State v. Martin

LANDAU, J.

The state appeals an order suppressing evidence obtained from defendant’s arrest, which occurred while he was standing on a street corner late at night in an area known to be a site of drug transactions. The trial court held that the arresting officer lacked probable cause to believe that defendant had committed a crime. The state contends that, because of the time of day, the location of the arrest and the fact that defendant had been observed two hours earlier engaging in what could have been a drug transaction, the arrest was supported by probable cause. We agree with the trial court and affirm.

Around 11:20 p.m., Portland Police Officer Mahuna was driving to work in his personal car when he stopped at a red light at the intersection of Northeast Killingsworth and Albina Streets. Immediately in front of his car was a van that also had stopped for the light. Mahuna could see both the driver and a passenger through a window in the back of the van. He also could see defendant standing near a bus shelter on the adjacent sidewalk, about ten feet away. The officer saw the passenger in the van gesture to defendant and say something to defendant, although he could not hear what the passenger said. Defendant looked to the left and to the right, stepped into the street and approached the van. Defendant put his head and one hand into the open passenger window for about three seconds. He then turned and walked away. Mahuna saw no money or any other objects exchanged. As defendant walked back toward the sidewalk, he put his right hand into his right rear pants pocket. Mahuna did not, however, see whether defendant put any object into his pocket. The light then turned green, and both the van and Mahuna drove away. At that point, Mahuna believed that he had just witnessed a hand-to-hand drug transaction. In his experience, the area is a known location for such transactions; he had made numerous arrests for possession and delivery of a controlled substance at that very corner. Mahuna refrained from arresting defendant because he was not yet on duty.

Two hours later, while on duty, Mahuna returned to the intersection of Northeast Killingsworth and Albina Streets. He saw defendant standing on the same comer. *462 Mahuna stopped, got out of his car, approached defendant and told defendant to put his hands on ids head. Defendant did so, while Mahuna patted down his right rear pocket. Mahuna felt an object in the pocket that he suspected was rock cocaine. He reached into the pocket and removed a plastic bag containing what appeared to be cocaine. Mahuna then arrested defendant, who subsequently was charged with possession and delivery of a controlled substance. ORS 475.992.

Defendant moved to suppress the evidence. The trial court granted the motion, concluding that, although Mahuna believed that he earlier had observed defendant engage in a criminal act, that subjective belief was not objectively reasonable, particularly in the absence of any observation that defendant had exchanged any object with the persons in the van.

On appeal, the state argues that the trial court erred in concluding that Mahuna’s subjective belief that defendant had committed a crime was not objectively reasonable. According to the state, Mahuna knew from many years of training and experience that the intersection at which he observed defendant was a “notorious” drug-dealing location. He also knew from his training and experience that defendant’s actions at the intersection were at least consistent with a drug transaction. That knowledge, coupled with defendant’s continued presence at the intersection so late at night, the state contends, amounts to an objectively reasonable basis for concluding that defendant probably had committed a crime. Citing our decisions in State v. Reid, 107 Or App 352, 811 P2d 1380 (1991), and State v. Jones, 9 Or App 629, 498 P2d 390 (1972), the state insists that the lack of any observation of an actual exchange is not fatal to its case. Defendant argues that the trial court correctly concluded that the arrest was not supported by probable cause.

ORS 133.310(l)(a) provides that an officer may arrest a person without a warrant “if the officer has probable cause to believe that the person has committed * * * [a] felony.” ORS 131.005(11) defines “probable cause” to mean:

“[TJhere is a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it.”

*463 In reviewing a trial court’s determination as to probable cause, we accept all findings of historical fact supported by the record and examine the existence of probable cause as a legal conclusion. State v. Herbert, 302 Or 237, 241, 729 P2d 547 (1986). In performing that examination, we consider the totality of the circumstances. State v. Rusnak, 128 Or App 488, 491, 876 P2d 848 (1994).

We conclude that the trial court correctly determined that, on the record before it, the arrest of defendant was not supported by probable cause. The facts simply do not establish a substantial basis for concluding that it was more likely than not that defendant had committed a crime. At best, they show that defendant was standing on a street corner in a high-crime area late at night when he had a three-second conversation with the passenger in a van. There is no evidence of an exchange of money or drugs. There is, in fact, no evidence of an exchange of any object. The fact that defendant’s conversation was observed late at night in a high-crime area does not make it more likely than not that defendant had engaged in a drug transaction. As the Supreme Court commented in an analogous situation involving a defendant driving in a high-crime area late at night:

“[The officer’s] suspicions in this regard may have been an excellent guess — the kind resulting from a sixth sense that many officers develop over the years. But, again, there is no objective quality to them that entitles them to any weight, either individually or collectively, in the constitutional calculus. 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 * *

State v. Bates, 304 Or 519, 526, 747 P2d 991 (1987) (emphasis in original). Certainly, it is possible that defendant had engaged in a drug transaction. But the law requires more than a mere possibility. The totality of the circumstances must reveal a substantial basis for concluding that, “more likely than not,” this defendant was involved in a drug transaction. On the evidence before us, we cannot arrive at such a conclusion.

*464 The authorities on which the state relies bear out our analysis and our conclusion. In Reid, the officers received a complaint that drugs were being sold at a particular location. They received information from an informant that an individual matching the defendant’s description had been selling drugs. The officers watched the location where the informant said the transactions had occurred. They saw the defendant approach a car, talk to the driver and then motion to a second individual to bring him an undiscemible item. The defendant exchanged that item for another and then walked off. On those facts, we concluded that the officers who arrested the defendant had probable cause to believe that he had engaged in a drug transaction. Among other things, we noted that the officers had received information that a person matching the defendant’s description had been seen dealing in drugs at that location. In that context, coupled with the officers’ observation of an actual exchange of goods, we concluded that the officers had a substantial basis for believing that the defendant, more likely than not, had committed a crime. Reid, 107 Or App at 355. In this case, Mahuna did not observe any sort of exchange as had occurred in Reid. Moreover, Mahuna had no information that defendant had been involved in drug transactions in the past, much less a description of an actual prior transaction at the location of the arrest, as in Reid.

In Jones, the officer involved was familiar with the defendant and knew that he sold small balloons containing drugs. When the officer saw the defendant walking down the sidewalk in his direction, the officer asked the defendant where he was going. The defendant pushed the officer away and thrust his right hand into his pants pocket. The officer grabbed the defendant’s arm, pulled it out of the pocket and found a balloon that contained drugs. We held that, in the light of the officer’s knowledge of defendant’s modus operandi to keep drugs in balloons in his pocket, there was probable cause for the search and seizure. Jones, 9 Or App at 633. In this case, in contrast, Mahuna had no prior knowledge of any drug dealing modus operandi; he had no prior knowledge of defendant at all. He knew only that defendant was standing at a comer where other persons had been known to transact in drugs.

*465 The dissent contends that the trial court erred in concluding that Mahuna lacked probable cause to arrest defendant. Relying principally on State v. Mendoza, 123 Or App 237, 858 P2d 1350 (1993), it argues that, although “the nature of the transaction may not be apparent to the less-experienced eye,” Mahuna’s experience and knowledge of the area support his conclusion that what he observed earlier in the evening was a hand-to-hand drug transaction. 146 Or App at 470. Certainly, as we have explained, an officer’s training and experience are relevant to the determination of probable cause, and they may lead an officer subjectively to believe that a crime has been committed. But, to satisfy the probable cause requirement, those subjective beliefs must also be supported by facts that give rise to an objectively reasonable determination that a crime probably had been committed. Bates, 304 Or at 526. That is what is the trial court correctly concluded is lacking in this case.

Mendoza itself illustrates the point. In that case, the officers observed what the court characterized as “a classic hand-to-hand drug transaction”: In an area known to be a site of frequent drug transactions, the defendant met with an individual while another appeared to act as a lookout, and the defendant made a “real clear exchange” of money for a small, light-colored package that “looked like the drug packets” that the officers had seen used in drug transactions in the area. Mendoza, 123 Or App at 239-40, 242. There is no such evidence in this case. In particular, there is no evidence of a “real clear exchange” of money for anything that “looked like * * * drug packets.” In fact, Mahuna testified that he saw nothing exchánged at all. He saw only that defendant put his head and hand in the window of a van and then walked away with his hand in his pocket.

The state argues that, even if Mahuna lacked probable cause to believe that defendant had committed a crime, he had reasonable suspicion and, in the light of the limited intrusion involved in a pat-down, that should suffice. Such a frisk (defined in ORS 131.605(2) as “an external patting of a person’s outer clothing”), however, is only authorized upon reasonable suspicion “that the person is armed and presently dangerous.” ORS 131.625(1). Mahuna never testified that he conducted his pat-down for safety reasons, and the state does *466 not assert that he did so. The state nevertheless contends that, under State v. Rhodes, 315 Or 191, 843 P2d 927 (1992), we may permit searches to proceed on something less than probable cause if those searches are not unduly intrusive. We find no such holding in the Rhodes decision.

In Rhodes, an officer found the defendant passed out in the front seat of his truck with the engine running. The officer reasonably suspected the defendant of having committed the crime of driving under the influence. Such reasonable suspicion authorized the officer to stop the defendant. See ORS 131.615. In carrying out the stop, the officer attempted to attract the defendant’s attention. Concerned that knocking on the window might startle the defendant and result in a sudden and dangerous reaction, the officer opened the truck door. The court held that the officer’s action was a reasonable precaution to protect his own and the defendant’s safety. Rhodes, 315 Or at 200. The court did not hold that, depending on the level of intrusiveness of a search, an officer may proceed on something less than probable cause.

Affirmed.