537
Submitted April 2, vacated and remanded May 19, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
GARY DANIEL SHAW,
Defendant-Appellant.
Lane County Circuit Court
19CR23141; A172537
489 P3d 147
Defendant appeals a judgment of conviction for possession of methamphetamine and felon in possession of a firearm based on methamphetamine and
guns discovered by deputies who initially entered defendant’s home with his consent and then saw a methamphetamine pipe on the coffee table in front of him.
Defendant revoked his consent after the deputies asked about the pipe, but they
arrested him for possession of methamphetamine, observed baggies of methamphetamine, and found firearms that defendant was not allowed to possess. On
appeal, defendant argues that the trial court erred in denying his motion to suppress evidence of the methamphetamine baggies and guns, because the deputies
lacked probable cause to arrest him based on their observation of the pipe and
had no right to be in his home once he revoked his consent to their entry. Held: In
light of State v. Sunderman, 304 Or App 329,
467 P3d 52 (2020), decided after the
court’s ruling in this case, the court erred in concluding that the methamphetamine pipe, by its nature, created probable cause to arrest for possession of methamphetamine. The trial court did not have the benefit of Sunderman and did not
address an underlying factual dispute as to whether one of the deputies initially
saw residue in the pipe or only later discovered it upon further inspection after
defendant’s arrest, so the proper disposition was a remand for the trial court to
engage in the necessary factfinding and reconsider its ruling.
Vacated and remanded.
Karrie K. McIntyre, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
538 State v. Shaw
JAMES, J.
Vacated and remanded.
Cite as 311 Or App 537 (2021) 539
JAMES, J.
Defendant appeals a judgment of conviction for possession of methamphetamine, ORS 475.894, and felon in
possession of a firearm, ORS 166.270. The charges were
based on methamphetamine and guns discovered by deputies who initially entered defendant’s home with his consent and then saw a methamphetamine pipe on the coffee
table in front of him. Defendant revoked his consent after
the deputies asked about the pipe, but they arrested him for
possession of methamphetamine, observed baggies of methamphetamine, and found firearms that defendant was not
allowed to possess.
On appeal, defendant argues that the trial court
erred in denying his motion to suppress evidence of the
methamphetamine baggies and guns, because the deputies
lacked probable cause to arrest him based on their observation of the pipe and had no right to be in his home once
he revoked his consent to their entry. At the suppression
hearing, there were factual disputes as to what the deputies
saw and when, including whether (and in what amount) one
of the deputies, Smith, saw methamphetamine residue in
the pipe before arresting defendant. Smith had responded
affirmatively on direct examination when asked, “When you
first observed it, did you observe residue in the pipe?” He
had also testified that “when I first looked at the pipe you
can see that it’s burnt, and that the residue goes down the
shaft of the pipe, and then tapers off to white. That indicates
to me that there’s quite a bit of residue buildup because of
the way that it recrystallizes when it goes from smoke form
and is being inhaled.”
Defense counsel, however, pointed to other testimony about the sequence of events and the layout of the
room to argue that the officers, including Smith, had not
closely inspected the pipe until after they had already
arrested defendant. He further argued that the evidence at
the hearing reflected that the deputies were “five to ten feet
away from the pipe at night”—facts that could undermine
Smith’s testimony that he was able to see residue in the pipe
before defendant had revoked his consent.
540 State v. Shaw
The trial court did not resolve the parties’ factual
dispute over whether Smith had observed residue in the pipe
before defendant had revoked his consent and was arrested.
Rather, the court ruled that Smith “immediately identified
a meth pipe, which he knows from his training and experience to be a meth pipe that is unique, specific and specially
designed exclusively for ingesting methamphetamine,” and
that the incriminating nature of the pipe itself provided
probable cause for the arrest.
The state concedes that, in light of State v.
Sunderman, 304 Or App 329,
467 P3d 52 (2020), which was
decided after the trial court ruled in this case, the trial
court’s rationale was erroneous, and that a methamphetamine pipe alone does not create probable cause to arrest for
possession of methamphetamine. We agree with and accept
that concession. In Sunderman, we held that a defendant’s
possession of unused methamphetamine pipes was insufficient, by itself, to support probable cause for possession of
methamphetamine.
Id. at 344. And, in reaching that conclusion, we rejected the state’s argument that it could bridge
the gap between an unused pipe and possession with an officer’s testimony that people who possess methamphetamine
pipes are likely to also possess methamphetamine. That
testimony, we explained, “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.”
Id. at 347.
Here, in the absence of a factual finding that Smith
actually saw residue in the pipes before arresting defendant, the circumstances are materially indistinguishable
from Sunderman. Smith testified at length about his training and experience regarding methamphetamine pipes and
residue, including how methamphetamine settles to the
bottom of the bowl, forming “oftentimes a fairly thick layer
of methamphetamine that you can obtain and test, and it’s
actually something that most methamphetamine users will
scrape out and smoke at a later date when they’re hard up
for fresh meth.” He further testified that “there is usable
quantities—sometimes a gram or two of methamphetamine
that’s recrystallized inside the pipe. It’s testable, it’s weighable, it’s usable; sometimes more than one use worth of
Cite as 311 Or App 537 (2021) 541
methamphetamine in the pipe.” And he testified that “this
clearly had a significant amount of burned residue inside.
So it was more likely than not at that point that this was a
methamphetamine pipe. In fact, no doubt in my mind that it
was methamphetamine pipe, and that there was going to be
[a] chargeable amount inside that pipe.” (Emphasis added.)
Although Smith’s training and experience bears on
what he could expect to find in a used methamphetamine
pipe containing residue, it cannot supply the predicate fact
of use, and the trial court did not make a finding on that
predicate fact. Therefore, as was the case in Sunderman,
Smith’s training and experience with methamphetamine
pipes and residue cannot bridge the gap to probable cause
for possession of methamphetamine. Id. at 348 (“[W]e reject
the state’s argument that the ‘something more’ required for
probable cause may be met by simply combining [the officer’s] training and experience with his observation of the
unused methamphetamine pipes.”).
The remaining question is the appropriate disposition. The state argues that we should remand the case to the
trial court to resolve the factual dispute over whether Smith
saw methamphetamine residue before defendant revoked
his consent and was arrested. We agree. The trial court
decided this case without the benefit of Sunderman and did
not address the parties’ dispute over whether Smith initially
saw the residue in the pipe or only later discovered it upon
further inspection after defendant’s arrest. We therefore
remand for the trial court to engage in the necessary factfinding and to reconsider its ruling in light of Sunderman.
See, e.g., State v. Kamph, 297 Or App 687, 698,
442 P3d 1129
(2019) (vacating and remanding for the trial court to address
the applicable standard and “for any additional factfinding
that may be necessary”).1
Vacated and remanded.
1
We note that, since the judgment was entered against defendant, ORS
475.894 has been amended by voter initiative (Ballot Measure 110, § 17 (2020)).
