348
Submitted November 24, 2020, reversed and remanded July 14, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
RONALD CHARLES CANEPA, JR.,
Defendant-Appellant.
Josephine County Circuit Court
19CR07210; A171064
497 P3d 319
Defendant was on transitional leave from the Department of Corrections
(DOC) when he was stopped for a traffic violation. During that stop, the investigating officer called defendant’s “supervising officer” to ask if there was anything
that he should be concerned about. The supervising officer knew that defendant
had a history of drug possession, had recently admitted to using methamphetamine, and had recently associated with a person known to be involved in criminal activity. As a result of the officers’ conversation, the investigating officer
asked for defendant’s consent to search his car. Defendant consented to the
search and the investigating officer found methamphetamine. Defendant moved
to suppress that evidence, arguing that the investigating officer lacked “reasonable grounds” to request his consent to search. The trial court denied defendant’s
motion and he subsequently entered a guilty plea for possession of methamphetamine, ORS 475.894(2)(b). On appeal, defendant assigns error to the denial of his
motion to suppress. Held: The trial court erred in denying defendant’s motion to
suppress. The facts articulated by defendant’s supervising officer did not create
“reasonable grounds” to suspect that defendant possessed drugs on his person or
in his car during the traffic stop.
Reversed and remanded.
Robert S. Bain, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
MOONEY, J.
Reversed and remanded.
Cite as 313 Or App 348 (2021) 349
MOONEY, J.
Defendant was on transitional leave from the
Department of Corrections (DOC) when he was pulled over
for a traffic violation. During that stop, the investigating
officer called defendant’s “supervising officer” to inform him
that defendant had been stopped and to ask if there was anything that he should be concerned about. The supervising
officer mentioned that defendant might have guns, that he
had a history of drug possession, that he had recently admitted to using methamphetamine, and that he had recently
associated with a person known to be involved in criminal
activity. He suggested that the officer request defendant’s
consent to search the car. The officer did so, defendant consented, and the officer found methamphetamine. The trial
court denied defendant’s motion to suppress that evidence,
after which defendant entered a conditional guilty plea and
appealed his conviction. On appeal, he argues that the court
erred in denying his motion to suppress because his supervising officer did not have “reasonable grounds” to request
his consent to search the car. We agree with defendant and
therefore reverse the judgment.
We review denials of motions to suppress for legal
error. State v. Ehly, 317 Or 66, 75,
854 P2d 421 (1993). Here,
we must specifically review the question of whether defendant’s supervising officer had a sufficient basis for asking
defendant to consent to a search. See State v. Gulley,
324 Or
57, 63-67,
921 P2d 396 (1996) (applying standard in probation context). We are bound by the trial court’s findings of
historical fact if there is evidence in the record to support
them. Ehly,
317 Or at 75.
The relevant facts are not in dispute. Defendant
was released from the DOC in November 2018 on “short-term transitory leave,” which is a form of post-prison supervision. Defendant retained the status of “inmate.” He was
not on probation. Because defendant was not on probation,
ORS 137.540(1)(i), which governs requests to search a person who is on probation, does not apply here. However, the
parties agree that defendant’s conditional release included
a requirement that he submit to a search when his supervising officer had “reasonable grounds” to believe that a
350 State v. Canepa
violation of his release may have occurred. And, although
the state made no record of what defendant’s conditions of
release were, the parties agree that defendant would have
been in violation if he was found to be in possession of
methamphetamine.
On January 28, 2019, he met with his supervising officer and acknowledged that he had used methamphetamine two days before. On January 29, 2019, Officer
Galinski initiated a traffic stop of defendant to investigate a
potential traffic violation related to the reflectivity of defendant’s license plate. See ORS 803.535(1)(c); ORS 803.550(2).
During the stop, Galinski discovered that defendant was
driving without a license and that he was on supervised
release from the DOC.
Galinski called defendant’s supervising officer,
Scaglione, during the traffic stop to advise him of the stop.
Galinski told Scaglione that defendant was cooperative, but
he asked whether there was anything that he should be
concerned about. Scaglione responded that it was possible
that defendant was in possession of firearms, methamphetamine, or both. With regard to methamphetamine, he told
Galinski that defendant had admitted to using methamphetamine within the day or two immediately prior to the
stop. He also discussed with Galinski that defendant had
been associating with Bafunda, whom Scaglione knew to be
on short-term transitory leave from the DOC and whom he
suspected was a “potential[ ] criminal associate.”
Scaglione advised Galinski to request defendant’s
consent to search the car, but he did not specifically communicate why he believed that there were “reasonable grounds”
to do so. Importantly, Scaglione did not know—and thus
did not say—whether he thought defendant would use any
firearm in his possession for criminal purposes beyond the
unlawful possession of a firearm by a convicted felon, ORS
166.250(1)(c)(C), whether defendant was likely to have illegal drugs on his person, or whether Bafunda was actually
involved with dealing, possessing, or using drugs. Scaglione
knew that defendant had never been convicted of a person crime, and he knew that defendant’s last drug-related
Cite as 313 Or App 348 (2021) 351
conviction was in 2013, but he did not communicate that
information to Galinski.
Defendant agreed to allow Galinski to search the
car, which resulted in Galinski finding methamphetamine
in a bag. He was subsequently charged with possession of
methamphetamine. Defendant moved to suppress that evidence, arguing that Scaglione, as his supervising officer, did
not have “reasonable grounds” to seek consent to search his
car—for drugs or firearms. Scaglione was the sole witness
at the suppression hearing, and he testified about the concerns he conveyed to Galinski during their phone call, as
described above.
The state argued that defendant’s prior drug convictions, recent admitted drug use, and association with
Bafunda provided reasonable grounds to request defendant’s consent to search his car. The state also argued that
there were reasonable grounds to request defendant’s consent to search based on Scaglione’s suspicion that defendant
possessed firearms. The trial court concluded that no reasonable grounds existed to request a search for firearms.
Defendant argued that there was no evidence that
he possessed drugs on his person, in the car, or in the containers searched. Defendant correctly noted that the state
bore the burden to show that there were reasonable grounds
to search for drugs. He argued that Scaglione’s testimony
about recent drug use and defendant’s association with
Bafunda were not sufficient to establish reasonable grounds
to believe that defendant was in possession of drugs and
that there were, therefore, reasonable grounds to search for
drugs. In denying the motion to suppress, the trial court
explained that defendant’s admitted drug use, as well as
his association with a person known to be engaged in criminal activities, gave rise to reasonable grounds to request
that defendant submit to a search for methamphetamine.
Defendant entered a conditional guilty plea for possession
of methamphetamine, ORS 475.894(2)(b), after which he
appealed the judgment of conviction.
On appeal, defendant assigns error to the trial
court’s order denying the motion to suppress. As mentioned,
352 State v. Canepa
the parties correctly agree that we apply the same “reasonable grounds” standard used in probation contexts to this
early-release, post-prison type context. They also agree, for
the purposes of this appeal, that Scaglione did not have reasonable grounds to request defendant’s consent to search for
firearms. The only question, therefore, is whether Scaglione,
by proxy, had reasonable grounds to request defendant’s
consent to search his car for methamphetamine. We conclude that he did not.
Article I, section 9, of the Oregon Constitution
establishes the people’s right “to be secure in their persons,
houses, papers, and effects, against unreasonable search, or
seizure.” Article I, section 9 generally requires investigating
officers to obtain a warrant to search a person or the person’s belongings. State v. Tennant, 310 Or App 70, 75,
483
P3d 1226 (2021). One exception to the warrant requirement
is consent. State v. Dunlap,
215 Or App 46, 53,
168 P3d 295
(2007). If a probationer—or, in this case, a person on short-term transitional leave from the DOC—consents to a search
pursuant to an agreement allowing investigations officers
to conduct such a search, the state must still prove that the
request for consent was permissible.
Id. at 54. It must do so
by, among other things, demonstrating that the investigating officer had “reasonable grounds” to request consent to
search.
Id. at 48.
To have “reasonable grounds” to seek a defendant’s
consent to search, the officer must have more suspicion
than is required for “reasonable suspicion,” but less than is
required for “probable cause.” Gulley, 324 Or at 65. Like the
reasonable suspicion standard, the officer seeking consent
must possess specific and articulable facts that would lead
him or her to believe that the probationer—or inmate on
transitory leave—has committed a probation or release violation, “and that a search of the probationer’s person, residence, vehicle, or property would disclose evidence of” the
violation (or, as in this case, evidence that defendant has
violated a condition of his release).
Id. at 67. Additionally,
the officer must be able to identify the specific violation
suspected, rather than have a mere hunch that the person has engaged in generally criminal activity. See State
Cite as
313 Or App 348 (2021) 353
v. Maciel-Figueroa,
361 Or 163, 179,
389 P3d 1121 (2017)
(holding that such specificity is required when articulating
grounds for reasonable suspicion).
Because it requires an even lower quantum of proof
than the reasonable grounds standard, our case law under
the reasonable suspicion standard is instructive. An officer
cannot reasonably suspect that a defendant possesses drugs
unless the officer can articulate specific reasons as to why
the drugs suspected are in a certain location. In State v.
Davis, 286 Or App 528, 537,
400 P3d 994 (2017), the defendant showed signs of intoxication from recent drug use.
In addition to the alleged intoxication, the defendant gave
the officer “suspicious” travel plans, engaged in suspicious
movements, and was in a location associated with drug
activity.
Id. From those facts, we concluded that the investigating officer did not articulate facts sufficient to establish
reasonable suspicion of drug possession.
Id. Although we
agreed with the state that each of those facts should have
been given some weight in a reasonable suspicion analysis,
we explained that, together, they did not provide a basis to
suspect that the defendant currently possessed the drugs on
or near his person.
Id. at 538.
Here, none of the facts that Scaglione articulated,
separately or in combination, provided reasonable grounds
to request defendant’s consent to search. First, we have consistently held that evidence of a person’s current intoxication, alone, is not sufficient to support reasonable suspicion—
let alone “reasonable grounds.” See State v. Schmidtz, 299
Or App 170, 178,
448 P3d 699 (2019) (evidence of intoxication alone is not sufficient for reasonable suspicion); State
v. Miller,
267 Or App 382, 393,
340 P3d 740 (2014) (same);
State v. Farrar,
252 Or App 256, 261,
287 P3d 1124 (2012)
(same). But neither Scaglione nor Galinski even suspected
that defendant was intoxicated—just that he had admitted
to using methamphetamine two days earlier. That evidence,
by itself, does not relate to defendant’s current drug possession, and it should have been afforded even less weight than
we typically give to evidence of current intoxication.
Second, although a defendant’s criminal history
is relevant in a reasonable suspicion/reasonable grounds
354 State v. Canepa
analysis, it is afforded only “minimal” weight. State v.
Bertsch, 251 Or App 128, 135,
284 P3d 502 (2012); see also
State v. Frias,
229 Or App 60, 66,
210 P3d 914 (2009) (holding
that there was no reasonable suspicion when the defendant
was waiting to be sentenced on a drug charge, appeared to
have used drugs in the past, and was evasive in response
to questioning). Although knowledge of defendant’s convictions for possession-related crimes may have been slightly
more relevant than “minimally” in light of his admission to
using two days earlier, it was not enough to support reasonable grounds to believe that defendant currently possessed
methamphetamine.
Finally, on this record, defendant’s association with
Bafunda should have been given minimal, if any, weight.
There was no evidence presented that Bafunda had any
convictions for possessing or distributing drugs, let alone
that he had been recently involved with providing them to
(or using them with) defendant. To be sure, a defendant’s
association with someone known to be involved in criminal
activity can sometimes be a factor in reasonable suspicion
and, therefore, in a reasonable grounds analysis. See, e.g.,
State v. Clink, 270 Or App 646, 651,
348 P3d 1187, rev den,
358 Or 69 (2015) (considering association with known drug
dealers to be a factor in reasonable suspicion analysis, but
not dispositive). However, the officer must articulate with
specificity the reasons why an associate would increase
the likelihood that the defendant has committed a specific
crime. See State v. Holdorf,
355 Or 812, 823,
333 P3d 982
(2014) (emphasizing the importance of an officer’s articulation of specific facts when finding reasonable suspicion).
A generalized belief that a person is involved in criminal
activity, even if that belief is reasonable, is not connected
to the specific crime of methamphetamine possession. State
v. Sherman,
274 Or App 764, 775-76,
362 P3d 720 (2015).
Moreover, prior associations with someone actually known
to be involved in methamphetamine possession do not support reasonable suspicion—much less reasonable grounds—
that defendant possessed methamphetamine at the time of
the encounter. State v. Zumbrum,
221 Or App 362, 369,
189
P3d 1235 (2008).
Cite as
313 Or App 348 (2021) 355
Defendant’s history of drug possession together
with his acknowledgement of recent drug use do not give
rise to reasonable grounds to request his consent to search
his person or his car at the time of the stop. The state failed
to show that Scaglione and thus, Galinski, had reasonable
grounds to believe that defendant violated his release agreement by possessing methamphetamine, or that a search of
defendant’s car would reveal evidence of such a violation.
Reversed and remanded.
