State v. Sunderman

                                      329

  Argued and submitted January 30, 2019; case no. 15CR44342 reversed and
    remanded, case no. 15CR50447 reversed and remanded May 20, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                 YEVETTE JEAN SUNDERMAN,
                       Defendant-Appellant.
                  Deschutes County Circuit Court
                     15CR44342, 15CR50447;
                    A164915 (Control), A164916
                                   

     In this consolidated criminal appeal, defendant appeals two judgments of
conviction. In case number 15CR44342, the state charged defendant with a single count of unlawful possession of methamphetamine, ORS 475.894. In case
number 15CR50447, the state charged defendant with one count each of unlawful
delivery of methamphetamine, ORS 475.890, and unlawful possession of methamphetamine, ORS 475.894. Following the denial of her motions to suppress in
both cases, defendant entered conditional guilty pleas to the charged crimes. On
appeal, defendant contends that the trial court erred when it denied her motions
to suppress in both cases, because the searches that resulted in the discovery
of methamphetamine were not conducted pursuant to a search warrant and no
exception to the warrant requirement provided a constitutional justification for
either search. Held: The Court of Appeals accepted the state’s concession that
the trial court erred when it denied defendant’s motion to suppress in case number 15CR44342 and reversed and remanded without further discussion. With
regard to the trial court’s denial of defendant’s motion to suppress in case number
15CR50447, the Court of Appeals concluded that the state failed to offer sufficient evidence to prove that defendant actually consented to a search of her
purse. Furthermore, the facts known to the officer at the time of the search did
not provide the officer with probable cause to believe that methamphetamine
would be found in defendant’s car, and, thus, the automobile exception did not
justify the warrantless search of defendant’s purse. Accordingly, the Court of
Appeals concluded that the trial court erred when it denied defendant’s motion to
suppress in case number 15CR50447.
   Case No. 15CR44342 reversed and remanded; Case No. 15CR50447 reversed
and remanded.



    Alta Jean Brady, Judge.
   Morgen E. Daniels, 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.
330                                     State v. Sunderman

   Rolf C. Moan, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
   TOOKEY, J.
  Case No. 15CR44342 reversed and remanded; Case No.
15CR50447 reversed and remanded.
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        TOOKEY, J.
         In this consolidated criminal appeal, defendant
appeals two judgments of conviction. In case number
15CR44342, the state charged defendant with a single
count of unlawful possession of methamphetamine, ORS
475.894. In case number 15CR50447, the state charged
defendant with one count each of unlawful delivery of methamphetamine, ORS 475.890, and unlawful possession of
methamphetamine, ORS 475.894. Following the denial of
her motions to suppress in both cases, defendant entered
conditional guilty pleas to the charged crimes. On appeal,
defendant contends that the trial court erred when it denied
her motions to suppress in both cases, because the searches
were not conducted pursuant to a search warrant and no
exception to the warrant requirement provided a constitutional justification for either search.
         In case number 15CR44342, the state concedes, and
we agree, that the trial court erred when it denied defendant’s motion to suppress. Because a discussion of the facts
and law underlying our acceptance of the state’s concession
would not benefit the bench, bar, or public, we conclude that
the trial court erred when it denied defendant’s motion to
suppress in case number 15CR44342 without further discussion. Accordingly, in case number 15CR44342 we reverse
and remand.
         With regard to the trial court’s denial of defendant’s
motion to suppress in case number the state contends that
the warrantless search was justified by defendant’s consent
or, in the alternative, by the automobile exception to the
warrant requirement. For the reasons expressed below, we
conclude that the state failed to offer sufficient evidence to
prove that defendant actually consented to a search of her
purse. Furthermore, the facts known to the officer at the
time of the search did not provide the officer with probable cause to believe that methamphetamine would be found
in defendant’s car, and, thus, the automobile exception did
not justify the warrantless search of defendant’s purse.
Accordingly, the trial court erred when it denied defendant’s
motion to suppress in case number 15CR50447. Therefore,
in case number 15CR50447, we also reverse and remand.
332                                                   State v. Sunderman

                           I. BACKGROUND
         We state the facts from the suppression hearing in
case number 15CR50447 consistently with the trial court’s
explicit and implicit findings that are supported by constitutionally sufficient evidence in the record. State v. Ehly, 

, 

 (1993); State v. Barber, 

, 

 (2016).1
         Deputy Baltzor pulled defendant over for failing to
use her turn signal. Deputy Bartness was in the area and
covered Baltzor on the traffic stop “almost immediately”
after Baltzor had pulled defendant over. Baltzor obtained
defendant’s driver’s license and paperwork and returned to
his police car to run defendant’s information while Bartness
approached defendant’s car to speak to defendant.
        When Bartness got to the passenger side of defendant’s car, the glove box was open, and he saw two clear
unused pipes that were partially wrapped in tissue paper.
Based on his training and experience, Bartness had “no
doubt in [his] mind that they were meth pipes” because,
    1
      The unlawfully obtained evidence of methamphetamine possession in
case number 15CR44342 was discovered about a month before defendant was
stopped in case number 15CR50447. In its brief, the state relies on a deputy’s
earlier unlawful discovery of methamphetamine in defendant’s purse in case
number 15CR44342 to argue that defendant consented to a search of her purse
in case number 15CR50447. Because the evidence in case number 15CR44342
was discovered unlawfully and should have been suppressed, we do not consider
that unlawfully discovered evidence in this case as a justification for the later
warrantless search. See State v. Davis, 

, 

 (1983)
(“[R]ules of law designed to protect citizens against unauthorized or illegal
searches or seizures of their persons, property, or private effects are to be given
effect by denying the state the use of evidence secured in violation of those rules
against the persons whose rights were violated, or, in effect, by restoring the
parties to their position as if the state’s officers had remained within the limits
of their authority.”); State v. Nicholson, 

, 

,
rev den, 

 (1988) (concluding that, where previous seizure and discovery
of evidence relating to methamphetamine was unlawful, that evidence was properly suppressed and could not be used to support the issuance of a warrant in a
different case where the purpose was also to convict defendant for methamphetamine crimes). Even if we were to consider the unlawfully discovered evidence of
methamphetamine possession in case number 15CR44342, it would not change
our conclusion that the state failed to meet its burden to prove that defendant
consented to a search of her purse, because, as we explain below, the deputy
could not recall with any precision how he made his request, if any, to search
defendant’s purse or defendant’s response, and the only evidence of defendant’s
response to any such request, is defendant’s testimony that she expressly refused
to consent to a search of her purse.
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“during [his] career, those exact pipes … have always been
associated with methamphetamine” and have a distinctive
shape.2 Bartness further testified that the methamphetamine pipes are not used to consume other controlled substances like marijuana, and that, when he finds methamphetamine pipes in a person’s car or on their person, he also
finds methamphetamine 75 percent of the time. Bartness
clarified that, in his experience as a deputy, it is “more likely
than not” that he will also find methamphetamine when the
methamphetamine pipes are unused, because “[i]f anybody’s
going to be associated with a meth pipe, they’re going to be
associated with the use” of methamphetamine. However, in
his six-year career, Bartness could only recall one specific
instance in which the discovery of an unused methamphetamine pipe resulted in the discovery of additional drugs in
the person’s vehicle. Furthermore, Bartness acknowledged
that unused methamphetamine pipes are not illegal to possess and that “they sell them at stores here in town.”
        In addition, there was a two-month-old report that
someone had knocked on defendant’s neighbor’s door in the
middle of the night and was looking for the house that defendant was living in to purchase methamphetamine.3 Based
on his observation of the unused methamphetamine pipes,
his training and experience, and the information that he
“had been receiving around town regarding [defendant] and
what she had been up to,” Bartness testified that he had
     2
        Baltzor testified that, “[m]ethamphetamine pipes have a really distinct
shape. They’re typically a small bulb with a small hole on top, and then there’s
a glass stem that comes off of it. They’re almost always clear, and they’re pretty
consistent in size.” Bartness testified that Baltzor’s explanation of the appearance of a methamphetamine pipe was consistent with his experience as a
deputy.
     3
        Baltzor clarified that the two-month old report from defendant’s neighbor
had been received sometime in August. The stop occurred on October 1.
     Baltzor also testified that “[w]e had several concerned citizens at the …
trailer park … where [defendant] lived, that were telling us that [she] was
potentially selling narcotics from her trailer.” They reported that “there was
well-known drug users from the community, which it’s a small community, that
were in and out of [defendant’s] trailer … [for] quick stopovers late at night, at
odd hours.”
     Other than those somewhat vague reports of “potential” narcotics sales,
which were never confirmed, Baltzor testified about the same two-month old
report from defendant’s next door neighbor “that someone knocked on her door
… in an attempt to buy narcotics.”
334                                      State v. Sunderman

probable cause to believe that methamphetamine would be
found in defendant’s car.
         However, “just to be covered twice,” Bartness also
decided to ask defendant for consent to search her car
because he thought that the issue of probable cause to search
“would be a close one.” Bartness believed that the unused
methamphetamine pipes presented “[a] little gray area” and
testified that, if defendant had denied his request for consent to search her car, he “probably [would have] made a
phone call to a DA and see what they had to say about it.”
Accordingly, Bartness approached the driver’s side of defendant’s car and, without mentioning that he had seen the
methamphetamine pipes in the glove box, asked defendant
for consent to search her car.
          Bartness did not remember exactly how he asked
defendant for her consent to search her car or defendant’s
exact response, but he testified that defendant gave him consent to search her car and that he did not believe that defendant had placed any limitations on where he could search
or what he was allowed to search in her car. Bartness “was
not too clear” on the following sequence of events because
he did not write a report, but he testified that defendant got
out of her car and that he “located some methamphetamine
… inside the wallet that was inside of her purse.” Bartness
could not recall if defendant gave him consent to search her
purse or the wallet that was inside of her purse. Defendant
testified that, after she had consented to a search of her car,
she had taken her purse out of her car and placed it on the
hood, and that she expressly refused to consent to a search
of her purse.
         Before Baltzor finished processing the traffic stop,
Bartness “returned to [Baltzor’s] patrol car with methamphetamine pipes and methamphetamine.” Baltzor secured
those items in the patrol car and then went to talk to defendant. Baltzor handcuffed defendant, provided her with
Miranda warnings, and asked her questions about the pipes
and the methamphetamine. Defendant told Baltzor that she
and some people from her work had pooled their money to
have defendant buy methamphetamine and that she had
purchased the methamphetamine and the pipes for two of
Cite as 

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her coworkers. Defendant testified that she would not have
made those incriminating statements if Baltzor had not
arrested her for the methamphetamine that was discovered
in the wallet in her purse.
       The state charged defendant with one count of
unlawful delivery of methamphetamine and one count of
unlawful possession of methamphetamine.
         Before trial, defendant moved to suppress all of the
evidence that was derived from the warrantless search of her
purse, including her incriminating statements. Defendant
argued that the state had not met its burden to establish
that she had consented to a search of her purse, because
Bartness could not recall what happened once defendant
exited her car or whether defendant gave him consent to
search her purse. Defendant also contended that there was
“no probable cause” to justify the search under any other
exception to the warrant requirement, because “[t]he observation of drug paraphernalia, standing alone, does not constitute probable cause to search,” and because Bartness “was
equivocal about whether he had probable cause to begin a
search of defendant’s car and purse without her consent.”
         The state responded that defendant validly consented to a search of her car and purse, thereby providing
an exception to the warrant requirement. In the alternative, the state argued that the automobile exception to the
warrant requirement also justified the warrantless search
because Bartness had probable cause to believe that there
would be methamphetamine in the car based on his observation of the methamphetamine pipes, his training and
experience, and his knowledge of defendant’s involvement
with methamphetamine in the community.
         The trial court denied defendant’s motion to suppress, concluding that “defendant consented to a search of
her car, and that this consent included consent to search her
purse which was located within the car when defendant consented to the search.” The trial court did not rule on whether
the automobile exception justified the warrantless search
of defendant’s purse. Following the denial of her motion to
suppress, defendant entered a conditional guilty plea to the
336                                     State v. Sunderman

charged crimes of possession and delivery of methamphetamine. See ORS 135.335(3) (“With the consent of the court
and the state, a defendant may enter a conditional plea
of guilty or no contest reserving, in writing, the right, on
appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who
finally prevails on appeal may withdraw the plea.”).
         On appeal, the parties reprise their arguments
about whether defendant’s consent or the automobile exception justified the warrantless search of defendant’s purse
and wallet. For the reasons that follow, we conclude that the
state failed to offer sufficient evidence to prove that defendant actually consented to a search of her purse. We further
conclude that, because Bartness did not have probable cause
to believe methamphetamine would be found in defendant’s
possession, the automobile exception did not justify the warrantless search of defendant’s purse, and, thus, we cannot
affirm on that basis.
                      II. ANALYSIS
A.    Consent
         Article I, section 9, of the Oregon Constitution
establishes the right of the people “to be secure in their
persons, houses, papers, and effects, against unreasonable
search, or seizure.” A warrantless search is “per se unreasonable” under Article I, section 9, unless the search is done
pursuant to “one of the few specifically established and welldelineated exceptions to the warrant requirement.” State v.
Davis, 

, 

 (1983) (internal quotation marks omitted). Consent is one of the recognized exceptions to the warrant requirement under Article I, section 9.
State v. Paulson, 

, 

 (1992). The
consent exception “posits that, by voluntarily granting a
governmental actor permission to search a place or thing,
the person relinquishes his or her privacy interest in the
place or thing so that there is no intrusion by the state into
a protected privacy interest that must be justified.” State v.
Blair, 

, 

 (2017).
       Under the consent exception to the warrant requirement, the state must prove by “a preponderance of the
Cite as 

 (2020)                            337

evidence” that the consent was actually given “under the
totality of the circumstances.” State v. Jepson, 

, 

 (2012). For us to determine whether
the alleged consent was “actually” given, “the state must
establish with some precision how the law enforcement officers make a request of a defendant[.]” State v. Musalf, 

, 

 (2016) (citing State v. Warner,

, 

 (1978) (“[A]ppellate courts
must know what the state’s witnesses contend was actually
said, in order for appellate courts to discharge their constitutional function in determining the validity of consent.”)).
         Here, defendant does not argue that any consent
she gave was involuntary. Rather, relying on Bartness’s
inability to recall with any precision how he asked for consent to search her car or defendant’s response, what happened once defendant exited her car, and whether defendant
gave him consent to search her purse, and defendant’s own
testimony that she expressly refused to consent to a search
of her purse, defendant claims that she did not consent to
Bartness searching her purse at all.
         As discussed above, Bartness did not remember
exactly how he asked defendant for her consent to search
her car or defendant’s exact response, but Bartness believed
that defendant did give him consent to search her car without limitation. Bartness “was not too clear” on what happened next because he did not write a report, but he testified
that, after defendant got out of her car, he “located some
methamphetamine … inside the wallet that was inside of
her purse.” Bartness could not recall what happened once
defendant exited her car or whether defendant gave him consent to search her purse with any precision. Thus, the only
evidence in the record relating to how Bartness made his
request, if any, to search defendant’s purse, and defendant’s
response to any such request, is from defendant’s own testimony. Defendant testified that, after she agreed to allow
Bartness to search her car, she had taken her purse out of
her car and placed it on the hood, and that she expressly
refused to consent to a search of her purse.
       On this record, considering the totality of the circumstances, we conclude that the state failed to prove by a
338                                      State v. Sunderman

preponderance of the evidence that defendant actually consented to a warrantless search of her purse. The only evidence in the record about any request to search defendant’s
purse is that, after defendant consented to a search of her
car, she removed her purse, placed it on the hood of her car,
and unambiguously refused to consent to a search of its contents. Because the state failed to establish with any precision how Bartness made his request for defendant’s consent
to search her car or defendant’s response, the evidence is
insufficient to establish that the scope of defendant’s consent to search her car extended to a search of her purse, or
that defendant had consented to a search of her purse once
she had removed it from her car. See Blair, 

(“[I]n determining whether a particular search falls within
the scope of a defendant’s consent, the trial court will determine, based on the totality of circumstances, what the defendant actually intended. However, where, after considering
those circumstances, the defendant’s intent with respect to
the scope of consent is unambiguously expressed, that manifestation of intent is controlling.”); State v. Watts, 

, 

 (2017) (concluding that the
state failed to meet its burden to prove that the defendant
consented to a warrantless search of his home, because the
only evidence of how the request was made was from defendant’s own testimony, and the officer’s statement could not
reasonably be understood as a request to obtain consent);
State v. Lowe, 

, 

 (1996) (concluding that the state failed to meet its burden to prove that
the defendant consented to take field sobriety tests when
the record contained no testimony from the officer concerning how he made the request for the defendant to take field
sobriety tests and the defendant testified that he felt that he
had no choice but to consent to the search). Thus, the trial
court erred when it concluded that the state had met its burden to prove that defendant actually consented to a search
of her purse.

B. Automobile Exception

         As noted above, Article I, section 9, establishes the
right of the people “to be secure in their persons, houses,
papers, and effects, against unreasonable search, or seizure”
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and, under that provision, “warrantless searches are per se
unreasonable unless they fall within one of the few specifically established and limited exceptions to the warrant
requirement.” State v. Bliss, 

, 

(2018). One such exception to the warrant requirement
is the “automobile exception.” 

. There are two
requirements that must be met for the automobile exception
to apply: “(1) the car must have been mobile at the time it
was lawfully stopped by the police; and (2) the police had
probable cause to believe that the car contained contraband
or crime evidence at the time of the search.” 

.

          With regard to the first requirement—that the car
must have been mobile at the time it was lawfully stopped
by the police—defendant contends that that requirement
was not met because her car had already been stopped for a
traffic infraction before Bartness encountered it in connection with a crime. The Supreme Court recently rejected that
very argument in Bliss. The court concluded that a vehicle
is “mobile” for purposes of the automobile exception if it has
been lawfully stopped for a traffic violation, and that police
may develop the requisite probable cause in the course of
an otherwise lawful stop. 

 For the reasons that the court
expressed in Bliss, we reject defendant’s argument that her
car was not “mobile” because she had already been stopped
for a traffic infraction before Bartness encountered it in connection with a crime. Thus, we turn to the second requirement to determine whether Bartness developed probable
cause during the lawful stop to believe that methamphetamine would be found in defendant’s car.

         Even if a vehicle is “mobile,” the “automobile exception does not justify a warrantless search in the absence
of probable cause to search.” State v. Herrin, 

, 

 (1996) (internal quotation marks omitted). “[T]he test for whether the police had probable cause
to conduct a search under the automobile exception [is] …
‘whether a magistrate could issue a constitutionally sound
search warrant based on the probable cause articulated by
the officers.’ ” State v. Tovar, 

, 

,
rev den, 

 (2013) (quoting State v. Brown, 

, 

 (1986)).
340                                                   State v. Sunderman

    “Probable cause exists if the facts on which the officers
    relied would lead a reasonable person to believe that seizable things will probably be found in the location to be
    searched. The standard is one of probability, not certainty.
    In assessing probable cause, a court must consider the
    totality of the circumstances, including the officer’s training and experience. In addition, the facts articulated in
    support of probable cause must be assessed in a commonsense and realistic fashion.”
State v. Foster, 

, 

 (2011) (internal
quotation marks and citations omitted).
         Moreover, “in order to search containers within a
vehicle,” such as defendant’s purse, “an officer need not have
probable cause to believe that a discrete container holds
evidence of crime,” because “the proper scope of a search
under the automobile exception is defined by the warrant
that the officer could have obtained.” State v. Furrillo, 

, 

 (2015) (internal quotation
marks, brackets, and emphasis omitted). Defendant’s purse
“was subject to search” under the automobile exception if
it was “within the vehicle that … [Bartness reasonably]
expected to contain contraband or crime evidence.” 

 Thus,
the question reduces to whether the facts on which Bartness
relied “would lead a reasonable person to believe” that methamphetamine would “probably” be found in defendant’s car.

 Or at 169 (internal quotation marks omitted).
Again, it is the state’s burden to prove that a warrantless
search was supported by probable cause. ORS 133.693(4).
        Here, the facts known to Bartness at the time
he searched defendant’s car were that: (1) Bartness had

    4
      We reject defendant’s argument that Bartness did not subjectively believe
that he would probably find methamphetamine in defendant’s car after viewing the unused methamphetamine pipes because Bartness “was equivocal about
whether he had probable cause to begin a search of defendant’s car and purse
without her consent.” As noted, Bartness testified that he asked for consent
“just to be covered twice,” because he thought that the issue of probable cause to
search “would be a close one.” However, Bartness also repeatedly testified that he
believed that, when he finds methamphetamine pipes, it is “more likely than not”
that he will also find methamphetamine. That testimony is sufficient to establish
Bartness’s subjective belief that that he would probably find methamphetamine
in defendant’s car after viewing the unused methamphetamine pipes. State v.
Chambless, 

, 

, rev den, 

 (1992) (With
regard to probable cause, “ ‘[p]robably’ means ‘more likely than not.’ ”).
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received a two-month-old report from defendant’s neighbor
that indicated that defendant was living in a house known
for distributing methamphetamine, (2) defendant had two
unused methamphetamine pipes in the glove box of her
car, and (3) based on his training and experience, Bartness
subjectively believed that it is more probable than not that
he will find methamphetamine when he finds methamphetamine pipes, even when the pipes are unused, because
“[i]f anybody’s going to be associated with a meth pipe, they’re
going to be associated with the use” of methamphetamine.
        We turn to the first question of what weight, if any,
should be given to the information provided by defendant’s
neighbor. As we explain below, the evidence that defendant
was living in a house known for distributing methamphetamine two months earlier adds little—if anything—to the
probable cause calculus under these circumstances.
         As noted, Bartness had received information that
a person had knocked on defendant’s neighbor’s door two
months before in the middle of the night and was looking
for the house that defendant was living in at the time to
purchase methamphetamine. Based on that information,
Bartness testified that defendant “was involved with [the]
distribution, delivery, and possession of methamphetamine.” The only specific information in this record that
we can ascertain about the house defendant was living in
two months before the stop is that there was a single possible sale of an unknown quantity of methamphetamine that
occurred at a location other than defendant’s car. See State
v. Wilson, 

, 

 (2001) (concluding that the affidavit was insufficient to establish probable cause to search the defendants’ residence where “the
affidavit described a single sale of an unknown quantity of
methamphetamine that occurred at some undisclosed time
at a location other than defendants’ residence”). That evidence is insufficient to permit a reasonable inference that
methamphetamine would probably be found in defendant’s
car two months later.
        “Oregon courts have long emphasized that information about drugs is prone to staleness.” State v. Chase,

, 

 (2008). That is especially
342                                     State v. Sunderman

true where, as here, the information about the house defendant was residing in was approximately two months old,
and the record does not indicate who was in possession of
the methamphetamine at that house, what the prior history
of methamphetamine distribution at the premises was, and
what amount of methamphetamine—if any—had been sold
at that house. See State v. Poulson, 

, 

 (1997) (“In evaluating the affidavit, the lapse of
time after which information becomes stale depends on all
the circumstances.” (Internal quotation marks omitted.));
State v. Kittredge/Anderson, 

, 

 (1978) (where the search warrant affidavit stated that a
confidential reliable informant had been at a certain premises within the last 96 hours and had observed marijuana
while there, averment was insufficient to establish probable cause because it did not state who was in possession of
the marijuana, what the prior history of marijuana use at
the premises was, or what amount of marijuana had been
at the premises, and, without such information, the magistrate had no way of knowing whether drugs would continue
to be at the premises). Because there is no evidence that
the drug distribution was ongoing, or that defendant was,
in fact, the person selling an unknown quantity methamphetamine in that home, it is not reasonable to infer from
that evidence that defendant would have methamphetamine
in her car two months later. See State v. Foster, 

, 

 (2010), aff’d, 

, 

(2011) (concluding that an informant’s tip should be given
little weight in the probable cause analysis where the tip
was a “nonspecific” tip that the defendant was selling small
quantities of methamphetamine, no “purchaser was identified, no location was specified, … no basis for the informant’s knowledge was demonstrated,” and, “by the time of
the search[,] … the tip was six months old”).
        Furthermore, there is no testimony from Bartness
regarding his training and experience that might provide that essential link. See State v. Goodman, 

, 

 (1999) (“Facts derived from training and
experience may contribute th[e] necessary factual nexus
in a determination of probable cause.”). There is no testimony from Bartness regarding, for example, why, based on
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his training and experience, the possible distribution of an
unknown quantity of methamphetamine from the house
defendant lived in might indicate that defendant herself
continued to sell methamphetamine and transport it in her
car, and, therefore, would have methamphetamine in her car
two months later. See State v. Huff, 

,

 (2012) (observing that there was no averment
from the officer regarding “the typical recidivist behavior
of drug dealers or why, based on the officer’s training and
experience, the possession of a user amount of drugs by a
former dealer or consorting with another prior drug offender
might indicate that defendant was continuing to deal in illegal substances” (emphasis in original)). Accordingly, because
it would require far “too great [of] an inferential leap” to
conclude from that evidence that methamphetamine would
probably be found in defendant’s car two months later, we
conclude that the report from defendant’s neighbor should
be accorded no weight whatsoever in our probable cause
calculous. State v. Bivins, 

, 

(2004).5
         What we are left with then, is defendant’s possession of two unused methamphetamine pipes and Bartness’s
subjective belief that, based on his training and experience,
it was more likely than not that he would find evidence of
methamphetamine based on his discovery of those pipes.
         To begin with, we have held that “additional facts
beyond the current possession [of a small amount of methamphetamine and a pipe containing residue] must be presented to establish the probability that further evidence of
criminal activity will be found at the suspected location.”
Huff, 

. “We have [also] emphasized
that an officer’s observation of a defendant’s intoxication is
insufficient to establish the inference that a defendant presently possesses a controlled substance.” State v. Schmitz,

, 177, 

 (2019).
    5
      For those same reasons, we decline to give any weight to the even vaguer
reports of “potential” narcotics sales at defendant’s trailer from unnamed “concerned citizens.” 304 Or App at 333 n 3. See State v. Bertsch, 

, 

 (2012) (“We have repeatedly said that a person’s presence in a
location associated with drug activity is insufficient to support an objectively reasonable belief that that person is himself or herself engaged in drug activity.”).
344                                     State v. Sunderman

         We conclude that the same must be true for the
lawful possession of unused drug paraphernalia. Compare
Huff, 

 (concluding that discovery
of a “meth pipe with residue” in the defendant’s RV was
insufficient for the affidavit to establish probable cause to
search the defendant’s RV, because “the affidavit … d[id]
not provide any potential linkage between … the presence
of a single implement of use (the pipe) and the likelihood of
more drugs or other implements that might bear traces of
the drug, let alone a direct one” (emphasis in original)) with
State v. Klingler, 

, 

 (2017)
(distinguishing Huff and concluding that the affidavit provided the necessary additional evidence “beyond mere possession of a user quantity of narcotics” to search the defendant’s RV where the defendant had more than two ounces
of marijuana in his truck, but also admitted that he had
more marijuana in his RV, and the defendant’s landlord also
admitted to processing marijuana for the defendant to distribute on the same property on which the RV was located,
and the defendant’s landlord showed officers the marijuana
that she was processing in her home).
         That is, something more than the discovery of
unused methamphetamine pipes is required to establish
probable cause of current possession of methamphetamine.
As to that issue, our analyses in Schmitz and State v. Oller,

, 

 (2016), rev den, 

(2017)—although those cases involve the less stringent standard of reasonable suspicion—are instructive.
         In Oller, the officer stopped the defendant for a
traffic violation after noticing that the defendant’s passenger was a known drug user that was on probation for drug
crimes. 

. After he finished processing
the traffic violation, the officer lawfully observed syringes
in the pocket of the defendant’s driver’s side door that “were
of a type that intravenous drug users typically use.” 

 At
that point the officer believed he had reasonable suspicion
to extend the stop to investigate the defendant for a drug
offense. 

 We first concluded that the officer’s “observation of the syringes alone could not support the inference
that defendant used them to inject illegal drugs” because
the officer did not testify “that the syringes [the defendant]
Cite as 

 (2020)                                345

possessed were unique to IV drug users” or give any description of the syringes that would indicate that the defendant
was an active drug user by, for example, explaining whether
the syringes were “new or used, packaged or loosely strewn,
clean or contaminated.” Id. at 537 (emphasis in original).
However, we also concluded that, even if it was reasonable
to infer that the defendant was a drug user based on the
discovery of the syringes, “evidence of a person’s past or even
routine drug use, without additional evidence, does not give
rise to the reasonable inference that the person currently
possesses drugs.” Id. at 538. Accordingly, we concluded that
the officer’s suspicion of current drug possession was not
objectively reasonable, and, therefore, the officer unlawfully
seized the defendant. Id.
          In this case, the officer must meet the more demanding standard of probable cause. See State v. Daniels, 

, 

, rev den, 

 (2010)
(“ ‘Probable cause’ is a more rigorous standard than mere
suspicion; even a well-warranted suspicion does not suffice,
because ‘a suspicion, no matter how well founded, does not
rise to the level of probable cause.’ ” (Quoting State v. Verdine,

, 

 (1981).)).
         The state notes that, in this case, Bartness testified that the pipes were unique to methamphetamine use,
and that he described the pipes in detail—including that
they were unused. But, as in Oller, even if we assume that
it was reasonable to infer that the defendant was a current methamphetamine user based on the discovery of the
unused methamphetamine pipes, “evidence of a person’s
past or even routine drug use, without additional evidence,
does not give rise to the reasonable inference that the person currently possesses drugs.” Oller, 

;
cf. State v. Holcomb, 

, 

, adh’d
to as modified on recons, 

, 

 (2005)
(stating that no Oregon cases have endorsed the proposition
that “a person’s recent drug use is sufficient, without more, to
establish reasonable suspicion of present drug possession[,]”
and declining to do so because adopting the state’s position would “effectively sanction nonparticularized, statusbased stops of habitual drug users”). Additionally, Bartness
acknowledged that the unused pipes were lawful to possess
346                                     State v. Sunderman

and that the methamphetamine pipes are sold at stores in
town. See State v. Lane, 

, 

, rev den, 

 (1995) (concluding that the defendant’s possession of a marijuana pipe with residue and a
scale, for which a person could not be arrested, along with
the defendant’s nervousness and agitation, did not provide
the officer with probable cause to believe that the defendant
was in possession of an arrestable amount of marijuana or
some other controlled substance).
         The mere possibility that defendant had methamphetamine in her car is not enough to satisfy the more
demanding standard of probable cause. In the absence of
any specific and reliable information suggesting that defendant had recently been using methamphetamine in her car,
or that defendant had recently been involved in any other
sort of ongoing drug crime, like the distribution of methamphetamine out of her car, the circumstances here do not
establish probable cause to believe that evidence of methamphetamine would be found in her car. Cf. State v. Rudnitskyy,

, 

 (2014), rev den, 

(2015) (concluding that the defendant’s furtive gesture with
a plastic straw that the officer knew was commonly used
to smoke heroin when the officer approached defendant’s
car, combined with an informant’s report that a drug transaction had occurred between people in the defendant’s car
and those in a second car moments before, and the officer’s
knowledge that the parking lot in which the car was located
was a common location for the distribution of heroin, constituted specific and articulable facts that supported a reasonable suspicion that the defendant was engaged in illegal
drug activity).
         To the extent that the state advances an argument
that the “something more” required for probable cause may
be met by combining Bartness’s training and experience
with his observation of the unused methamphetamine pipes,
we rejected a similar argument in Schmitz applying the less
stringent standard of reasonable suspicion.
         In Schmitz, the “only specific and articulable fact
directly related to defendant [wa]s that he appeared intoxicated based on his jerky movements, head shaking, body
Cite as 

 (2020)                             347

vibrations, and mumbling.” 299 Or App at 177. The officer
“testified as to his extensive training and experience, including to his knowledge that drug users often retain implements
of drug use that are likely to contain trace amounts of the
drug.” Id. at 178. We rejected the state’s “argument that the
‘something more’ required for reasonable suspicion may be
met by combining an officer’s training and experience with
observations of intoxication,” and concluded that the state
failed to prove that the officer had reasonable suspicion of
current drug possession. Id. We explained that “[a]n officer’s
training and experience may help an officer interpret specific and articulable fact in a given situation or event, but
training and experience is not, in and of itself, a specific
and articulable fact that can provide the ‘something more’ to
establish reasonable suspicion of current drug possession.”
Id.
         Here, Bartness testified to his extensive training
and experience, including his knowledge that the pipes were
used for methamphetamine and that, when he had discovered methamphetamine pipes in the past, it was more likely
than not that he would also find methamphetamine associated with those pipes. More specifically, on one other occasion in his six-year career, he had found methamphetamine
in a vehicle that was associated with an unused methamphetamine pipe. Accordingly, based on his training and
experience and the discovery of the unused methamphetamine pipes, Bartness believed that it was more likely than
not that he would discover methamphetamine in defendant’s
car.
         But Bartness’s testimony that people who possess
methamphetamine pipes are likely to also possess methamphetamine is not particularized to defendant or her car and
does not—by itself—constitute a specific and articulable fact
on which probable cause can be based. Although Bartness’s
training and experience provided him with the knowledge
to identify the pipes as unused methamphetamine pipes, the
only specific and articulable fact particularized to defendant
or her car permitting Bartness to infer current possession
of methamphetamine was defendant’s possession of the two
unused methamphetamine pipes—which, as noted, merely
348                                                 State v. Sunderman

suggested that defendant might be a current drug user. Guided
by Schmitz, we conclude that that is not enough to meet the
more demanding standard of probable cause, because, without
“something more,” Bartess’s testimony did not provide enough
facts about defendant or her car that, combined with his training and experience, would lead a reasonable person to believe
that evidence of current drug possession would probably be
found in defendant’s car. Id. at 177-78.
        Under these circumstances, we reject the state’s
argument that the “something more” required for probable
cause may be met by simply combining Bartness’s training
and experience with his observation of the unused methamphetamine pipes. See State v. Daniels, 

,

, rev den, 

 (2010) (“The phrase ‘training and experience,’ in other words, is not a magical incantation with the power to imbue speculation, stereotype, or
pseudoscience with an impenetrable armor of veracity.”).
         We do not doubt that, under the totality of the circumstances, Bartness suspected that defendant had methamphetamine in her car; “but a suspicion, no matter how
well founded, does not rise to the level of probable cause.”
Verdine, 

. In other words, the facts on which
Bartness relied “would [not] lead a reasonable person to
believe” that methamphetamine would “probably” be found
in defendant’s car. Foster, 

 (internal quotation marks omitted). Accordingly, we conclude that the trial
court erred when it denied defendant’s motion to suppress in
case number 15CR50447.6
                         III.    CONCLUSION
        The trial court erred when it denied defendant’s
motion to suppress in case number 15CR44342. The trial
court also erred when it denied defendant’s motion to suppress in case number 15CR50447. Accordingly, we reverse
and remand both cases.
       Case No. 15CR44342 reversed and remanded; Case
No. 15CR50447 reversed and remanded.
    6
      The state did not raise an argument that defendant’s incriminating statements were not subject to suppression because the statements were sufficiently
attenuated from the unlawful discovery of the methamphetamine.