DRUG MARKS ON ARM NOT ENOUGH TO OK POLICE STOP, COURT RULES

Evidence of recent drug use doesn't give police the right to stop and
question a person about suspected criminal activity, the Oregon Court
of Appeals ruled Wednesday in a case from Douglas County.

Tamara M. Holcomb, 24, of Cottage Grove, was arrested May 11, 2002,
after a sheriff's deputy saw her dancing on the side of Highway 99 in
Curtin and stopped to question her. Two small bags of methamphetamine
and some syringes were later found in her possession.

Holcomb was eventually convicted of one count of possession of a
controlled substance.

The deputy, Bill Bradburn, testified in Douglas County Circuit Court
that when he saw Holcomb turning around on the side of the highway,
he became concerned she might be mentally unstable and at risk of
drifting into the road.

Bradburn, who now serves as a detective with the Douglas County
Sheriff's Office, stopped to talk with Holcomb. As they spoke,
Bradburn noticed track marks on Holcomb's right arm, indicating the
likelihood she used intravenous drugs.

Bradburn also noticed Holcomb looked unkempt, as if she had been up
all night. The deputy testified that drug users will often go for
long stretches of time without sleep. Even so, after speaking with
Holcomb, Bradburn determined she wasn't under the influence of drugs.

Nevertheless, Bradburn asked Holcomb for her identification and ran
her name through a police computer to check for outstanding warrants.
The check revealed Holcomb was on probation for an earlier drug conviction.

Based on that information, the deputy asked if she was carrying any
methamphetamine or marijuana. Holcomb gave Bradburn three syringes
and after further prompting gave him two bags containing methamphetamine.

Before trial, Holcomb asked that her statements to Bradburn and the
methamphetamine be suppressed. She argued the evidence was collected
from an unlawful stop.

Circuit Judge Robert Millikan denied the motion, ruling that although
it was a close call, Bradburn had reasonable suspicion of criminal
activity. The judge ruled Holcomb was not subjected to a "stop," but
"mere conversation."

Relying on a July ruling by the Oregon Supreme Court in another case,
the three-member panel of the Court of Appeals found Bradburn's
actions in obtaining Holcomb's identification constituted a stop.
Although the deputy only needed reasonable suspicion that a crime had
been committed, a lower standard than for probable cause, the court
concluded that standard hadn't been met.

The Supreme Court ruled in the July case that a Klamath Falls police
officer unlawfully asked a pedestrian for identification after the
man glanced back over his shoulder several times after the officer
passed him in a patrol car. The person was later found in possession
of a vial of methamphetamine.

While Bradburn was aware because of the track marks that Holcomb
"probably, almost certainly, used unlawful controlled substances," by
the time he obtained her state identification card he had concluded
she was not under the influence of drugs, the court said. He only had
the suspicion because of Holcomb's disheveled appearance that she
might have used drugs.

"However, Bradburn offered no assessment of the likelihood that
someone who may have used drugs the night before would still have
controlled substances in his or her possession roughly 12 hours
later," Judge Rick T. Haselton wrote in the Court of Appeals decision.

The court said the state mistakenly relied on a premise that evidence
of a person's recent drug use was sufficient to establish reasonable
suspicion of current drug possession.

"No Oregon case endorses that proposition, and we decline to do so
here," Haselton wrote.

The case will be remanded back to Douglas County Circuit Court.

Decision online: http://www.publications.ojd.state.or.us/A120471.htm