State v. Miller

                                        32

 Argued and submitted May 5, 2020, resubmitted en banc December 15, 2021;
   affirmed April 13; petition for review denied July 28, 2022 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    RODNEY MONROE MILLER,
                        Defendant-Appellant.
                     Marion County Circuit Court
                        18CR24381; A168644
                                   

     Defendant appeals from a judgment of conviction for unlawful possession of
methamphetamine, ORS 475.894 (2017). On appeal, defendant contends that the
trial court erred in denying his motion to suppress evidence obtained during a
search, because the investigating officer lacked reasonable suspicion to stop him.
The circumstances at the time of the stop were (1) that defendant was parked
crookedly in an odd spot in a grocery store parking lot late at night; (2) that the
officer saw an uncapped syringe that looked “loaded,” although the officer did not
have a clear view; (3) that the syringe was near defendant’s foot on his truck’s
floorboard; (4) that a butane lighter was visible in defendant’s truck door; (5) that
defendant had one sleeve of his sweatshirt rolled up; (6) that defendant was nervous when questioned about the syringe; (7) that defendant specifically rejected
the possibility that he used the syringe to treat diabetes; and (8) that defendant
gave shifting and contradictory statements about his knowledge of the syringe.
Held: Considering the totality of the circumstances, the Court of Appeals concluded that the officer had an objectively reasonable suspicion that defendant
possessed illegal drugs before he initiated the stop.
    Affirmed.




    En Banc
    Donald D. Abar, Judge.
   Kyle Krohn, 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.
   Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 

 (2022)                                     33

  Before Lagesen, C. J., and Ortega, Egan, Tookey, Shorr,
James, Aoyagi, Powers, Mooney, Kamins, Pagán, Joyce, JJ.
and DeHoog, J. pro tempore.
   SHORR, J.
   Affirmed.
   Shorr, J., filed the opinion of the court in which Lagesen, C. J.,
Tookey, James, Aoyagi, Kamins, Joyce, JJ., and DeHoog J.
pro tempore, joined.
  Powers, J., dissented and filed an opinion in which Ortega,
Egan, Mooney, and Pagán, JJ., joined.
34                                                        State v. Miller

          SHORR, J.
          Defendant appeals from a judgment of conviction
for unlawful possession of methamphetamine, ORS 475.894
(2017).1 Following the denial of his motion to suppress evidence obtained during a search, defendant entered a conditional guilty plea, reserving his right to appeal the trial
court’s ruling. On appeal, defendant contends that the trial
court erred in denying his motion because the investigating
officer lacked reasonable suspicion to stop defendant, which
stop then led to the discovery of incriminating evidence.
The state responds that reasonable suspicion supported the
stop. As explained below, we conclude that the officer had an
objectively reasonable suspicion that defendant possessed
illegal drugs before he initiated the stop. As a result, we
affirm.
         We review the trial court’s ruling denying defendant’s motion to suppress for legal error. State v. Maciel-Figueroa, 

, 

 (2017). In so doing,
we are bound by the court’s factual findings if there is constitutionally sufficient evidence in the record to support them.
State v. Ehly, 

, 

 (1993). Where the
court did not make express findings, and there is evidence
from which the court could have found a fact in more than
one way, we presume that the court decided the facts consistently with its ultimate conclusion. 

 We summarize the
facts consistent with those standards.
         On March 23, 2018, around midnight, Officer
Witherell observed a pickup truck parked in the parking
lot of an open Safeway store in Stayton. It was snowing,
and the truck was parked crookedly in an “odd spot” that
would require a person to “walk completely across the parking lot to go into the store.” Witherell determined that the
truck was registered to defendant and that it was required
to have an ignition interlock device. Witherell observed the
truck for a few minutes from across the street. After seeing the truck’s brake lights come on, Witherell drove his

    1
      ORS 475.894 was substantially amended between the time of defendant’s
arrest and prosecution and this writing. See Or Laws 2021, ch 2, § 17 (Ballot
Measure 110); Or Laws 2021, ch 591, § 349 (modifying and implementing Ballot
Measure 110). As a result, we cite to the 2017 version in this opinion.
Cite as 

 (2022)                                35

patrol car back to the Safeway parking lot, watched the
truck for a few more minutes, and then approached it on
foot.
        As Witherell walked up to the truck, defendant—
who was in the driver’s seat—opened the truck door.
Witherell asked defendant “if everything was ok and what
was going on,” and defendant explained that he was arguing
with his girlfriend and held up his phone to Witherell, which
Witherell took to mean that defendant was arguing with her
on the phone.
         During that interaction, Witherell noticed that defendant was wearing a hooded sweatshirt with the left sleeve
“pulled up over his elbow” and the right sleeve pulled down
to his wrist. Because defendant’s truck was “very lifted”
such that the truck’s floorboard was “almost to [Witherell’s]
chest level,” Witherell noticed that there was an uncapped
syringe next to defendant’s left foot. Witherell testified that
the syringe looked like it was “loaded” but that he “could
not get a clear enough view of it.” Witherell also noticed
a butane lighter in the driver’s side door compartment.
Witherell testified that butane lighters are consistent with
methamphetamine and heroin use because they are used
to heat spoons and glass pipes used to ingest methamphetamine and heroin.
          Witherell then asked defendant about the syringe.
Defendant initially responded, “Needle, I don’t know.” After
Witherell pointed to the syringe, defendant responded, “That
one, I couldn’t tell ya.” Defendant “was acting nervous specifically about the needle.” Witherell then asked defendant
if there was any other kind of drug paraphernalia in the
truck, and defendant said “Bro, I ain’t got nothin.” Because
syringes are used by those with diabetes, the officer asked
defendant if he had diabetes. Defendant confirmed that he
was not diabetic.
          Defendant then offered a new explanation, that he
had found the syringe at work earlier and was going to give
it to a coworker named Stuart on the next day. At that time,
based on defendant’s suspicious demeanor, his one rolled-up
sleeve, the presence of the syringe and butane lighter,
and defendant’s nervousness about the syringe, Witherell
36                                                         State v. Miller

asked defendant to get out of the truck. As we discuss later,
the trial court concluded that a stop had occurred at that
point, and the parties do not contest that conclusion on
appeal.2
         Witherell then frisked defendant for weapons. After
the frisk, and without being questioned, defendant offered
a different explanation—that he had picked up a man earlier who offered him the syringe. Defendant said that he
was arguing with his girlfriend, that he was upset, and
that he “hadn’t done it yet.” Witherell proceeded to seize
the syringe and search the truck. Underneath the driver’s
seat, he discovered a spoon with methamphetamine residue.
Underneath the butane lighter, he found a glass pipe with
methamphetamine residue. He also found a “wash bottle,”
which is used “to rinse out syringes or to put water on the
spoon and to inject methamphetamine or heroin.” Witherell
then arrested defendant and gave him Miranda warnings.
Defendant confirmed that the wash bottle was “just wash.”
Defendant also said that he had used methamphetamine in
the past. When asked what he thought was in the syringe,
defendant responded “I’m assuming it was meth.” Witherell
followed up by asking defendant if it was methamphetamine
or heroin, and defendant said, “It’s not heroin. I would never
touch that shit; it’s meth.”
         Before trial, defendant filed a motion to suppress
all evidence derived from the stop. Defendant argued that
Witherell unlawfully stopped and seized him in violation
of Article I, section 9, of the Oregon Constitution and the
Fourth Amendment to the United States Constitution. At
the suppression hearing, defendant argued that Witherell
lacked reasonable suspicion to stop and seize him. The
state argued the initial encounter was not a stop, and that
thereafter Witherell articulated a sufficient basis to believe
that defendant possessed a controlled substance, that the
plain-view exception justified seizing the syringe, and
that the search-incident-to-arrest exception justified the
search of the vehicle. In urging the trial court to deny the
suppression motion, the state focused on the lawfulness of

    2
      In our analysis below, we rely only on the facts perceived by the officer
before that stop.
Cite as 

 (2022)                               37

the initial contact as the main issue before the court and
asserted that “so long as that initial contact was lawful the
rest of the evidence that was seized thereafter should be
admissible.”

         The trial court denied defendant’s motion. It concluded that Witherell did not stop defendant until he asked
him to get out of the truck and frisked him. The trial court
further concluded that a sufficient legal basis supported
that stop. In making that determination, the trial court
found that defendant had been parked crookedly in an isolated spot in a Safeway parking lot late on a snowy night,
and that when the officer approached defendant, defendant
opened the truck door. The trial court further found that the
officer observed a syringe on the truck floor near defendant’s
feet and a butane lighter in the driver’s side door, and that
the officer believed—although he was not certain—that the
syringe was “loaded.” Additionally, the court found that one
of defendant’s sleeves was rolled up as if he were “about to
shoot up.” As noted, after the trial court denied defendant’s
motion, defendant entered a conditional guilty plea, specifically reserving his right to appeal the trial court’s ruling
denying suppression.

         On appeal, defendant renews his contention that
he was unlawfully stopped without reasonable suspicion of
illegal drug possession, asserting that the trial court erred
when it denied his motion to suppress. As noted, the trial
court concluded that defendant was stopped when Witherell
asked him to step out of the truck and frisked him, and the
parties do not contest that conclusion. See State v. Bowen,

, 

 (1987), rev den, 

 (1988) (holding that the defendant was “clearly stopped”
when the officer asked her to step out of the car and frisked
her). Defendant maintains, however, that the officer lacked
reasonable suspicion of illegal drug possession at that point.
The state argues that the court correctly denied defendant’s
motion because reasonable suspicion supported Witherell’s
stop of defendant. For the reasons that follow, we conclude that the officer had reasonable suspicion that defendant was about to shoot up illegal drugs that he currently
possessed.
38                                                            State v. Miller

         Article I, section 9, prohibits “unreasonable” searches
and seizures.3 A “stop” is a type of seizure that amounts to
a “temporary detention” conducted “for investigatory purposes.” Maciel-Figueroa, 

. A stop must be
justified by a reasonable suspicion of criminal activity. State
v. Rodgers/Kirkeby, 

, 

 (2010).
          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 when that belief
is objectively reasonable in light of the totality of the circumstances existing at the time of the stop. Maciel-Figueroa, 

. An officer’s subjective belief is objectively reasonable when the officer points to specific and articulable facts
that support a reasonable inference that the defendant has
committed or is about to commit the crime that the officer
suspects. State v. Holdorf, 

, 

(2014). “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). In analyzing whether an officer had reasonable suspicion to make a stop, we have observed that an officer’s training and experience may help to interpret a specific
and articulable fact in a given situation, but training and
experience is not, in and of itself, a substitute for objectively
observable facts. See, e.g., State v. Schmitz, 

,
178, 

 (2019).
          In this case, defendant does not challenge Witherell’s
subjective belief that defendant possessed illegal drugs;
rather, he argues that the officer’s belief was not objectively reasonable under the totality of the circumstances.
Accordingly, we review to determine whether Witherell’s
belief was objectively reasonable under the totality of the
circumstances known to him at the time that he stopped
defendant. The circumstances were that (1) defendant was
parked crookedly in an odd spot in a grocery store parking
lot late at night; (2) the officer saw an uncapped syringe that

    3
      Article I, section 9, protects “the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable search, or seizure.”
Cite as 

 (2022)                               39

looked “loaded,” although the officer did not have a clear
view; (3) the syringe was near defendant’s foot on his truck’s
floorboard; (4) a butane lighter was visible in defendant’s
truck door; (5) defendant had one sleeve of his sweatshirt
rolled up; (6) defendant was nervous when questioned about
the syringe; (7) defendant specifically rejected the possibility that he used the syringe to treat diabetes; and (8) defendant gave shifting and contradictory statements about his
knowledge of the syringe.
          We begin our analysis by acknowledging that this
is a case where each fact, standing alone, provides either no
or little support for the officer’s reasonable suspicion. But,
as we explain later, these facts do not exist in a vacuum. A
group of facts that, standing alone, may not provide much
information, when taken together and in context, may provide a different picture that is far clearer.
          Looking at some of the facts individually, we readily conclude that the fact that defendant was parked crookedly and in an “odd” spot late at night in a store parking
lot provided the officer with no information that defendant
was engaged in illegal activity. See State v. Berry, 

, 

 (2009) (concluding that there was
no reasonable suspicion when the defendant, at 2:30 a.m.,
pulled into the parking lot of a closed restaurant, offered an
implausible explanation for being there, had come from a
location the officer knew was associated with drug activity,
made furtive movements, and was nervous). That defendant
was found with one rolled up sleeve also does not, on its own,
provide any basis for reasonable suspicion. State v. Miglavs,

, 

 (2004) (“[A] person’s appearance
alone never can support a reasonable suspicion of unlawful
activity.”).
          We have also repeatedly observed that nervous
behavior adds little to the reasonable suspicion inquiry. See,
e.g., State v. Reich, 

, 

 (2017)
(so stating). Although Witherell observed that defendant
was nervous—specifically about the needle—that nervousness does not rise to reasonable suspicion of illegal drug
possession. See State v. Rutledge, 

, 

 (2011) (concluding that there was no reasonable
40                                            State v. Miller

suspicion of drug possession 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”).
         We have also stated that a defendant’s apparent
possession of implements that can be used for both illegal
drugs and for other legal uses, without more, adds little to
the reasonable suspicion analysis. See State v. Sherman, 

, 

 (2015) (stating that “the
presence of a butane torch, without more, does not give an
officer reasonable suspicion of criminal activity”); State v.
Oller, 

, 

 (2016), rev den,

 (2017) (no reasonable suspicion of illegal drug
possession when the defendant had been driving a car with
syringes in the driver’s side door, intravenous drug users are
known to use the same type of syringes, and the defendant’s
passenger was on probation for past drug crimes). Even evidence that a defendant is a drug user or has recently used
illegal drugs does not say much at all about whether a defendant currently possesses illegal drugs. See State v. Kolb, 

, 

 (2012) (observing that evidence that the defendant was under the influence of methamphetamine did not give rise to a reasonable inference that
the defendant possessed methamphetamine paraphernalia
that retained methamphetamine residue); Oller, 

 (explaining that, even if the officer could reasonably
infer that the defendant was an intravenous drug user, that
did not support reasonable suspicion of current possession of
illegal drugs). Thus, the presence of the syringe and butane
lighter in defendant’s truck also, on their own, do not establish reasonable suspicion that defendant currently possessed
drugs.
          Before turning to a consideration of the facts in
concert and the totality of the circumstances, we make a
further observation about one individual fact and the reasonable inference that may be drawn from it. As noted, the
officer saw an uncapped syringe that looked “loaded” to him,
although the officer admitted he did not have a clear view,
and that the syringe was visible by defendant’s left foot in
defendant’s truck. The trial court found that although the
officer “couldn’t say with certainty that the syringe was
Cite as 

 (2022)                                  41

loaded when he saw it at [defendant’s] foot[,] he believed it
was.” There is evidence to support that finding. See Ehly,

 (stating that we are bound by the trial court’s
findings of fact if there is constitutionally sufficient evidence
to support them). As a legal matter, it was reasonable for
the officer to infer that the presence of the loaded syringe
directly at defendant’s feet and in his truck indicated that
defendant possessed the loaded syringe. See Oller, 

 (stating that it “may well have been reasonable”
for the officer to infer that the defendant, who had been driving the car, possessed the syringes observed in the driver’s
side door).
         We now turn to consideration of the facts in context
and “the totality of the circumstances existing at the time
of the stop.” Maciel-Figueroa, 

. As noted, if we
consider each observed fact known to the officer entirely on
its own and without reference to each other—that defendant
had an uncapped and “loaded” syringe at his feet, one rolled
up sleeve, and a butane lighter in the door near him—we
might reach a different result. But those facts did not exist
on their own. Taken in concert, those facts inform each other
and at least raise the likelihood that the officer happened to
approach defendant’s car on foot as defendant was about to
shoot up some kind of drug. The officer also testified that, in
his experience, a butane lighter is consistent with methamphetamine and heroin use.
         Then, there are the additional contextual facts that
inform the analysis. Prior to the stop, defendant offered
shifting and inconsistent explanations for the presence of
the loaded syringe. Defendant first entirely denied knowledge of the syringe and then, shortly afterwards, contended
that that he had found the syringe at work earlier and was
going to give it to a coworker on the next day. Defendant’s
inconsistent explanations—that may, again, on their own
not provide reasonable suspicion that defendant possessed
illegal drugs—at least suggest that defendant may not have
been telling the truth about the syringe and was trying to
disclaim ownership because he was aware of the syringe’s
illegal contents. Significantly, and distinguishing this case
from other cases where a syringe was found, defendant also
denied the possibility that he was using the syringe for a
42                                             State v. Miller

very common legal use, namely, to inject insulin to treat
diabetes. Taken all together, as we must consider them, the
facts are sufficient to support the officer’s reasonable suspicion that defendant was about to shoot up illegal drugs
and currently possessed them in the syringe observed at his
feet. That is enough to meet the reasonable-suspicion standard required for a stop under Article I, section 9.
          Indeed, we recently held that an officer had probable cause, a higher standard than reasonable suspicion,
to believe that a defendant possessed methamphetamine
after the officer observed a syringe in plain view under circumstances not substantially different—and perhaps less
compelling—than the facts at issue here. State v. Wise-Welch,

, 

 (2022). The officer initially
contacted the occupants of a parked vehicle in the parking
lot of a closed boat ramp. 

. Through an open passenger door, the officer observed a glass pipe with crystalline
residue near the defendant and a syringe “with the plunger
pulled back suggesting it was ready for use” in the defendant’s open purse. 

 The officer subjectively believed that
the pipe contained methamphetamine and that the syringe
was going to be used for injecting the drug. 

 The syringe
later tested positive for methamphetamine. 

 Importantly,
the opinion does not state that the officer observed anything
in the syringe. However, we rejected the defendant’s argument that the incriminating character of the syringe was
not immediately apparent. 

 We noted that a normally
benign object like a syringe may nonetheless be subject to
seizure and have an incriminating character depending on
the context in which it is found. 

. We concluded
that, in light of the circumstances in which the defendant’s
syringe was found, the officer had probable cause to believe
that the syringe contained illegal contraband, namely methamphetamine. 

 As discussed, here the context of all of the
facts similarly support the trial court’s conclusion that the
officer had reasonable suspicion to believe that the syringe
contained illegal drugs.
        Finally, defendant does not develop a separate
argument that the officer’s actions violated the Fourth
Amendment. Instead, defendant largely relies on citation
to two Oregon cases for the proposition that the required
Cite as 

 (2022)                               43

analysis under the Oregon Constitution is either “not
meaningfully different” or is “effectively the same” as that
required under the United States Constitution. See State v.
Backstrand, 

, 402 n 11, 

 (2013); State
v. Bond, 

, 

 (2003), rev den,

 (2004). To the extent that there may be nonmeaningful differences that might affect the outcome of this case,
defendant does not articulate them in his brief. Accepting
defendant’s argument and for the reasons expressed above,
we also conclude that the officer had reasonable suspicion to
stop defendant under the Fourth Amendment.
         We conclude by noting our respectful disagreement
with the dissent. The dissent concludes that this is a case
in which we are stacking inferences to reach our conclusion. We acknowledge one underlying inference that does,
in fact, underlie all of the others: That defendant possessed
the loaded syringe at his feet. We recognize that if it could
be said that defendant had not possessed the syringe, we
may not be able to then conclude that the officer had reasonable suspicion that defendant possessed illegal drugs. We do
not understand the dissent to contest that point, however.
The remaining facts that are important to our analysis do
not rely on stacking logical inferences that each, in turn,
depend on the validity of the prior underlying inference. As
noted, instead, we have numerous facts that, when taken
alone, may not be sufficient, but when considered together,
as we must view them, paint a picture that is enough to
meet the reasonable-suspicion standard.
        The dissent also relies on cases that ultimately
reduce to the principle that evidence that a person is a drug
user—whether past, present or habitual—combined with
their mere possession of drug paraphernalia like syringes,
which have entirely legal uses, do not give rise to reasonable suspicion of current possession of illegal drugs without additional evidence. That principle is sound because, as
noted, the mere fact that there is evidence that a person
used drugs says very little about whether the person currently possesses illegal drugs. Even the presence of drug
paraphernalia, which can have legal uses, does not tell us
much about whether an individual currently possesses illegal drugs without more. Those cases, however, have a more
44                                            State v. Miller

limited application here, where there is additional evidence
such that the officer encountered defendant in circumstances
where the officer could reasonably suspect that defendant
had been stopped when he was in the process of injecting
illegal drugs and thereby currently possessed them.
        In sum, we affirm the trial court’s denial of the
motion to suppress, because, at the point the officer stopped
defendant and asked him to step out of the car, the officer
had reasonable suspicion that defendant possessed illegal
drugs.
        Affirmed.
        POWERS, J., dissenting.
         In my view, the circumstances preceding the stop
do not support objective reasonable suspicion of possession
of a controlled substance. Although I do not quibble with
the existence of the legal principle used by the majority
opinion that the sum may be greater than its parts, I part
ways in its application in this case because the individual
circumstances identified by Officer Witherell fall short
of the constitutional standard. We should not stack inferences to fill gaps in the officer’s testimony, to mix my metaphors. Properly viewed, the specific and articulable facts
in this case combined with the reasonable inferences that
may be drawn from them, including defendant’s truck in an
odd parking spot at night, the presence of a butane lighter,
defendant’s rolled-up sleeve and nervousness—even when
combined with a potentially “loaded” syringe and defendant’s explanations about that syringe—are insufficient to
constitute reasonable suspicion of illegal drug possession.
Accordingly, I respectfully dissent.
          To determine that an investigative stop was lawful
under Article I, section 9, of the Oregon Constitution, we
(1) must conclude that an officer actually suspected that the
stopped person had committed a specific crime or type of
crime, or was about to commit a specific crime or type of
crime, and (2) must conclude, based on the record, that an
officer’s subjective belief was objectively reasonable under
the totality of the circumstances existing at the time of the
stop. State v. Maciel-Figueroa, 

, 389 P3d
Cite as 

 (2022)                                  45

1121 (2017). That is, reasonable suspicion exists when an
officer is able to point to specific and articulable facts that
give rise to an inference that criminal activity is afoot. See,
e.g., State v. Lichty, 

, 

 (1992). An
officer may not detain an individual based solely on intuition or experience. State v. Holdorf, 

, 

 (2014). Rather, the officer must have a subjective
belief that is objectively reasonable under the totality of the
circumstances. State v. Kreis, 

, 

(2019). Important to this case, the distinction between an
officer’s improper reliance solely on intuition and the officer’s permissible reliance on reasonable suspicion of criminal activity “reduces largely to the officer’s ability to identify
and describe the observable facts that lead the officer—in
light of the officer’s training and experience—to suspect
that a person has committed, is committing, or is about to
commit a crime.” State v. Walker, 

, 

, rev den, 

 (2016).
         Where reasonable suspicion is based upon a chain
of interlocking inferences, we assess whether those inferences are individually and collectively reasonable. State v.
Oller, 

, 

 (2016), rev den,

 (2017). “If the premises collectively are impermissibly speculative, or if any of the premises is individually insupportable, the stop was not supported by reasonable suspicion.” State v. Kolb, 

, 

 (2012) (citing State v. Bivins, 

,

 (2004)). That is because an inferential chain can
become “too tenuous” to support a nonspeculative suspicion
of criminal conduct. 

         As an initial matter, I agree with the majority opinion when it concludes that each circumstance described by
Witherell standing alone provides little to no support for
establishing reasonable suspicion. For example, parking in
an odd spot at night, having a rolled-up sleeve, being nervous
when questioned by the officer, and seeing a butane lighter
in defendant’s truck all fall short for the reasons described
by the majority opinion. See, e.g., State v. Messer, 

, 

 (1984) (explaining that not all “persons
who sit in vehicles in parking lots at odd hours of the night
or morning … render themselves suspect and subject to
46                                                 State v. Miller

being stopped by a passing police officer” (footnote omitted));
State v. Morfin-Estrada, 

, 

, rev den, 

 (2012) (collecting cases that recognize reasonable suspicion cannot be based entirely on a person’s appearance); State v. Reich, 

, 

 (2017) (observing that “nervous behavior adds little
to the reasonable suspicion inquiry”); and State v. Sherman,

, 

 (2015) (explaining that
the “presence of a butane torch, without more, does not give
an officer reasonable suspicion of criminal activity”).
        The focus of my disagreement with the majority
opinion centers on the presence of the potentially loaded
syringe. As described by the majority opinion, Witherell
noticed an uncapped syringe next to defendant’s left foot.
Witherell did not describe what the syringe looked like,
provide any details about any contents in the syringe, or
discuss any significance of the syringe. At the suppression
hearing, the prosecutor did not ask Witherell to describe the
syringe other than the following exchange:
        “Q [by the prosecutor]: Okay. Could you tell at that
     point whether or not the syringe was loaded or not?
        “A [by Witherell]: It looked like it was, but I could
     not get a clear enough view of it. It was not capped; it was
     uncapped[.]”
That is the entirety of the testimony describing the syringe.
Notably absent from the record is any discussion of what
“loaded” means and whether the syringe was potentially
loaded with a legal or illegal substance. Did that mean that
it was full of liquid or merely that the plunger was drawn
back and that he could not see what was in the syringe?
Unlike his testimony about the butane lighter, Witherell
never explained why he connected the syringe with illegal
drug use. That is, there was nothing about whether any substance in the syringe appeared to be consistent or inconsistent with illegal drug use. Similarly, there was no evidence
of whether Witherell could tell with a glance that the potentially loaded syringe was consistent or inconsistent with a
more benign use such as to administer medication to a pet
or for use by someone treating diabetes or another medical condition. Although the state does not need to prove the
Cite as 

 (2022)                                                     47

latter, it should be held accountable for its failure to establish the former. See Lichty, 

 (concluding that
there was reasonable suspicion where there was evidence in
the record of general knowledge regarding the appearance
of cocaine combined with an officer’s own expertise about
illegal drugs). Indeed, Witherell’s testimony raised only
one possible use—and a legal use at that—for the syringe
when he asked defendant if he was diabetic. Importantly,
Witherell never explicitly connected the syringe to methamphetamine, heroin, or any other illegal drug or provided any
detail about the syringe that would make that type of connection objectively reasonable.1
         The absence of those details is significant; however, the gaps in the testimony do not hinder the majority
opinion’s conclusion that the trial court correctly denied the
suppression motion. Instead, as I understand the majority
    1
      Just how thin the record is about the syringe is exemplified by the following
exchange that forms the bulk of Witherell’s testimony on the subject:
         “Q [by the prosecutor]: Okay. And so, what did you do after you saw those
    items?
         “A [by Witherell]: I asked him about it; I asked him about the syringe. He
    initially said, I don’t remember his direct quote, I believe it was his first one
    when I asked about the needle was that he said, ‘Needle, I don’t know.’ I then
    later pointed it out. Well, first I asked him if it was his truck to make sure
    it was his vehicle. And he said, ‘Well, yes it is,’ then he laughed. But then I
    pointed out that syringe and he looked down and said—let’s see—‘That one,
    I couldn’t tell ya.’ At that point I asked if there was any other kind of drug
    paraphernalia in the car and he said, ‘Bro, I ain’t got nothin.’
         “Q: Okay. And then what happened after that?
         “A: Well, my next question was is I asked him are you diabetic, because
    syringes are consistent if he has diabetes. So I asked him if he’s diabetic and
    he said no that he was not. I asked him if he understood why I was curious
    and he said that he did. He also said that he was at work earlier, he had found
    the syringe and had picked it up and was going to give it to a co-worker the
    next day named Stuart.
         “Q: Okay. And then, did you ask any additional questions regarding the
    items after that?
         “A: No. Shortly after that I—after seeing his demeanor was suspicious to
    me; the sleeves, one up, one down, the needle, the butane lighter. He was acting nervous specifically about the needle. I asked him to get out of his vehicle
    at that point.”
Moreover, although defendant does not raise the issue, it is questionable whether
the officer could even ask the diabetes question without effectuating a stop in
light of State v. Reyes-Herrera, 

, 

 (2021) (addressing
when verbal statements by law enforcement will constitute a stop or seizure
under the state constitution).
48                                                   State v. Miller

opinion, it is permissible to take Witherell’s testimony about
not being able to get a clear view of the syringe, seeing that
it was uncapped near defendant’s foot, and looking “like it
was” loaded and then fill in the gaps of that testimony by
assessing the totality of the circumstances to conclude that
it was objectively reasonable to conclude that the syringe
was (a) loaded, as in full of liquid; (b) loaded with illegal
drugs; and (c) loaded with illegal drugs for defendant’s use.
We should not stack inference upon inference to make up for
the deficiencies in the record. Accordingly, I would conclude
that here, as in Oller, that chain of interlocking inferences
fails to establish reasonable suspicion.
         In Oller, the officer stopped the defendant for a
traffic violation after noticing that the defendant’s passenger was a known drug user who was on probation for drug
crimes. 277 Or App at 530-31. 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.” Id. at
531. At that point, the officer believed he had reasonable
suspicion to extend the stop to investigate the defendant for
a drug offense. Id. On appeal, we concluded that the officer’s suspicion of current drug possession was not objectively
reasonable, and therefore, the officer unlawfully seized
the defendant. Id. at 538. In reaching that conclusion, we
explained that the officer relied on an impermissible stacking of inferences to arrive at the conclusion that the defendant possessed illegal drugs:
     “(1) because defendant had been driving the car, the syringes
     in the driver’s side door were likely hers; (2) because defendant apparently possessed syringes that were of a type
     that [the officer] knew to be used by intravenous (IV) drug
     users and defendant was in the presence of a known drug
     user, defendant was likely to be an IV drug user herself;
     and (3) because IV drug users who carry drug paraphernalia may also possess illegal drugs—which, without more, is
     itself arguably speculative—defendant herself might possess illegal drugs.”
Oller, 

 (footnotes omitted).
        In analyzing those three inferences, we acknowledged that the first inference might be reasonable and then
Cite as 

 (2022)                               49

explained why the next two inferences were unsound. Id. at
537-38. Importantly, we expressed skepticism that the officer’s testimony supported the second inference—that defendant was an IV drug user because she had the same type of
syringe that other IV drug users used—because the officer
“gave no description of the syringes themselves that would
aid the court in evaluating whether defendant’s possession
of them indicated that she was an active drug user.” Id. at
537. We then rejected the third inference, explaining that,
“even if [the officer] could reasonably infer that defendant
was a drug user, 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.

          In my view, none of the reasonable inferences that
can be drawn from the totality of the circumstances in this
case lead to the ultimate inference that defendant possessed
illegal drugs, which the majority opinion uses to justify
Witherell’s stop of defendant when he ordered defendant to
get out of the truck. We should not fill the gaps in the testimony with stacked inferences about the nature and content of the potentially loaded syringe. As in Oller, only an
impermissible stacking of inferences connected the syringe,
lighter, and defendant’s rolled-up sleeve with the ultimate
inference that he possessed illegal drugs. In forming the
belief that defendant possessed illegal drugs, Witherell
necessarily relied upon the following chain of interlocking
inferences: (1) the syringe and lighter belonged to defendant
because they were in his truck; (2) because he had a butane
lighter, which can be used to prepare drugs such as heroin
and methamphetamine for consumption, defendant likely
used illegal drugs; (3) because there was an uncapped and
potentially loaded syringe lying on the floor near defendant’s
foot and defendant was not diabetic, he was likely to be an
intravenous drug user; (4) because defendant had one sleeve
rolled up over his elbow, he likely used, or planned to use,
illegal intravenous drugs; and (5) thus, defendant presently
possessed illegal drugs.

       The first inference is reasonable, given that the
items were in defendant’s truck. The second and third
50                                                              State v. Miller

inferences—that the lighter and potentially “loaded” syringe
show that defendant uses illegal drugs—are less reasonable.
First, butane lighters or torches are “not exclusively used for
drug ingestion” and are not in themselves illegal. Sherman,

. Second, as we have explained previously
in Oller, possession of a syringe alone cannot support the
inference that defendant used it to inject illegal drugs. 277
Or App at 537. Witherell described the syringe as uncapped,
lying on the floor near defendant’s foot, and potentially
“loaded.” He did not explain what he meant by the term
“loaded” or otherwise describe the contents of the syringe.
Although the syringe may be evidence of intravenous drug
use, it does not necessarily establish present possession of
illegal drugs. See Oller, 

 (explaining that
“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”). Had
Witherell’s testimony more concretely established that what
he saw as a potentially “loaded” syringe created reasonable
suspicion of illegal—as opposed to legal—drug use, this
may have been a different case. But here, as the trial court
recognized, Witherell’s testimony merely established that
the syringe might have been loaded. Therefore, in my view,
although it may be a permissible inference to conclude that
the syringe was in fact loaded with a drug, it requires further impermissible speculation to conclude that the syringe
was loaded with an illegal substance.2
     2
       The majority opinion’s reliance on State v. Wise-Welsh, 

, 

 (2022), is unavailing for a number of reasons. First, the snippets of the
officer’s testimony recounted in our opinion provide more detail about the syringe
and surrounding circumstances found in that case compared to the record before
us in this case. For example, the officer in Wise-Welsh saw a glass pipe “containing
crystalline residue” near the defendant and a syringe “with the plunger pulled
back suggesting it was ready for use.” 

. In this case, however, Witherell’s
testimony is noticeably silent on those types of details about the syringe or the
surrounding circumstances. More significantly, the officer in Wise-Welsh, unlike
Witherell in this case, articulated a subjective belief about the contents of the
pipe and the syringe. See 

 (explaining that the officer “believ[ed] that the
pipe contained methamphetamine and that the syringe was likewise going to be
used for ingesting methamphetamine”). Second, the parties’ briefs in Wise-Welsh
described in more detail the officer’s testimony, which included a description of
his training and experience in drug enforcement and recognition, his belief that
one of the defendant’s companions was under the influence of methamphetamine,
and that he was familiar with the appearance of methamphetamine and the ways
in which people use it. It is precisely that sort of testimony that is missing in this
case—testimony that provides the necessary context to support a conclusion that
Cite as 

 (2022)                                                 51

         Likewise, the fourth inference that defendant was
about to inject illegal intravenous drugs because one of his
sleeves was rolled up is too speculative, even considering
the presence of the uncapped syringe near defendant’s foot.
We have declined to find reasonable suspicion of illegal drug
possession even in circumstances where there was more
clear evidence of drug use. For instance, we have held that
there was no reasonable suspicion to support a stop for illegal drug possession when the defendant was found walking
and dancing alongside a highway, wearing dirty and unkept
clothing with one arm exposed, that arm bore track marks
indicative of intravenous drug use, and the officer suspected
that the defendant used illegal drugs the night before. State
v. Holcomb, 

, 

, adh’d to as modified on recons, 

, 

 (2005). Here,
although the inference centered on impending drug use
rather than past or recent drug use, the circumstances were
even less suspicious: one of defendant’s arms was exposed,
but neither his behavior nor the skin on his exposed arm
suggested past or recent drug use.
         Finally, even if the specific and articulable facts
adduced at the suppression hearing—and the reasonable
inferences drawn from them—established that defendant
was a habitual drug user, had recently used illegal drugs,
or was currently under the influence of illegal drugs, those
facts alone would still be insufficient to establish reasonable suspicion that he currently possessed illegal drugs.
See Holcomb, 

 (explaining that evidence
of recent drug use did not support a reasonable inference
that the defendant currently possessed drugs); Kolb, 

 (observing that evidence that the defendant
was under the influence of methamphetamine did not give
rise to a reasonable inference that the defendant possessed

an inference is objectively reasonable, rather than merely speculative. Finally,
fact-matching when weighing the totality of the circumstance is a fraught business. See, e.g., Dorn v. Teacher Standards and Practices Comm., 

, 

 (2021) (“Fact-matching between similar cases is inexact.”); State
v. Sierra, 

, 515-16 n 5, 

 (2010), adh’d to as modified on
recons, 

, 

 (2011) (“Fact-matching can be a misleading
enterprise.”). Fact-matching gets even more dicey when trying to analogize to a
decision that succinctly describes the circumstances and, thus, can be of nominal
persuasive value.
52                                             State v. Miller

methamphetamine paraphernalia that retained methamphetamine residue); Oller, 227 Or App at 538 (explaining
that, even if the officer’s observations indicated that the
defendant was an intravenous drug user, that did not support reasonable suspicion of current possession of illegal
drugs).
         In short, because the record before us is insufficient
to establish reasonable suspicion, I would conclude that the
trial court erred in denying defendant’s motion to suppress.
As the Supreme Court has observed, “[w]e cannot presume
the existence of other favorable facts; we must confine our
review to the record made.” State v. Bates, 

,

 (1987). Because the majority opinion fills gaps
in the officer’s testimony by stacking inference upon inference to support its conclusion, I respectfully dissent.
           Ortega, Egan, Mooney, and Pagán, JJ., join in this
dissent.