State v. Holdorf

812 August 7, 2014 No. 52

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

JOHN LEONARD HOLDORF, JR.,

Respondent on Review.

(CC 09061153; CA A144719; SC S060766)

En Banc

On review of a decision of the Court of Appeals.*

Argued and submitted June 13, 2013.

Leigh A. Salmon, Assistant Attorney General, Salem,

argued the cause and filed the brief for petitioner on review.

With her on the brief were Ellen F. Rosenblum, Attorney

General, and Anna M. Joyce, Solicitor General.

Alice Newlin-Cushing, Deputy Public Defender, Salem,

argued the cause and filed the brief for respondent on review.

With her on the brief was Peter Gartlan, Chief Defender,

Office of Public Defense Services.

BALDWIN, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

______________

*  Appeal from Linn County Circuit Court, Glen D. Baisinger, Judge. 250 Or

App 509, 280 P3d 404 (2012).

Cite as 355 Or 812 (2014) 813

Defendant was convicted of possession of marijuana, ORS 475.864(3), and

possession of methamphetamine, ORS 475.894, after an officer stopped a vehi-

cle in which defendant was a passenger and conducted a warrantless search of

defendant. Prior to trial, defendant sought to suppress evidence obtained during

the search. The trial court denied the motion, concluding that the officer had

reasonable suspicion to stop defendant for suspected drug crimes. The Court of

Appeals reversed that decision, concluding that the officer lacked reasonable sus-

picion because the officer’s observations relating to defendant were limited to

defendant’s nervous and fidgety behavior. The court reasoned that such behav-

ior, although consistent with methamphetamine use, could be caused by other

non-incriminating factors. The court further reasoned that the officer could not

infer that defendant was engaged in drug activity based on the suspected drug

activities of the vehicle’s driver, because that information was too speculative

and indirect. Held: (1) The officer who stopped defendant could reasonably con-

sider, under the totality of the circumstances, information that other officers had

shared regarding the suspected drug activities of the driver of the vehicle; and

(2) the officer’s observation that defendant appeared to be under the influence of

methamphetamine, based on the officer’s training and experience, together with

the other information on which the officer properly relied, was sufficient to estab-

lish reasonable suspicion that defendant had committed the crime of possession

of methamphetamine.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is affirmed.

814 State v. Holdorf

BALDWIN, J.

Defendant was convicted of possession of marijuana,

ORS 475.864(3), and possession of methamphetamine, ORS

475.894, after police officers stopped him and discovered

those controlled substances on him. The trial court con-

cluded that the officer who stopped defendant had a reason-

able suspicion that defendant was involved in criminal drug

activity and denied defendant’s motion to suppress evidence

of the drugs. The Court of Appeals reversed, holding that

the officer did not have a reasonable suspicion of drug activ-

ity. State v. Holdorf, 250 Or App 509, 280 P3d 404 (2012).

We allowed review to determine whether, at the

time of the stop, the officer had a reasonable suspicion that

defendant was involved in criminal drug activity and, in

particular, (1) whether the officer who stopped defendant

could rely on factual information provided to him by other

officers to establish “reasonable suspicion,” and (2) whether

the officer’s observation that defendant appeared to be under

the influence of methamphetamine, based on the officer’s

training and experience, was sufficient to establish “reason-

able suspicion” that defendant had committed the crime of

possession of methamphetamine when considered under the

totality of the circumstances. We answer those questions in

the affirmative, reverse the decision of the Court of Appeals,

and affirm the judgment of the trial court.

In reviewing a denial of a motion to suppress, we

are bound by the trial court’s findings of historical fact that

are supported by evidence in the record. State v. Stevens, 311

Or 119, 126, 806 P2d 92 (1991). If the trial court “[does] not

make findings on all pertinent historical facts and there is

evidence from which those facts could be decided more than

one way, we will presume that the trial court found facts

in a manner consistent with its ultimate conclusion.” Id. at

127 (citing Ball v. Gladden, 250 Or 485, 487, 443 P2d 621

(1968)). On review, our role is to decide whether the trial

court correctly applied the law to those historical facts. State

v. Peller, 287 Or 255, 260, 598 P2d 684 (1979); see also State

v. Ehly, 317 Or 66, 80, 854 P2d 421 (1993) (stating standard

of review for “reasonable suspicion”).

Cite as 355 Or 812 (2014) 815

I. BACKGROUND

Albany Police Detective Davis was on duty when

he observed a blue SUV occupied by Watts, who was driv-

ing, and defendant, a passenger. Davis recognized Watts,

but he did not recognize defendant. Davis was familiar with

Watts as a suspect through Davis’s ongoing investigation of

a local methamphetamine distribution ring. Davis also had

received reports about Watts from Officer Fandrem, who

had observed an occupant of the same SUV engage in an

apparent drug deal two weeks earlier. On a separate occa-

sion after that observation, Fandrem had attempted to stop

Watts in the SUV, but Watts eluded capture after a high-

speed chase. Davis also knew that Watts had been convicted

of a felony and had an outstanding warrant for violating

parole.

Davis put out a call to alert other officers in the

area about Watts. Albany Police Officer Salang responded

to that call. Davis gave Salang a description of the vehicle

and told Salang that Watts was a criminal suspect in an

ongoing drug investigation. Salang knew Watts from prior

encounters and knew that Watts was a convicted felon with

an outstanding warrant.

Shortly thereafter, Salang spotted Watts driving

the SUV. Salang followed the SUV until he observed Watts

commit a traffic infraction. He then activated his overhead

lights and stopped the SUV. Salang called for backup before

he approached the vehicle.

While Salang was talking to Watts, he observed

that defendant “appear[ed] very nervous” and “very fid-

gety,” and was “making minimal eye contact” with him. To

Salang, defendant appeared to be “tweaking,” meaning that

he appeared to be under the influence of methamphetamine.

Salang requested defendant’s name and date of birth, which

defendant provided.

Salang then ran warrant checks on Watts and

defendant. Dispatch confirmed that Watts had a warrant for

his arrest. Defendant, however, was “clear” of any warrant.

Defendant asked if he could leave, and Salang told him that

he could not leave at that time. At that point, Salang was still

816 State v. Holdorf

waiting for backup officers to arrive. After backup arrived,

the officers removed Watts from the SUV and secured him

in a patrol car.

Salang then returned to the SUV, where defendant

was still seated in the passenger seat. At that time, Salang

was preparing to perform an inventory of the vehicle for a

nuisance tow. He asked defendant if there were any weapons

or contraband in the vehicle. Defendant responded that there

was a knife between the seat and the door. Defendant opened

the passenger door and Salang saw the knife slide down

between the seat and door jam. Defendant stepped out of the

vehicle and Salang conducted a “pat down” search of defen-

dant. He found a second knife and three small metal contain-

ers in defendant’s pockets. Quantities of marijuana and meth-

amphetamine were subsequently found inside the containers.

Defendant was arrested and charged with one

count each of unlawful possession of marijuana, ORS

475.864(3), and unlawful possession of methamphetamine,

ORS 475.894. Prior to trial, defendant moved to suppress

the evidence obtained during the warrantless search and

seizure of his person.1 At the hearing on defendant’s motion,

Detective Davis and Officer Salang testified. Davis testified

to his training and experience investigating narcotic crimes,

and explained the information that he gave to Salang about

Watts. Salang testified that, during his law enforcement

career, he had regular contact with people who possess or

are under the influence of methamphetamine, and that he

was familiar with common practices relating to the use of

methamphetamine.

After considering the evidence, the trial court

denied defendant’s motion. The trial court concluded that

Salang had a reasonable suspicion to stop defendant for sus-

pected drug crimes and that Salang’s safety concerns jus-

tified keeping defendant at the scene when he requested to

1

Although defendant raised a number of issues in his motion to suppress

relating to inculpatory statements that he made and drug evidence that was

seized, his assignments of error in the Court of Appeals were limited to the valid-

ity of the stop (i.e., the seizure of his person) by Salang. The parties agree that the

stop occurred when defendant asked if he could leave and Salang told defendant

that he could not. Defendant contends that his statements and the drug evidence

should have been suppressed because the stop was illegal.

Cite as 355 Or 812 (2014) 817

leave. Defendant then entered a conditional guilty plea pur-

suant to ORS 135.335(3) and reserved his right to challenge

on appeal the trial court’s denial of his pretrial motion to

suppress.

On appeal, the Court of Appeals concluded that the

specific and articulable facts in this case did not support a

reasonable suspicion that defendant was involved in crim-

inal activity when he was stopped. It noted that the only

fact cited by Salang that directly related to defendant, as

opposed to the SUV or Watts, was defendant’s nervous, fid-

gety demeanor. It reasoned that, even if those characteris-

tics could, in some circumstances, be an indicator of pres-

ent methamphetamine possession, defendant’s demeanor,

although consistent with methamphetamine use, could be

caused by other non-incriminating factors. Holdorf, 250 Or

App at 514. The court further concluded that defendant’s

seizure was not justified by officer safety concerns because

all danger had dissipated by the time backup officers had

arrived and Watts was arrested.2 Id. at 515.

II. ANALYSIS

A.  “Reasonable Suspicion” Standard

Defendant based his motion to suppress on ORS

131.615(1) and Article I, section 9, of the Oregon Constitution.3

We therefore first examine the statute establishing the stan-

dard that police officers are required to follow when making

an investigatory stop of a person. ORS 131.615(1) provides:

“A peace officer who reasonably suspects that a person

has committed or is about to commit a crime may stop the

person and, after informing the person that the peace offi-

cer is a peace officer, make a reasonably inquiry.”

2

The state did not seek review of the Court of Appeals’ determination that

the stop was not justified based on officer safety concerns. Holdorf, 250 Or App at

515. Therefore, the only issue for our determination is whether Officer Salang’s

seizure of defendant was based on a reasonable suspicion of criminal activity.

3

Article I, section 9, provides:

“No law shall violate the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable search, or seizure; and no

warrant shall issue but upon probable cause, supported by oath, or affirma-

tion, and particularly describing the place to be searched, and the person or

thing to be seized.”

818 State v. Holdorf

An officer “reasonably suspects” criminal conduct when the

officer

“holds a belief that is reasonable under the totality of the

circumstances existing at the time and place the peace offi-

cer acts * * *.”

ORS 131.605(6).

As previously mentioned, this dispute is limited to

whether Officer Salang reasonably suspected that defen-

dant had committed or was about to commit a crime when

he stopped defendant to investigate. Other provisions of the

statutory framework relating to the permissible scope of the

stop and frisk of persons, ORS 131.605 to 131.625, are not at

issue in this case.

As this court has observed, ORS 131.615 was a leg-

islative effort to codify state and federal case law permitting

the temporary and limited restraint on liberty interests by

police officers incident to investigatory stops. State v. Valdez,

277 Or 621, 625, 561 P2d 1006 (1977). Specifically, the legis-

lation was intended as

“ ‘a codification of the peace officer’s ability to stop a person

as close to the Terry [v. Ohio, 392 US 1, 88 S Ct 1868, 20

L Ed 2d 889 (1968)] and [State v. Cloman, 254 Or 1, 456

P2d 67 (1969)] rationale as possible while giving the courts

leeway to interpret the protean situations that arise and

giving the officer limited “stopping” powers.’ ”

Valdez, 277 Or at 625 (quoting the commentary to the final

draft of the Proposed Oregon Criminal Procedure Code)

(footnotes omitted). The codification contemplated

“ ‘* * * an objective test in the forefront of the stop deter-

mination. In other words, the test should be what a reason-

able officer would think in this situation and not what this

particular arresting officer thought.’ ”

Id. at 625-26 (quoting from the commentary to the final

draft of the Proposed Oregon Criminal Procedure Code)

(emphasis omitted).

This court has held that an analysis of a defen-

dant’s rights under ORS 131.605 to 131.625 is substantially

the same as an analysis of a defendant’s rights under the

Cite as 355 Or 812 (2014) 819

search and seizure provisions of the Oregon and federal

constitutions. State v. Kennedy, 290 Or 493, 497, 624 P2d

99 (1981); see also State v. Toevs, 327 Or 525, 534, 964 P2d

1007 (1998) (so stating). In 1997, the legislature limited the

authority of courts to exclude relevant evidence in a crim-

inal action “on the grounds that it was obtained in viola-

tion of any statutory provision” unless exclusion is required

by the Oregon or federal constitution, the rules of evidence

governing privileges and hearsay, or the rights of the press.

ORS 136.432. Accordingly, our review in this case is limited

to whether Article I, section 9, of the Oregon Constitution

requires exclusion of the evidence identified in defendant’s

motion to suppress.

In Valdez, this court considered an Article I, section

9, challenge after police officers stopped the defendant when

the defendant and two other men placed a paper bag into

the trunk of an automobile in a part of town that the officers

considered “to be one with a high incidence of vice activity.”

277 Or at 623. The officers “had never seen any of the three

men before and knew nothing of them,” but considered the

suspects’ dress “like a typical pusher” and “not typical of

persons found in the area.” Id. at 623-24. The court held

that the instinct and experience of the officers did not pro-

vide a sufficient basis for “reasonable suspicion” under ORS

131.615(1), without articulable facts pointing to criminal

activity that could be objectively evaluated. Id. at 628. The

court contrasted those circumstances with the facts in Terry

and Cloman, where the stops were based on a reasonable

suspicion of criminal activity:

“It is apparent that in both Terry and Cloman the offi-

cers who stopped the defendants for questioning concern-

ing criminal activity had a much greater fund of suspicious

activity to justify objectively their suspicion of criminal

activity than had the officers in the present case. Here there

is insufficient evidence suggesting criminal activity which

can be objectively evaluated. We do not have persons who

‘didn’t look right’ repetitively taking turns conferring and

looking surreptitiously into a store, nor do we have known

copper wire thieves unloading copper wire into a private

garage in the middle of the night. In this case we have per-

sons who ‘didn’t look right’ putting a paper bag into the

trunk of an automobile—a not too remarkable action.

820 State v. Holdorf

“We recognize that the statutory standard for the stop-

ping and questioning of a person concerning his possible

criminal activity was intended to be less than the stan-

dard for probable cause to arrest. We also recognize that

experienced police develop what amounts to an intuitive

sixth sense about matters of this kind. As the officer tes-

tified, ‘he * * * looked real sharp * * * like a typical pusher,

to me.’ Such instinct and experience cannot, however, form

the entire basis for ‘reasonable suspicion,’ because no prac-

tical control can be exercised over police by courts if, in

the absence of any very remarkable activity, the officer’s

instinct and experience may be used as the sole reason to

justify infringement upon the personal liberty sought to be

protected by the statute.”

Valdez, 277 Or at 627-28. Thus, in Valdez, an objective

review of the totality of the circumstances confronting the

officers did not provide a basis for a reasonable suspicion

that criminal activity was afoot.

We also reviewed the constitutionality of a stop in

State v. Lichty, 313 Or 579, 835 P2d 904 (1992). In Lichty,

a clerk in a convenience store found the defendant’s wallet

containing a plastic baggy of cocaine. The store owner told

a police officer that “  just found this wallet in the store,

‘I

* * * a bag of coke fell out of it,’ ” and that the defendant had

claimed the wallet. Id. at 584. The court rejected the defen-

dant’s argument that, “because Storie [the store owner] was

not an expert in drug identification and the officer knew

that she was not such an expert, the officer could not reason-

ably rely on Storie’s statement that she saw cocaine, at least

without further inquiry.” Id. at 585. In concluding that the

police officer had reasonable suspicion to stop the defendant,

the court explained:

“People often speak in the shorthand of opinions or con-

clusions, not in the form of a recitation of pure fact. There

was evidence presented in this case that members of soci-

ety have a general knowledge regarding the appearance of

cocaine. Storie testified that she believed that the powdery

substance in the bag that she saw was cocaine because

of her knowledge as to the appearance of cocaine from

‘[w]atching the news, [and] watching t.v. programs. You see

it every day on the news.’ When Storie, a named informant,

told [Officer] Derby that she saw ‘a bag of coke,’ she was

Cite as 355 Or 812 (2014) 821

saying that she saw a transparent bag, small enough to be

put in a wallet, that contained a white powdery substance.

Having heard that statement, it was reasonable for Derby

to add his own expertise concerning the way illegal drugs

are carried and to infer that the white powdery substance

could be cocaine. Defendant and his companion then drove

up and claimed the right to possess the wallet. These facts

gave Derby a reasonable suspicion that defendant’s wallet

contained cocaine and that defendant therefore was com-

mitting a crime.”

Id. (emphasis in original).

Finally, in State v. Ehly, 317 Or 66, 854 P2d 421

(1993), police officers who were called to a motel recognized

the defendant, an unruly guest, as a convicted felon and

ordered him to back away from a gym bag that he was reach-

ing into. The state conceded, and the court agreed, that the

defendant “was stopped and thus was ‘seized’ when Corporal

Cleaves put her hand on her gun and ordered defendant to

‘back up,’ and he submitted to that show of police authority.”

Id. at 79. The court explained its conclusion that the officers

had reasonable suspicion to justify the stop:

“Applying the reasonable suspicion standard to the

facts in this case, the specific and articulable facts that

support the officers’ reasonable inference that defendant

had committed a crime are the following: Immediately

before Corporal Cleaves put her hand on her gun and

ordered defendant to ‘back up,’ the officers were confronted

by a person whom they knew had prior felony convictions,

whom they knew to be a methamphetamine user, and who

appeared at that time to be under the influence of metham-

phetamine. Corporal Cleaves knew that many people who

use illegal narcotics possess guns. When she saw defen-

dant reaching into the gym bag with both his hands con-

cealed, she thought that he had a gun. The officer knew

that defendant was a friend of Gene Gammond and that

defendant and Gammond were ‘running together.’ They

also had reason to believe that Gammond was armed with

an automatic handgun, and they had seen him drive out

of the motel parking lot only minutes earlier. The officers

reasonably could have believed that the gym bag belonged

to Gammond and that it contained Gammond’s automatic

handgun. The gym bag was large enough to have contained

a weapon. When Officer Emerson asked defendant why he

822 State v. Holdorf

did not just dump the gym bag’s contents on the bed and

look for the key, defendant did not respond. Moreover, after

telling the officers that the gym bag was not his, defendant

continued to rummage through the gym bag with both his

hands concealed. Considering the totality of those circum-

stances, we conclude that Corporal Cleaves had an objec-

tively reasonable suspicion that defendant had committed

the crime of felon in possession of a firearm.”

Id. at 80-81 (footnote omitted).

In concluding that the officers reasonably suspected

criminal activity, the court observed that “[w]hether the

suspicion is reasonable often will depend on the inferences

drawn from the particular circumstances confronting the

officer, viewed in the light of the officer’s experience.” Id. at

80 (citing Terry, 392 US at 21-22, 27-30). The court made

its determination based on the “specific and articulable

facts that support[ed] the officer’s reasonable inference that

defendant had committed a crime.” Id. The court concluded

that the officers “held a belief that was objectively reason-

able under the totality of the circumstances existing at that

time and place, that defendant had committed a crime.”4 Id.

at 79 (emphasis added).

To summarize: The people have a liberty interest

to be free from unreasonable searches and seizures that is

4

That standard mirrors the rationale of Terry:

“[I]n justifying the particular intrusion the police officer must be able to

point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion. The scheme

of the Fourth Amendment becomes meaningful only when it is assured that

at some point the conduct of those charged with enforcing the laws can be

subjected to the more detached, neutral scrutiny of a judge who must evalu-

ate the reasonableness of a particular search or seizure in light of the par-

ticular circumstances. And in making that assessment it is imperative that

the facts be judged against an objective standard: would the facts available to

the officer at the moment of the seizure or the search warrant a man of rea-

sonable caution in the belief that the action taken was appropriate? Anything

less would invite intrusions upon constitutionally guaranteed rights based

on nothing more substantial than inarticulate hunches, a result this Court

has consistently refused to sanction. And simple good faith on the part of

the arresting officer is not enough. *  * If subjective good faith alone were

*

the test, the protections of the Fourth Amendment would evaporate, and the

people would be secure in their persons, houses, papers, and effects, only in

the discretion of the police.”

392 US 21-22 (footnotes, internal citations, and internal quotation marks omit-

ted; omission in original).

Cite as 355 Or 812 (2014) 823

protected by provisions of the Oregon and federal constitu-

tions. The standard of “reasonable suspicion” justifying a

police intrusion on that liberty interest when a person is

stopped was intended to be less than the standard of prob-

able cause to arrest. A stop is unlawful unless it meets an

objective test of reasonableness based on observable facts.

Officer intuition and experience alone are not sufficient to

meet that objective test. However, if an officer is able to point

to specific and articulable facts that a person has committed

a crime or is about to commit a crime, the officer has a “rea-

sonable suspicion” and may stop the person to investigate.

B.  Officer Salang’s Reliance on Information from Other

Officers

With the above understanding in mind, we turn to

the specific questions before us on review. We begin with our

first question: Could Officer Salang, in stopping defendant,

rely on the factual information provided to him by other

police officers to establish reasonable suspicion?

As previously mentioned, Officer Salang relied on

information provided to him by Detective Davis, who had

observed defendant as a passenger in a blue SUV driven by

Wattsr. Davis was familiar with Watts as a current suspect

in an ongoing investigation of a local methamphetamine

distribution ring. Davis also knew that Watts was wanted

on an outstanding warrant for violating parole following a

felony conviction. Davis put out a call to alert officers that

Watts should be pulled over, and he provided the above

background information to Salang, who responded to the

call and pulled Watts over after he observed Watts commit a

traffic infraction.

The trial court concluded that Salang had reason-

able suspicion to stop defendant for a suspected drug crime.5

Thus, the trial court implicitly credited the information

from Davis that Salang relied upon as part of the totality of

the circumstances justifying the stop. The Court of Appeals,

5

The trial court did not make detailed findings of fact on the issue of

Salang’s reasonable suspicion. However, as we explain, the findings made by the

trial court were sufficient to support its conclusion that the stop was justified by

reasonable suspicion.

824 State v. Holdorf

however, rejected that information from Davis and the other

officers:

“[W]e conclude that Salang did not have reasonable sus-

picion that defendant was involved in criminal activity

at the time he was stopped. The only fact cited by Salang

that relates to defendant himself, as opposed to the SUV

or Watts, is his nervous, fidgety demeanor. * * * And as for

Watts and the extent to which being in his proximity might

indicate ongoing criminal activity by defendant, it is sig-

nificant that the only criminal activity that Salang knew

Watts was engaged in was being in violation of his parole.

He apparently had heard second-hand information that

Watts was suspected of methamphetamine distribution.

The information about the parking-lot drug transaction

was something that Salang heard from Davis who heard

it from a third officer who was not even certain about what

he had seen. The information about the SUV was similarly

indirect and speculative.”

Holdorf, 250 Or App at 514-15 (emphasis in original).

Read strictly, the above analysis appears to reject

any information pointing to criminal activity that did

not “relate[  to defendant himself” or was not personally

]

observed by Officer Salang. Id. at 514. However, our case

law does not require such a truncated approach to judi-

cial review for “reasonable suspicion.” Rather, our case law

requires an objective review of observable facts to determine

whether a police stop is justified by “reasonable suspicion.”

That judicial review looks to the totality of the circumstances

confronting a police officer and not just those circumstances

that directly relate to a suspect or are personally observed

by the police officer stopping a suspect.

In considering the totality of the circumstances

confronting them, police officers often reasonably rely on

information provided to them by other officers to determine

whether to stop a suspect. We have recognized that there are

circumstances where a police officer may act based on the

shared knowledge of the police when effectuating an arrest:

“The collective knowledge doctrine focuses on the shared

knowledge of the police as a unit rather than merely on the

knowledge of the officer who acts. The doctrine therefore

Cite as 355 Or 812 (2014) 825

permits a police officer to act if the officer reasonably relies

on instructions from an officer who has probable cause.”

State v. Soldahl, 331 Or 420, 427, 15 P3d 564 (2000). That

recognition “in no way undermines the probable cause

requirement. The doctrine merely views law enforcement

agencies as a unit.” Id. at 428. We hold that the collective

knowledge doctrine also applies when a police officer rea-

sonably relies on information from other officers in making

a determination that a stop is justified based on articula-

ble facts that criminal activity is afoot. See generally Lichty,

313 Or at 585 (totality of circumstances considered by police

officers included reasonable reliance on information from

informant).

To be sure, a court must ultimately determine

whether a police officer has “point[ed] to specific and artic-

ulable facts that give rise to a reasonable inference that

a person has committed [or is about to commit] a crime”

to justify a stop. Ehly, 317 Or at 80. However, courts must

consider the “totality of the circumstances” confronting an

officer in making that determination. Id. at 79. Thus, the

Court of Appeals erred to the extent that it did not consider

the information that Salang had received from other officers

as circumstances to weigh in its ultimate determination of

whether there was reasonable suspicion for Salang to stop

defendant. That information included the shared knowledge

of Davis and other officers about Watts and the SUV. See

Soldahl, 331 Or at 427.

C.  Officer Salang’s Opinion That Defendant was Under the

Influence of Methamphetamine

We now turn to our second question on review: Was

Officer Salang’s observation that defendant appeared to

be under the influence of methamphetamine, based on his

training and experience, together with other information

on which the officer properly relied, sufficient to establish

a reasonable suspicion that defendant had or was about to

commit a crime?

As mentioned, Officer Salang testified that, in his

opinion, defendant was under the influence of methamphet-

amine at the time of the stop. Salang stated that defendant

826 State v. Holdorf

was nervous and fidgety, avoided eye contact with him, and

looked like he was “tweaking”:

“Q.  And do you make any—you identify that he’s male,

any other things that you recognize or that you notice

about the passenger?

“A.  He was appearing very nervous when I first contacted

him, making minimal eye contact with myself when

I was talking to Mr. Watts at first, and then when I’d

talk to him. He was very fidgety.

“Q. Fidgety?

“A. Yeah.

“Q.  When *  * making eye contact, not making eye con-

*

tact, describe that for us, what you mean by he’s not

making eye contact. Is it—is it out of the ordinary?

“A.  It’s out of the ordinary when you speak to a person for

them not to look at you. He kept kind of looking down

or straight when I was asking him for his name.

Kind of would just look at me for a second and then

look away. I also noticed that his hands were—he

was kind of doing this (indicating) a little bit, which

appeared—for me it appeared that he was nervous

about something.

“Q. Did he appear to be under the influence of

methamphetamine?

“A. Yes.

“Q.  You used previously the term ‘tweaking’?

“A. Mmm-hmm.

“Q.  Did it appear he was tweaking?

“A. Yes.”

Officer Salang also testified about his training and

experience as a police officer and, in particular, about his

experience with users of methamphetamine:

“Q.  Can you give us a thumbnail sketch of your back-

ground, training and experience in law enforcement?

“A.  I’ve been with the Albany Police Department for

almost five years. I am now a school resource officer.

Prior to that I was a patrol officer for about four and

Cite as 355 Or 812 (2014) 827

a half years. Prior to being a patrol officer, I was a

corrections deputy for Lincoln County for almost two

years serving in the jail. Prior to that about ten years

experience in juvenile corrections in different capac-

ities as a juvenile probation officer, detention worker,

and various types of work.

“Q.  And in each of those jobs have you come in contact

on a fairly regular basis with people who possess

methamphetamine, may be under the influence of

methamphetamine, and are you familiar with the

patterns and practices of methamphetamine dealing

and possession and use?

“A.  Yes, both in my patrol duties and corrections when

they come in in the booking.

“Q.  And what kinds of behaviors do you see when

you see someone who is under the influence of

methamphetamine?

“A.  Someone that might be fidgety, we have a term,

tweaking, someone that might not have been sleep-

ing for days because of the [sic] under the influence

of the methamphetamines.

“Q.  Is it a pretty distinct look?

“A. Yes.”

By concluding that Officer Salang’s stop of defen-

dant was supported by reasonable suspicion, the trial court

implicitly credited Salang’s observations of defendant’s dis-

tinct behavior and Salang’s training and experience related

to methamphetamine use by criminal suspects.6 Those were

articulable facts that the court considered along with other

specific and articulable facts relating to Watts, a current

suspect in an ongoing investigation of a local methamphet-

amine distribution ring.

6

In addition to testifying that defendant’s behavior, particularly defendant’s

“tweaking,” was consistent, based on Salang’s training and experience, with the

behavior of methamphetamine users that he had previously observed, Salang

gave his opinion that defendant was under the influence of methamphetamine at

the time of the stop. That opinion was received by the trial court without objec-

tion. Therefore, Salang’s competency as a witness to give that opinion was not

raised as a contested issue in this case.

828 State v. Holdorf

From its inception, the “reasonable suspicion” stan-

dard has included a proper regard for the experience that

police officers bring with them when they encounter crim-

inal suspects. The “reasonable suspicion” standard applies

to a police officer acting in his or her official capacity when

stopping a person that the officer reasonably suspects “has

committed or is about to commit a crime.” ORS 131.615(1);

see also ORS 131.605 (peace officer defined as the meaning

given in ORS 133.005). This court has quoted the follow-

ing from the commentary to the final draft of the Proposed

Oregon Criminal Procedure Code:

“ ‘* * *[W]hen an officer observes unusual conduct which

leads him reasonably to conclude in light of his experience

that criminal activity is afoot and when he is able to point

to specific and articulable facts which give rise to the infer-

ence that criminal activity is afoot, the officer has ‘rea-

sonable suspicion’ and hence can stop the individual for

investigation.’ ”

Valdez, 277 Or at 626 (emphasis added).

Indeed, this court has expressly stated that “[w]hether

[a police officer’s] suspicion is reasonable often will depend

on the inferences drawn from the particular circumstances

confronting the officer, viewed in the light of the officer’s

experience.” Ehly, 317 Or at 80 (citing Terry, 392 US at

21-22); see also id. at 79 (totality of circumstances for offi-

cers included observation that suspect appeared to be under

the influence of methamphetamine); Lichty, 313 Or at 585

(“Having heard that statement [from an informant], it was

reasonable for [Officer] Derby to add his own expertise con-

cerning the way illegal drugs are carried and to infer that

the white powdery substance could be cocaine.” (Emphasis

in original.)).

Further, this court has given weight, as appropri-

ate in criminal cases, to officer’s training and experience

when we have reviewed probable cause determinations.

See State v. Heckathorne, 347 Or 474, 485, 223 P3d 1034

(2009) (“[The] individual expertise and training [of a police

officer] may provide the knowledge that turns various sen-

sory clues into probable cause.”); State v. Goodman, 328 Or

318, 328, 975 P2d 458 (1999) (police officer’s training and

Cite as 355 Or 812 (2014) 829

experience in drug investigations contributed to necessary

factual nexus between a residence, the defendant, and a

remote marijuana grow location in establishing probable

cause for search); State v. Herbert, 302 Or 237, 243, 729 P2d

547 (1986) (police officer, based upon his experience, had

probable cause to believe that a paperfold contained contra-

band); State v. Westlund, 302 Or 225, 231-32, 729 P2d 541

(1986) (same with respect to police officer’s belief that a vial

contained a controlled substance). We conclude that a police

officer’s training and experience may, depending on the fac-

tual circumstances, also be given appropriate weight when

a stop is reviewed under the less exacting standard of “rea-

sonable suspicion.”

How much weight a reviewing court will give to a

police officer’s training and experience in assessing the offi-

cer’s testimony in such a review will, of course, depend on

the circumstances of each case. We emphasize that a police

officer’s training and experience, as relevant to proving par-

ticular circumstances, is not presumed based solely upon

a police officer’s employment status. Rather, that training

and experience must be established, as it was here, through

admissible evidence of specific articulable facts that permit

an officer to make a reasonable inference based on the offi-

cer’s pertinent training and experience.

III. CONCLUSION

Here, Officer Salang testified that defendant was

nervous and fidgety and avoided eye contact. Salang also

testified that, in his substantial experience as a police offi-

cer, he had observed a distinctive behavior associated with

methamphetamine use that is popularly referred to as

“tweaking” and that, in his opinion, defendant was tweak-

ing. Salang also testified that another police officer had told

him that the driver of the blue SUV in which defendant was

riding was a known felon with an outstanding warrant who

was under investigation as a suspect in a local metham-

phetamine distribution ring.7 We conclude that the above

facts, considered in their totality, gave rise to a reasonable

7

We agree with the Court of Appeals that Officer Fandrem’s explanation

that he had observed an occupant of the same SUV engage in an apparent drug

deal two weeks earlier is too speculative to be considered in this analysis.

830 State v. Holdorf

inference that defendant committed the crime of possession

of methamphetamine, ORS 475.894. Thus, Salang’s stop of

defendant was justified by “reasonable suspicion.” See Ehly,

317 Or at 80.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.