Oregon Appellate Ct - May 13, 2015
by: Abassos and Kit Taylor • May 13, 2015 • no comments
Probable Cause - Behavior Intended Protect One's Privacy Rights Cannot Contribute to PC
A person's behavioral assertion of a constitutionally protected privacy right may not be part of an officer's probable cause calculus. Here, for example, "defendant’s behavior of tightly clutching her purse and refusing a search manifested a desire to protect the privacy of the item and, as such, was an assertion of her constitutional rights." Because the behavior was essentially an assertion of her right to privacy, it could not be evidence of a crime for probable cause purposes:
- "When an individual seeks to protect an item and openly asserts his or her privacy rights, that behavior and assertion is neither innately shifty nor sinister—rather, it is constitutionally protected. And, '[a]llowing the police to conduct a search on the basis of the assertion of a privacy right would render the so-called right nugatory.' State v Brown"
Other than defendant's actions toward her purse, the only other support for probable cause of possession of drugs was:
- evidence of historical drug use
- evidence of very recent drug use
- a scale in plain view in defendant's purse
The evidence of past and recent drug use doesn't even amount to reasonable suspicion because of the stacking inferences necessary to get from past drug use to current possession. The scale brings the case closer to probable cause, but other cases have found "a similar constellation of facts" to be insufficient for probable cause. See, for example, State v Lane (marijuana residue, film canister, scale, nervousness and agitation). Reversed and remanded. State v Barker, 271 Or App 63 (2015).
