No. 210 

May 13, 2015 63
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DEBORAH KAY BARKER,
Defendant-Appellant.
Lane County Circuit Court
201021634; A147777

Charles D. Carlson, Judge.
Argued and submitted May 29, 2013.
Morgen E. Daniels, Deputy Public Defender, argued the
cause for appellant. With her on the brief was Peter Gartlan,
Chief Defender, Office of Public Defense Services.
Rebecca M. Johansen, Assistant Attorney General,
argued the cause for respondent. With her on the brief were
Ellen F. Rosenblum, Attorney General, and Anna M. Joyce,
Solicitor General.
Before Duncan, Presiding Judge, and Haselton, Chief
Judge, and Flynn, Judge.*
DUNCAN, P. J.
Reversed and remanded.
Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, asserting that the trial court erred in denying her motion to suppress evidence found during a warrantless search of her purse. Held: Contrary
to the trial court’s ruling, the search of defendant’s purse was not a valid search
incident to arrest because the searching officer lacked probable cause to arrest
defendant.
Reversed and remanded.

______________
 
*  Haselton, C. J., vice Rasmussen, J. pro tempore; Flynn, J., vice Wollheim,
S. J.

 64 
 

State v. Barker
DUNCAN, P. J.,

 
In this criminal case, defendant appeals the trial
court’s judgment convicting her of one count of unlawful
possession of methamphetamine, ORS 475.894. Defendant
argues that the trial court erred in denying her motion to
suppress evidence obtained when a police officer searched
her purse without a warrant. The trial court ruled that the
officer’s search of defendant’s purse was a valid search incident to arrest. For the reasons explained below, we conclude
that the officer’s search was not a valid search incident to
arrest because the officer did not have probable cause to
arrest defendant. Therefore, the trial court erred in denying
defendant’s motion to suppress. Accordingly, we reverse and
remand.
I. BACKGROUND
 
We review a trial court’s denial of a motion to suppress for errors of law, and we are bound by the trial court’s
factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or
66, 74-75, 854 P2d 421 (1993). Where the trial court did not
make express findings and there is evidence from which the
trial court could have found a fact in more than one way, we
will presume that the facts were decided in a manner consistent with the trial court’s ultimate conclusion. Id. at 75. We
state the facts in accordance with those standards.
 
Defendant was a passenger in a truck driven by
her husband, which was stopped by Oregon State Police
Trooper Ratliff on suspicion of driving while intoxicated.
Ratliff noticed that defendant’s husband was “overly nervous” and that there was a bottle of alcohol on the seat, as
well as many knives, lighters, and trash in the truck. Ratliff
took defendant’s husband’s license, ran a records check on
him, and learned that he was a “career criminal” on postprison supervision. The conditions of defendant’s husband’s
post-prison supervision prohibited him from drinking alcohol and from having contact with defendant. Ratliff asked
defendant’s husband if she could search the vehicle, and he
agreed. Ratliff had him step out of the truck, and she patted him down. Ratliff next asked defendant to get out of the

 Cite as 271 Or App 63 (2015) 65
truck, which defendant was reluctant to do. When defendant
finally got out of the truck, she grabbed her purse and tucked
it “tightly” under her arm. At this point, as later determined
by the trial court, defendant was free to leave. She did not
leave.
 
Defendant was wearing a dress, and Ratliff did
not believe she had any weapons in her pockets. Ratliff
asked defendant if she had any weapons in her purse, and
defendant replied, “I don’t want you to search my purse.”
Defendant never told Ratliff whether or not she had weapons in her purse. In talking to defendant, Ratliff noticed
that defendant had bruxism (grinding of teeth and clenching of jaw), and a “leathery look,” and that her pupils were
dilated. Ratliff knew from her training and experience that
those were indicators of “drug use and long-term drug use.”
Additionally, according to Ratliff, the messy state of the
truck also indicated long-term drug use.
 
For safety reasons, Ratliff instructed defendant to
place her purse on the hood of Ratliff’s patrol car, which
defendant did reluctantly. When the purse was on the hood
of the patrol car, it was open, and Ratliff saw a grey digital
scale inside it.1 Based on her training and experience, Ratliff
knew that digital scales are sometimes associated with distributing controlled substances. Ratliff ran a records check
on defendant and determined that defendant had a “drug
history.” At that point, Ratliff concluded that she had probable cause to arrest defendant for possession of a controlled
substance and to search defendant’s purse for evidence of
that crime.
 
Ratliff searched defendant’s purse and removed her
wallet. Inside defendant’s wallet, Ratliff found small baggies, one of which contained methamphetamine.2 After discovering the methamphetamine, Ratliff arrested defendant
for possession of a controlled substance, and the state subsequently charged defendant with one count of possession of
methamphetamine.
 1
  The trial court did not make an explicit finding regarding who opened the
purse; rather, the court determined that it did not matter who opened the purse.
 2
  Ratliff also discovered a pipe used to smoke methamphetamine in a sunglasses case in defendant’s purse.

 66 

State v. Barker

 
Prior to trial, defendant moved to suppress evidence
of the methamphetamine, arguing that the search of her
purse violated Article I, section 9, of the Oregon Constitution,
because Ratliff lacked probable cause to arrest her. The state
argued to the trial court that Ratliff had probable cause to
arrest defendant for a drug crime and that the search of
defendant’s purse was therefore a valid search incident to
arrest.
 
At the hearing on defendant’s motion to suppress,
Ratliff testified to the above facts and summarized the factors that caused her to believe that defendant was “more
likely than not” in possession of drugs: “Inability to remain
still, dilated pupils, that leather look—leathery skin—heavy
bruxism.” Ratliff went on to note that the “innocent motoring public doesn’t generally have those indicators. They don’t
get out of the vehicle and tuck their purse tightly with them
and immediately refuse search.”
 
The trial court denied defendant’s motion and summarized its pertinent findings as follows:
  “I find that the election to stay at the scene, the officers
requiring separation of the purse from the defendant was a
lawful request. I didn’t find any evidence the officer asked
to search the purse.
  “That being the case, whether the defendant opened it
in a manner she intended the officer to see inside or it just
flopped open, as she says it did in her testimony, frankly is
irrelevant.
  “Once the officer observed the scales together with the
other indications of drug use, as testified to—which I find
credible—I believe she had probable cause to continue a
search.
  “I read the case law carefully. Counsel is correct that
drug use without more is not an appropriate basis for a
search, but I put a great emphasis in the court’s notation
and that limitation ‘without more.’
  “That doesn’t mean that someone showing obvious signs
of drug intoxication or use is not something that can be
considered in totality of the circumstances justifying an
establishment of probable cause.”

 Cite as 271 Or App 63 (2015) 67
 
Defendant appeals, arguing that the trial court
erred in denying her motion to suppress. Defendant argues
that “physical signs of drug use and drug history are not
sufficient in themselves to establish even reasonable suspicion, let alone probable cause. Nor do nervousness or the
presence of a scale add significantly to the probable cause
calculus.” (Emphasis in original.) Defendant concludes that,
not only is each factor solely insufficient to establish probable cause, but “under the totality of the circumstances in
this case, the facts are not objectively sufficient to establish
probable cause.”
 
The state responds that, “[b]ecause [Ratliff] had
probable cause to arrest defendant, the search was valid as a
search incident to arrest.” Specifically, the state argues that
“the totality of the circumstances—including defendant’s
conduct toward her purse, the digital scale in her purse,
indications that she was under the influence of drugs, and
her history of drug use—created probable cause that defendant was committing the crime of possession of a controlled
substance.” The state focuses on defendant’s conduct toward
her purse and argues that that conduct, “when combined
with the other circumstances, created probable cause that
defendant was in possession of a controlled substance and
was seeking to hide that fact from [Ratliff].”
II. ANALYSIS
A.  Legal framework
 
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[.]” A warrantless
search is per se unreasonable unless it falls within “one of
the few specifically established and well-delineated exceptions to the warrant requirement.” State v. Davis, 295 Or
227, 237, 666 P2d 802 (1983) (internal quotation marks
omitted). Search incident to arrest is one of the well-recognized exceptions. Article I, section 9, authorizes a search
incident to arrest to protect the officer’s safety, prevent the
destruction of evidence, and to discover evidence relevant to
the crime for which the defendant is being arrested. State v.
Hoskinson, 320 Or 83, 86-87, 879 P2d 1980 (1994).

 68 

State v. Barker

 
“An officer has probable cause to arrest a person
only when the officer has a substantial objective basis for
believing that, more likely than not, an offense has been
committed and the person to be arrested has committed it.” State v. Martin, 260 Or App 461, 471, 317 P3d 408
(2014) (citing State v. Owens, 302 Or 196, 204, 729 P2d 524
(1986)). It is the state’s burden to prove that a warrantless
arrest and search was supported by probable cause. ORS
133.693(4); State v. Foster, 350 Or 161, 169-70, 252 P3d
292 (2011). To do so here, the state must prove two things:
(1) that Ratliff subjectively believed that a crime had been
committed and, thus, that the purse was subject to search
and (2) that Ratliff’s belief was objectively reasonable under
the circumstances. See State v. Vasquez-Villagomez, 346 Or
12, 23, 203 P3d 193 (2009) (stating that “two components
comprise probable cause: an officer must subjectively believe
that a crime has been committed * * *, and this belief must
be objectively reasonable in the circumstances” (internal
quotation marks omitted)). Defendant concedes that Ratliff
subjectively believed that she had probable cause to arrest
defendant for possession of a controlled substance before
searching her purse. Therefore, the only issue before us is
whether the trial court erred in concluding that Ratliff’s
belief was objectively reasonable.
 
The determination of objective probable cause is a
legal, rather than factual, question. State v. Herbert, 302
Or 237, 241, 729 P2d 547 (1986). In determining whether
an officer’s belief is objectively reasonable, we examine the
totality of the circumstances, including the officer’s training
and experience. State v. Ayvazov, 246 Or App 641, 646-47,
267 P3d 196 (2011), rev den, 351 Or 675 (2012).
 
At the time that she searched defendant’s purse,
Ratliff knew that defendant (1) was in a truck that contained
many knives, lighters, and trash, which, based on Ratliff’s
experience, indicated long-term drug use; (2) had bruxism
and a “leathery look,” which, based on Ratliff’s experience,
also indicated long-term drug use; (3) was unable to remain
still and had dilated pupils, which, based on Ratliff’s experience, indicated recent drug use; (4) had a “drug history”;
(5) carried a digital scale in her purse, which, based on
Ratliff’s experience, is an item used by someone who

 Cite as 271 Or App 63 (2015) 69
distributes controlled substances; and (6) was protective of
her purse and did not want it searched. We examine those
facts individually and collectively to determine if, under
the totality of the circumstances, Ratliff’s belief that it was
more likely than not that defendant possessed a controlled
substance was objectively reasonable.
B.  Evidence of defendant’s past and current drug use
 
As mentioned, several of the factors Ratliff noted
were, in her opinion, consistent with long-term drug use.
Even assuming that is true, those factors relate primarily
to past drug use, not current possession. As we have previously held, the mere fact that a defendant has a history of
drug use does not provide an officer with reasonable suspicion to stop a defendant, let alone probable cause to search
or arrest. See State v. Frias, 229 Or App 60, 65, 210 P3d
914 (2009) (fact that the defendant was awaiting sentencing
for a drug conviction and had dark circles under his eyes,
which indicated past drug use, did not provide reasonable
suspicion that a current drug crime had occurred or was
imminent); State v. Holcomb, 202 Or App 73, 78, 121 P3d
13, adh’d to as modified on recons, 203 Or App 35, 125 P3d
22 (2005) (stating that no Oregon cases have endorsed the
proposition that “a person’s recent drug use is sufficient,
without more, to establish reasonable suspicion of present
drug possession[,]” and declining to do so because adopting the state’s position would “effectively sanction nonparticularized, status-based stops of habitual drug users”). As
such, the evidence of defendant’s past drug use—the messy
truck, bruxism, “leathery look,” and “drug history”—did not
alone provide Ratliff with reasonable suspicion, much less
probable cause, and the evidence provides little support to a
conclusion that it was more likely than not that defendant
was in current possession of a controlled substance.
 
For similar reasons, defendant’s inability to remain
still and dilated pupils also contribute little to establishing probable cause. On this point, State v. Kolb, 251 Or App
303, 283 P3d 423 (2012), is instructive. In Kolb, we examined whether signs that the defendant was under the influence of methamphetamine supported reasonable suspicion
that the defendant was in unlawful possession of a controlled

 70 

State v. Barker

substance. At the defendant’s suppression hearing, the officer
had testified that “[p]eople who usually are under the influence had to obviously take the methamphetamine. It’s very
common that they have pipes, needles, syringes, paraphernalia with them when they are under the influence.” Id. at 307.
The trial court found that it was a “fair inference” that a person under the influence of a controlled substance would have
the substance in his or her possession in the form of residue
on implements used to ingest the substance. Id. at 308.
 
We reversed, determining that the trial court had
impermissibly engaged in a “stacking of inferences” in order
to arrive at its conclusion that the officer had reasonable
suspicion. Id. at 313, 315 (internal quotation marks omitted). We characterized the premise that persons under the
influence of methamphetamine would posses and retain
implements of their drug use as “innately inferential.” And,
we determined that the “generic proposition” that retained
implements often bear evidence of prior methamphetamine
use was impermissibly speculative on the record in the case;
it was, as we described it, “a bridge never built.” Id. at 314
(internal quotation marks omitted). Therefore, we concluded
that the trial court had erred in ruling that the stop was
supported by reasonable suspicion based on the propositions
that the defendant likely still possessed the instruments
of his methamphetamine use and that those instruments
likely had methamphetamine residue on them. Id. at 315.
 
If, as we held in Kolb, evidence that a person is exhibiting signs of methamphetamine use is insufficient to give
rise to reasonable suspicion that the person is in possession
of methamphetamine, it follows that evidence that a person
who is exhibiting signs of controlled substance intoxication is
insufficient to establish probable cause to arrest the person
for possession of a controlled substance. Therefore, here, evidence of defendant’s intoxication does not contribute significantly to the totality of the probable cause calculus, absent
evidence connecting the intoxication to current possession.
C.  Defendant’s scale
 
We turn now to the remaining facts that Ratliff
relied on to search defendant’s purse—the scale in the purse

 Cite as 271 Or App 63 (2015) 71
and defendant’s protective behavior toward her purse. In
State v. Lane, 135 Or App 233, 898 P2d 1358, rev den, 322
Or 360 (1995), we examined facts similar to the facts in this
case, and as such, it is useful to both our analysis of the
significance of defendant’s scale and of the totality of the
circumstances. In Lane, two deputies stopped the defendant
in a store parking lot. The defendant was very nervous and
agitated, his hands were shaking, and he never stopped
moving during the course of the conversation with the deputies. Id. at 235. The deputies eventually arrested the defendant for driving while under the influence of alcohol. After
his arrest, the defendant refused to consent to the deputies
searching his truck. The deputies impounded the truck and
performed an inventory search. They found a gun, a marijuana pipe containing residue, a small set of scales, and a
small, black film canister. One of the deputies opened the
canister and found a plastic bag with methamphetamine
inside it. Id. at 236.
 
The issue on appeal in Lane was whether the defendant’s nervous and agitated manner, the marijuana pipe
with marijuana residue, the scale, and the film canister
gave the deputy probable cause to believe that the defendant
was in possession of a controlled substance, such that the
deputy could open the closed film canister as a search incident to arrest. Id. at 239-41. We concluded that the deputies
did not have objectively reasonable probable cause to arrest
the defendant for possession of a controlled substance, and,
therefore, the search of the film canister was not a valid
search incident to arrest. Id. at 240-41.
 
First, we noted that, “[b]ecause possession of less
than an ounce of marijuana is a violation, for which a person may not be arrested, probable cause to arrest could not
have been based solely on the residue of marijuana discovered in the pipe.” Id. at 239-40 (citations omitted; emphasis
added). Next, because the record in Lane did not indicate
where the scale was located in proximity to the marijuana
pipe or film canister, we concluded that “the scale adds little to support a finding of probable cause.” Id. at 240. As
for the film canister itself, we determined that it was “not
the type of container that is so uniquely associated with the

 72 

State v. Barker

storage and transportation of controlled substances that it,
alone, might provide an officer with training and experience
probable cause to believe that it contains a controlled substance.” Id. (internal quotation marks and footnote omitted).
Finally, after determining that each individual factor could
not alone provide the deputy with objective probable cause,
we concluded that, “even considered collectively, the marijuana residue, the film canister, and the scale, along with
defendant’s nervousness and agitation, did not provide an
objectively reasonable basis to believe that defendant was
in possession of either marijuana or some other controlled
substance[.]” Id. at 240-41.
 
This case is akin to Lane. Thus, as in Lane, we conclude that evidence that defendant had used controlled substances in the past, was exhibiting signs of current intoxication (like the defendant in Lane, she was unable to stand
still), and was in possession of a scale was insufficient to
give rise to probable cause to arrest defendant for current
possession of a controlled substance. Moreover, as in Kolb,
the record in this case lacks evidence to support an objectively reasonable inference that, even if the scale was used
in connection with controlled substances, it was more likely
than not that defendant was in current possession of controlled substances, as residue on the scale or otherwise. See
Kolb, 251 Or App at 315.
D.  Defendant’s protective behavior toward her purse
 
Finally, we examine defendant’s behavior toward
her purse. The state argues that “[t]he strongest indicator that defendant was in possession of drugs was her conduct towards her purse.” The state asserts that defendant’s
behavior toward her purse makes this case similar to State
v. McCoy, 155 Or App 610, 964 P2d 309 (1998), and State
v. Smith, 97 Or App 114, 775 P2d 335, rev den, 308 Or 315
(1989). In McCoy, we determined that an experienced narcotics officer had probable cause to search the defendant’s
coat when the defendant was in a high drug-trafficking
area, the defendant’s appearance indicated both long-term
and more recent drug use, the defendant was wanted for a
methamphetamine crime, and the defendant was anxious to
get rid of his coat, even though it was a cold night. 155 Or

 Cite as 271 Or App 63 (2015) 73
App at 615-16. Specifically, the defendant in McCoy tried to
give his coat to a woman outside his building after the officer informed the defendant that he was going to take him
into custody. Id. at 613. In Smith, we determined that an
officer had probable cause to search a black compact that
the officer found in one of the defendant’s boots during a jail
inventory search, because, among other reasons, the defendant was concealing the compact. 97 Or App at 116-17.
 
We are not persuaded that this case is analogous
to McCoy or Smith; rather, defendant’s behavior resembles
that of the defendant in State v. Lavender, 93 Or App 361,
762 P2d 1027 (1988). In Lavender, we held that an officer’s
search of the defendant’s purse was not objectively reasonable when the defendant had a prior drug offense, appeared
to be under the influence of drugs, and attempted to conceal
the contents of her purse. 93 Or App at 364. Specifically,
when the defendant was retrieving her identification from
her purse, the officer shined a light into it and the defendant
quickly closed the purse and moved it, as to conceal its contents. Id. at 363. Regarding the defendant’s behavior toward
her purse, we stated that,
“[m]ost importantly, the fact that defendant closed her
purse and pulled it away from the officers could not support
probable cause to believe that she had committed a crime.
By that act, defendant exhibited her intention to protect
the privacy of her purse. The assertion of a constitutionally
protected right against warrantless searches cannot be a
basis for such a search.”

Id. at 364. Here, defendant’s behavior of tightly clutching
her purse and refusing a search manifested a similar desire
to protect the privacy of the item and, as such, was an assertion of her constitutional rights.
 
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,
110 Or App 604, 611, 825 P2d 282 (1992). Although furtive behavior may contribute to probable cause, asserting a

 74 

State v. Barker

constitutionally protected privacy right cannot.3 Defendant’s
protective behavior to safeguard the privacy of her purse
and her statement that she did not want it searched are not
properly considered as part of the totality of the circumstances and may not contribute to probable cause.
III. CONCLUSION
 
With defendant’s behavior toward her purse removed
from the probable cause calculus, all that remains is the
evidence of defendant’s historical and recent drug use—
behavior that fails to establish even reasonable suspicion of
possession of a controlled substance—and the scale located
in defendant’s purse. Thus, as explained above, this case
presents a similar constellation of facts to those we determined to be insufficient to establish probable cause in Lane.
135 Or App at 240-41 (stating that “considered collectively,
the marijuana residue, the film canister, and the scale, along
with the defendant’s nervousness and agitation, did not provide an objectively reasonable basis to believe that defendant was in possession of either marijuana or some other
controlled substance”). Therefore, under the totality of the
circumstances, Ratliff’s belief that defendant more likely
than not possessed a controlled substance was not objectively reasonable, and the search violated Article I, section
9. Accordingly, the trial court erred in denying defendant’s
motion to suppress.
 

Reversed and remanded.

 3
  Compare State v. Diaz, 29 Or App 523, 533-35, 564 P2d 1066 (1977) (officer
had sufficient information to justify a warrantless search of a film canister when
the defendant, after being arrested for receiving stolen property and after the
police found drugs in his house, nudged a film canister to another resident and
told her to get the film developed), with State v. Gressel, 276 Or 333, 339, 554 P2d
1014 (1976) (“[A] suspicion, however well founded, having been aroused merely
on the basis of an assertion of one’s constitutional rights [not to be searched],
can play no part in creating probable cause for a search.”), State v. Farrar, 252
Or App 256, 262, 287 P3d 1124 (2012) (the defendant’s refusal to consent to a
search of her purse did not contribute to establishing reasonable suspicion), State
v. Medinger, 235 Or App 88, 94, 230 P3d 76 (2010) (the defendant’s refusal to
answer the officer’s questions was not “strange” or “furtive”; rather, it was the
exercise of a constitutionally protected right, and therefore did not affect the
probable cause analysis), and State v. Wise, 72 Or App 58, 62 n 3, 695 P2d 68
(1985) (“A refusal to consent to a search cannot aid in showing probable cause for
a search.”).