not make the additional argument that that probable cause would independently permit testing of the contents of the syringe.

2 Mocker’s actions do not require the conclusion that she thought that she had probable cause to arrest for possession. Chasing defendant into the bathroom, for instance, is something that an officer might do, for reasons of safety, whenever a suspect suddenly bolted.