State v. Taylor

                                        61

         Argued and submitted September 24, reversed and remanded
                            December 16, 2020


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                     JENNIFER JEAN TAYLOR,
                        Defendant-Appellant.
                      Lane County Circuit Court
                        18CR35986; A169343
                                    

    Defendant appeals from a judgment of conviction for felon in possession of a
firearm, ORS 166.270(1). She assigns error to the trial court’s denial of her motion
to suppress evidence obtained during a traffic stop after the officer diverted from
his traffic-infraction investigation to investigate whether defendant possessed
controlled substances. Specifically, defendant argues that the officer’s extension
of the stop and shift to a drug investigation violated Article I, section 9, of the
Oregon Constitution because that investigation was not supported by reasonable suspicion of drug activity. The trial court listed four facts in support of its
conclusion that the officer had an objectively reasonable suspicion that defendant
was committing the crime of drug possession: (1) defendant was carrying a roll of
cash; (2) defendant was staying at and had just left a motel associated with drug
activity; (3) defendant was extremely nervous; and (4) the stop occurred at midnight. Held: The trial court erred in denying defendant’s suppression motion. The
facts that the officer articulated were insufficient individually and collectively to
establish reasonable suspicion of drug activity.
    Reversed and remanded.



   Maurice K. Merten, Judge.
   Kali Montague, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Daniel Norris, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
   Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   SHORR, J.
   Reversed and remanded.
62                                              State v. Taylor

         SHORR, J.
         Defendant appeals from a judgment of conviction
for felon in possession of a firearm (FIP), ORS 166.270(1).
She assigns error to the trial court’s denial of her motion
to suppress evidence obtained during a traffic stop after
an officer diverted from his traffic-infraction investigation
to investigate whether defendant possessed controlled substances. Specifically, she argues that the officer’s extension of the stop and shift to a drug investigation violated
Article I, section 9, of the Oregon Constitution because that
investigation was not supported by reasonable suspicion of
drug activity. We conclude that the court erred in denying
defendant’s suppression motion. Accordingly, we reverse and
remand.
         We review the trial court’s ruling denying defendant’s motion to suppress for legal error. State v. Maciel-Figueroa, 

, 

 (2017). We are
bound by the court’s explicit and implicit factual findings
if there is constitutionally sufficient evidence in the record
to support them. 

 We summarize the facts in accordance
with those standards.
          On May 18, 2018, at around midnight, Officer Bazer
was patrolling the Gateway area of Springfield. Bazer testified that, at that time of night, many businesses in the area
were closed and that the area was “known for high drug
activity.” He noticed a four-door silver Mercedes pass him in
the opposite direction and saw the car’s brake lights come
on as it approached a green light, which Bazer believed was
“odd behavior.” About 10 minutes earlier, a call had come in
over the radio that a four-door silver Mercedes was wanted in
connection with a shooting. For those reasons, Bazer “turned
around and followed the vehicle,” but did not turn on his overhead lights. After following the Mercedes for “[a] few blocks,”
the Mercedes came to a stop at a red traffic light but “stopped
past the white line for the crosswalk” with its front tires “just
past the white line.” Bazer testified that he initiated a traffic
stop because he believed he had “[probable cause] to stop the
vehicle for failure to obey [a] traffic control device.”
        Bazer approached the driver, defendant, and asked
her for her license, registration, and proof of insurance.
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Bazer noticed that defendant’s hands were shaking as
she handed over her identification card and took this as a
sign that she was nervous. Bazer testified that her level of
nervousness was “more pronounced than what I regularly
see on a normal traffic stop.” Bazer characterized this as
a possible “red flag,” and testified that “it’s not uncommon
for people to be nervous with law enforcement, but in this
case, it seemed like maybe it was a little bit more than just
the nervousness of getting a ticket or something.” Bazer testified that, as defendant handed him her identification, he
“noticed what appeared to be a large amount of US currency
… rolled up in … a center pocket” of her wallet. When
asked what he believed the significance of that was, Bazer
testified that
       “[i]t, it, all it means is it may be, I mean, who knows.
   Maybe she sold a car or something. But at the same time,
   it could be used for selling or being used to buy drugs. …
   [I]t’s frequently, you know, cash can be used for that and,
   and it’s frequently used in smaller bills.”
Bazer did not see the denominations of the bills, and did not
provide any further description of the roll. When asked why
drug sales were usually conducted in cash, Bazer answered
that “[i]t’s usually what everyone has. It’s easy to get ahold
of.”
        Next, Bazer noted that the passenger “seemed
extremely tired. Droopy eyes. His movements were slow.”
Bazer interpreted these as “signs of impairment” and noted
that he did not smell any alcohol. Bazer testified that his
“contact with [the passenger] was fairly brief.”
         Defendant told Bazer that she had been given the
car “last Christmas” and that she “hadn’t registered it in
her name yet” but that she “had paperwork from the owner.”
Bazer testified that it was “odd” for someone to “have a car
for that long without registering it,” and said that he had
“had people tell me that they’ve loaned their cars out for
people that will move substance for them. Substance being
illegal narcotic.” Defendant told Bazer that she was “staying
at the Crosslands and she was driving [the passenger] home
from visiting with her.” The Crosslands was a motel a “few
blocks” away that Bazer testified had “cheaper rooms” and
64                                                            State v. Taylor

was an area of “frequent drug activity.” Specifically, Bazer
testified that the Crosslands Motel was one of two motels in
the area that he knew to be “used a lot [by drug] dealers to
deliver out of.” Still, Bazer acknowledged that a person could
be innocently “just staying at the hotel.” Subsequently, Bazer
returned to his vehicle. In total, Bazer’s interaction with
defendant at her car took approximately four or five minutes.
         Bazer ran defendant’s name and did not discover any
warrants. At that point in time, however, Bazer suspected
that defendant was in possession of narcotics. That suspicion
was based on the time of night, defendant’s nervousness, the
cash in her purse, the passenger’s possibly intoxicated condition, defendant’s association with the Crosslands Motel,
and her story about the unregistered vehicle. Bazer then
called Officer Sorby, the officer who worked with the department’s drug detection dog, and requested that he report to
the scene. Bazer testified that he believed he was conducting a drug investigation at this point. Sorby also testified
that he assumed he was being summoned for a drug investigation, even though he had not been told that specifically.
         After summoning Sorby, Bazer returned to defendant’s car, where defendant was still searching for vehicle
paperwork. Bazer “started explaining to her all the things
[he] was seeing. You know, with the money, the time of night.
You know, where she was coming from. The location she was
in.” Bazer asked defendant what she had in the vehicle. Sorby
arrived at the scene during that conversation and walked
around the car to stand by Bazer. While the two did not speak,
Sorby assumed from the circumstances that a drug investigation was underway. Sorby asked defendant if there was anything illegal in the car, and “informed her that he was most
likely going to be getting his drug detection dog out and walking it around the car.” Sorby told defendant, “[i]f there’s anything you want to tell me about now, let me know.” Defendant
then reported that she had a “dirty needle” in her purse. The
officers searched defendant’s car and discovered heroin and
meth residue as well as a handgun.1 Because defendant had a
previous felony conviction, she was charged with FIP.

     1
         The state did not charge defendant with any drug crimes.
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         Before trial, defendant moved to suppress “the seizure of a controlled substance, paraphernalia, and a handgun and any and all derivative evidence, including any and
all oral derivative evidence.” Defendant argued that Bazer
did not have reasonable suspicion that defendant possessed
a controlled substance to extend the stop beyond its initial
focus on the traffic infraction. The state argued that Bazer
had reasonable suspicion for the extension of the stop, and
that six specific facts supported that conclusion: defendant’s
extreme nervousness; the large amount of cash she was carrying; her sleepy and possibly intoxicated passenger; defendant’s lack of registration and odd explanation for the lack
of registration; the fact that defendant was staying at the
Crosslands Motel and reported that she had just left there;
and the late hour of night. Bazer and Sorby both testified at
the hearing on the motion.
         The trial court concluded that the stop was extended
when Bazer began confronting defendant with his observations and questioning her about possible drug possession.2
The court assigned little value to the intoxicated passenger
and the missing registration but concluded that the remaining four factors, “[i]n totality,” established objectively reasonable suspicion of drug activity. After a stipulated facts
trial, the court convicted defendant of FIP. This timely
appeal followed.
        On appeal, defendant renews her contention that
Bazer unlawfully extended the traffic stop without reasonable suspicion of drug possession, asserting that the trial
court erred in denying her motion to suppress. The state
argues that the court correctly denied defendant’s motion
because Bazer’s drug investigation was supported by reasonable suspicion. For the reasons that follow, we conclude that
the court erred in denying defendant’s motion to suppress.

    2
      Defendant argues that the trial court erred in finding that the stop was
extended into a drug investigation when Bazer began questioning defendant
about drug possession. Defendant instead argues that the stop was extended
moments earlier, when Bazer requested Sorby as backup. We need not decide
which moment marked the stop’s extension because the difference is of no consequence to the result; as defendant acknowledges in her opening brief, no new
facts could have informed Bazer’s reasonable suspicion analysis at the later
point.
66                                              State v. Taylor

          Article I, section 9, prohibits “unreasonable” searches
and seizures. A “stop” is a type of seizure that amounts to
a “temporary detention” conducted “for investigatory purposes.” Maciel-Figueroa, 

. When an officer has lawfully stopped a person for a noncriminal traffic infraction, the officer is limited to those “investigatory
inquiries that are reasonably related to the purpose of the
traffic stop or that have an independent constitutional justification.” State v. Arreola-Botello, 

, 

 (2019). As noted, the state contends that the constitutional justification for Bazer’s unrelated criminal investigation here was that Bazer had reasonable suspicion that
defendant possessed controlled substances. Reasonable suspicion exists when an officer subjectively believes that a person has committed or is about to commit a specific crime
or type of crime, and that belief is objectively reasonable in
light of the totality of the circumstances existing at the time
of the stop. Maciel-Figueroa, 

.

         Reasonable suspicion must be based on specific and
articulable facts. State v. Oller, 

, 

 (2016), rev den, 

 (2017). An officer can
draw on his or her training and experience to make reasonable inferences under the circumstances, but “training and
experience alone are not an adequate substitute for objectively observable facts.” 

 However, “reasonable suspicion
is a relatively low barrier.” State v. Jones, 

, 

 (2011), rev den, 

 (2014) (internal
quotation marks omitted). It is a “less demanding standard
than probable cause.” State v. Brown, 

,

, rev den, 

 (2019). “Reasonable suspicion does not require that the facts as observed by the officer
conclusively indicate illegal activity but, rather, only that
those facts support the reasonable inference of illegal activity by that person.” State v. Dampier, 

,

 (2011) (internal quotation marks omitted).

        Although the trial court made no express factual
findings on the issue, we presume the court implicitly found
the subjective component of the reasonable suspicion standard had been met here—that Bazer believed defendant
was committing the crime of illegal drug possession. The
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issue, then, is whether Bazer’s suspicion was objectively
reasonable.

         To reiterate, the facts that the state argue support
the trial court’s conclusion that the officer had an objectively
reasonable suspicion that defendant was committing the
crime of drug possession are: (1) the large, albeit unspecified, amount of cash defendant was carrying; (2) the fact that
defendant was staying at and had just left the Crosslands
Motel, a place associated with drug activity; (3) defendant’s
shaky hands and nervousness; and (4) the time of night of
the stop (midnight). The state argues that, when viewed as
a whole, Bazer’s observations established reasonable suspicion that defendant possessed some sort of controlled substance. We consider each circumstance individually in the
order listed above, before evaluating the weight of all the
circumstances together.

         First, we conclude that the “large amount of US currency” rolled up in defendant’s wallet does not provide much
support for Bazer’s suspicion that defendant possessed controlled substances. While crediting Bazer’s testimony that
cash is frequently used for the sale and purchase of illegal
drugs, that alone is insufficient to make defendant’s possession of cash indicative of drug possession. Although Bazer
testified that, in his experience, “smaller bills” specifically
were used in the drug trade, he was not able to say whether
defendant carried the precise type of cash he found to be
common to the drug trade. Additionally, carrying United
States currency is simply too general of a practice to support reasonable suspicion of a drug crime on its own. Indeed,
Bazer testified that cash is used in the drug trade because
everyone has it. We decline to assign suspicion to possession
of something as common as cash, especially when we have
no idea how much cash defendant possessed, the denomination of the bills, or any other details which could help
characterize the cash in this case as suspicious. See State v.
Kennedy, 

, 

 (1980), rev’d on
other grounds, 

, 

 (1981) (concluding
facts that the defendant paid for his airline ticket with cash
and had a “large amount” of cash on him did not support
reasonable suspicion that he was a drug smuggler because
68                                                         State v. Taylor

“[i]t is still legal to pay with cash rather than by credit card,
and we have no idea how much money a ‘large amount’ is”).3
While we do not rule out the possibility that possessing a
large quantity of cash could lead to reasonable suspicion
of criminal activity on some other record, on this record,
defendant’s unspecified roll of cash contributes little, if any,
weight to the reasonable suspicion analysis.
         Second, the fact that defendant was staying at, and
had just left, the Crosslands Motel adds little to the reasonable suspicion analysis, because there is nothing inherently suspicious, without more evidence, about a defendant
staying at a public motel where drugs have been sold. “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.” State v. Bertsch, 

, 

 (2012); see also, e.g., State v.
Martin, 

, 

 (2014) (concluding that there is “nothing inherently suspicious” about being
in a “high-vice area”); State v. Zumbrum, 

, 

 (2008) (fact that the defendant was
staying at an apartment building known for drug activity,
located in a high-crime neighborhood, did not support reasonable suspicion); State v. Rutledge, 

,

 (2011) (no reasonable suspicion of narcotics
when the defendant “had just left a motel that the police
believed was involved in drug activity, was in a car with
a person suspected of drug activity, and acted nervously
when asked about her purse”). The limited cases in which
a defendant’s association with a high-crime area has been
given weight are distinguishable. Mainly, those cases presented us with some sort of additional evidence that, when
    3
      Although we do not rely on it for our analysis, defendant made an important point during oral argument that is worth noting. There, defendant offered
the additional context that use of cash is more common among individuals
living in poverty. Indeed, a majority of unbanked households report that they
pay bills using cash and “[d]o not have enough money to keep in an account.”
Federal Deposit Insurance Corporation, 2017 FDIC National Survey of Unbanked
and Underbanked Households Executive Summary 4, 12 (2017), available at
https://www.fdic.gov/householdsurvey/2017/2017execsumm.pdf. While we do not
speculate as to defendant’s use of cash or banking status, we acknowledge that
the state’s characterization of possession of a large amount of cash as unusual
and suspicious can be problematic considering these realities.
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viewed in the totality of the circumstances, indicated the
defendant’s presence at the location was associated with
suspected drug activity. See, e.g., State v. Barber, 

, 

 (2016) (reasonable suspicion existed
where the defendant made a short visit to an apartment
that was under surveillance for drug activity, engaged in
“possible drug activity” in his car before leaving the apartment, and exhibited suspicious behavior when pulled over).
Here, defendant was not observed making a quick stop at
the motel consistent with a drug sale or purchase. She was
not seen engaged in a suspicious handoff. Instead, the evidence established only that defendant was staying at the
motel, a fact which is not inherently suspicious, especially
in light of Bazer’s testimony that legitimate customers also
stayed there.
         Third, defendant’s nervousness contributes little if
anything to this reasonable suspicion analysis, because that
nervousness is not linked to facts that indicate that defendant was nervous as a result of her involvement in criminal
drug activity. Here, we find two of our previous decisions
helpful—one in which the defendant’s nervousness did carry
weight, and in which there was objectively reasonable suspicion of drug possession. In the other case, we drew the opposite conclusion. In State v. Huffman, 

,

 (2015), rev den, 

 (2016), we concluded
that the officer had objectively reasonable suspicion to
believe that the defendant possessed a controlled substance.
The officer was on patrol in a “high drug-activity area” when
he pulled the defendant over for traffic violations. Id. at 309.
After pulling over, the defendant immediately left his car
and began walking towards the patrol car. Id. The officer
found that to be suspicious, and believed, based on his training and experience, that it indicated that the defendant
could be “trying to hide something by diverting attention
away from the car or attempting to flee.” Id. Once the officer
directed the defendant back to his car, the defendant was
very nervous, visibly shaking, and did not make eye contact.
Id. at 310. Throughout the stop, the defendant was “fidgety”
and made “furtive movements with his hands towards the
front pocket of his sweatshirt.” Id. The officer subsequently
learned that the defendant was on probation for possession
70                                             State v. Taylor

of heroin. Id. Based on the above, the officer asked the defendant for consent to search the car. Id.
         Although we acknowledged that generally, “nervousness alone is entitled to little weight when evaluating
reasonable suspicion,” we concluded that the defendant’s
nervousness contributed to reasonable suspicion. Id. at 314.
We considered the defendant’s nervousness in the context
of his unusual exit from his car, and the officer’s experience
that individuals do not leave their vehicles during traffic
stops unless they are about to flee or are trying to divert
attention from the car. Id. “[D]efendant’s distracting conduct
in leaving the car provided [the officer] with an indication
of why [the defendant] might be nervous—that he was trying to hide something.” Id. (emphasis in original). Further,
the other facts known to the officer (the “high drug-activity
area,” the defendant’s furtive movements toward his pocket,
and the defendant’s probation for heroin) implied that the
“something” the defendant was trying to hide was illegal
drugs specifically. Id. at 315. Considering the totality of
those circumstances, the defendant’s nervousness was entitled to be given more weight than it would normally carry
because it was linked to other facts that supported reasonable suspicion of drug possession. Id.
         We reached the opposite conclusion in State v. Decker,

, 

 (2018). There, the defendant
was pulled over for a traffic violation. 

. When the
officer activated his overhead lights, the defendant “slowed
down to 10 to 15 miles an hour.” 

 The officer noticed the
driver’s head move towards the center of the vehicle multiple times while the vehicle continued, ultimately travelling for 29 seconds at a very low speed before it stopped. 

Upon approaching, the officer observed that the defendant
was nervous, “would only glance at” him, and “kept looking
towards the center console, down at his feet.” 

. The
defendant told the officer “that he was traveling between
two points that ‘were on the other side of town completely’
from where the stop occurred.” 

 He also reported that the
vehicle belonged to his girlfriend, who the officer knew to be
“involved in controlled substances.” 

 Based on the above,
the officer suspected that the defendant possessed drugs or
weapons. 

.
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          We ultimately concluded in Decker that the officer
did not have reasonable suspicion that the defendant possessed drugs. Although the officer’s observations may have
led him to think that the defendant “was trying to hide
something,” there was not an adequate factual basis for the
officer to suspect he was trying to hide illegal drug activity
specifically. Id. at 331 (emphasis in original). The only fact
that arguably raised an inference that the defendant was
nervous about drugs was the fact that the defendant was
driving a car that belonged to a person involved in controlled
substances. Id. at 332. That fact alone was not sufficient to
link the defendant’s suspicious behavior to reasonable suspicion of drug possession specifically. Id.
          This case is more like Decker than Huffman,
because there are insufficient facts to indicate that defendant was nervous because she possessed drugs. The only
facts that arguably implied that the “something” defendant
was nervous about was controlled substances were that
(1) she had a large roll of cash (which the officer knew was
the most common payment method in illegal drug sales) and
(2) she was staying at and had just left the Crosslands Motel,
a place known for drug activity. First, as we explained above,
neither of those facts are particularly suspicious or raise a
strong inference that defendant possessed drugs. Second,
nothing linked defendant’s nerves to her roll of cash, her
association with the Crosslands Motel, or any other fact
indicative of drug possession. Here, Bazer never linked
defendant’s nervousness to anything in particular. Without
a link between defendant’s nervousness and any fact supporting objectively reasonable suspicion of drug possession,
nervousness, even extreme nervousness, is relatively meaningless to our reasonable suspicion analysis. See, e.g., State
v. Reich, 

, 

 (2017) (“We have
repeatedly stated that nervous behavior adds little to the
reasonable suspicion inquiry.”); State v. Espinoza-Barragan,

, 

 (2012) (“[N]ervousness
during a traffic stop contributes little, if any, weight toward
reasonable suspicion that the driver is engaged in criminal
activity.”); State v. Kentopp, 

, 

 (2012) (the fact that the defendant’s nervous demeanor
was not tied to anything in particular, and could be ascribed
72                                              State v. Taylor

to “any number of things,” rendered it of little value in the
reasonable suspicion analysis). Thus, we give little weight to
defendant’s nervousness here.

         Finally, the fact that this traffic stop occurred at
midnight does not support a finding of reasonable suspicion, particularly in light of defendant’s plausible, innocent
explanation that she was giving her passenger a ride home
after visiting her. Obviously, people travel at midnight for
legitimate reasons unrelated to criminal activity generally
or drug possession specifically. And, unlike in other cases,
nothing about defendant’s travelling at midnight was linked
with other facts that would make the time of night indicative
of a specific criminal activity. Cf. State v. Wiseman, 

, 

 (2011) (officer had reasonable
suspicion of theft to stop a truck when a neighbor observed
the occupants of the truck loading a bike into the truck’s bed
at 1:50 a.m. in a high-crime area and the occupants made
furtive movements when the patrol car passed them).

         We are mindful that, in considering whether articulated facts are sufficient to establish objectively reasonable suspicion, we must view those facts in their totality
and not individually. Here, however, each of the articulated
facts—that defendant was carrying a roll of cash, that she
was staying at and had just left the Crosslands Motel, that
she exhibited out-of-proportion nervousness, and that it
was midnight—are not facts that inherently raise suspicion
of criminal activity whether viewed individually or collectively. Most of those facts fail to tell us why this defendant in
particular is suspected of possessing drugs at the relevant
time, rather than pointing the finger at anyone who carries
cash, stays at a public motel where criminal activity also
occurs, and drives their car at night. See State v. Bates, 

, 

 (1987) (“Neither the hour nor the
‘high crime’ nature of the area tells us whether this defendant is likely to be a criminal, unless there is some reason to
think that everyone driving in that particular area at that
time of night is up to no good (or is a policeman).” (Emphasis
in original.)). We do not permit police to stop and investigate
citizens for specific crimes just because the situation seems
odd, or because the officer believes the individual is up to
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something. The facts in this case are certainly not enough
to establish reasonable suspicion of drug possession specifically, without more. And Bazer’s training and experience
of drug activity in that area cannot take the place of articulable facts to provide that “something more” in this case.
Although an officer may consider facts in light of his training and experience, that experience cannot itself supply the
facts. State v. Schmitz, 

, 178, 

(2019). Considering the totality of the circumstances known
to Bazer at the time he began investigating defendant for
drug possession, we conclude that Bazer did not have reasonable suspicion that defendant was engaged in the crime
of possessing controlled substances.
         Finally, we consider the issue of harmlessness. “We
must affirm a judgment, despite any error committed at trial,
if we determine that there is little likelihood that the particular error affected the verdict.” State v. Strasser, 

, 

 (2020) (internal quotation marks and
citation omitted). Here, the officer’s drug investigation led
to the discovery of a handgun, which defendant admitted
belonged to her. That was the only evidence presented that
defendant possessed a firearm, and it subsequently led to
her conviction for the crime of FIP. The evidence that defendant sought to suppress was essential to her conviction, and
the error in denying the suppression motion was, therefore,
not harmless.
         Accordingly, we reverse and remand this case to the
trial court for further proceedings.
        Reversed and remanded.