OR: Def being under influence of drugs isn’t per se RS he’s in possession

Defendant was likely under the influence, but the officer lacked reasonable suspicion that he was in possession of drugs for the detention. State v. Davis, 286 Ore. App. 528, 2017 Ore. App. LEXIS 861 (July 6, 2017):

Therefore, other than Powers’s observation that, based on his training and experience, defendant was exhibiting signs of controlled substance intoxication, none of the other facts articulated by Powers add much of anything to the reasonable suspicion calculus when considered in isolation. And, even when we consider those facts—as we must—in the totality of the circumstances, we conclude that they do not provide the “something more” that is necessary to demonstrate objectively reasonable suspicion that defendant possessed drugs.

To recap, defendant’s nervousness and his “suspicious” explanation of his travel plans add nothing to objectively reasonable suspicion of drug possession. Similarly, defendant’s “rummaging” behavior adds nothing to the calculus because, although certain “indexing” behaviors can contribute to suspicion of possession of drugs or contraband, Powers’s explanation in this case was that defendant’s rummaging behavior was concerning for officer safety reasons, not indicative of contraband possession. And finally, Powers’s vague explanation that the location of the stop was a “known thoroughfare for drug users, drug dealers” adds very little to the calculus—at least, in the absence of other specific and articulable facts about the encounter that show defendant’s presence at that location was suggestive of drug possession.

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