State v. Merryman

No. 878 September 23, 2026 101 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL EUGENE MERRYMAN, Defendant-Appellant. Multnomah County Circuit Court 23CR45798; A184539 Bryan B. Francesconi, Judge. Argued and submitted March 3, 2026. Carla E. Edmondson, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Kyleigh Gray, Assistant Attorney General, argued the cause for respondent. On the brief were Dan Rayfield, Attorney General, Benjamin Gutman, Interim Deputy Attorney General, and Colm Moore, Assistant Attorney General. Before Ortega, Presiding Judge, Joyce, Judge, and Hellman, Judge. ORTEGA, P. J. Reversed and remanded. 102 State v. Merryman ORTEGA, P. J. Defendant appeals from a judgment of conviction, entered after a conditional plea, for attempted commercial sexual solicitation and unlawful possession of a firearm. In a single assignment of error, defendant argues that the trial court erred in denying his motion to suppress because police lacked probable cause to arrest him. We agree with defen- dant and, accordingly, we reverse and remand. We review the trial court’s denial of a motion to suppress for legal error and are bound by the trial court’s findings of fact if there is constitutionally sufficient evidence in the record to support them. State v. Moore, 264 Or App 86, 87, 331 P3d 1027 (2014). If the trial court did not make express findings of fact and there is evidence from which those facts could be decided more than one way, we presume that the court found the facts in a manner consistent with its ultimate conclusion. Id. We state the facts in accordance with those standards. On September 19, Larsen, a detective with the Portland Police Bureau in the human trafficking divi- sion, was working “around the area of Northeast Sandy Boulevard” that is a part of a “blade or tract” where it is common to see “prostitution-related activities.” Around 7:45 p.m., Larsen, who was parked in a parking lot near an intersection, “observed a female who showed indicators of * * * prostitution activities.” She was wearing “a skirt and little jean jacket and heels,” and “considering that it was chilly at that time, * * * her clothing was not conducive for both the location and for the weather.” She was alone and did not appear headed toward any particular destination. Larsen did not recognize the woman as a known sex worker. The woman was looking at her phone and also at traffic, but Larsen could not verify whether she was making eye contact with drivers. She did not seem concerned for her safety. Based on Larsen’s observations, including the wom- an’s clothing, her actions looking at traffic and at her phone, and her lack of any apparent intended destination, Larsen believed that the woman was a sex worker. After about seven minutes, Larsen saw a black car pull up to the intersection and stop along the curb across the Cite as 353 Or App 101 (2026) 103 street from the woman. The driver “stayed at that intersec- tion for about a minute or two, which seemed a little long.” Larsen believed that the driver was trying to see if the woman was a sex worker. Larsen could not see if it would have been possible for the driver to make eye contact with the woman. The car drove away and, about two minutes later, Larsen saw the same car “circle back into that area.” As the car was coming back towards the area, the woman started walking down Sandy Boulevard. The car went into the driveway of a tavern, and the woman walked into the driveway just behind the car. Larsen “was losing visual of what was occurring,” so he repositioned himself and turned into the parking lot of the tavern, where he saw the woman in the passenger seat of the car with defendant in the driver’s seat and a “little dog” inside the car. Defendant drove across the street into the parking lot of a bar and mini market, and after about ten to fifteen seconds the woman left the car and walked towards the mini market. Defendant drove out of the parking lot, and Larsen contacted other officers and told them that he had probable cause to arrest defendant for attempted com- mercial sexual solicitation and unlawful prostitution pro- curement activity. The officers conducted a traffic stop and arrested defendant. The state charged defendant with attempted com- mercial sexual solicitation (Count 1), unlawful prostitution procurement activity (UPPA) (Count 2), and unlawful pos- session of a firearm (Count 3).1 Defendant filed a motion to suppress all evidence, arguing that police lacked probable cause to arrest him. At a hearing on defendant’s motion, Larsen testified to the facts recounted above and about his training and experience in investigating human trafficking. Larsen’s testimony about his training and experi- ence included that he has been working in the human traf- ficking unit since 2019. Larsen has received “no less than 300” hours of human trafficking training, including train- ing about signs of street level trafficking and investigative techniques and has conducted “no less than 400” human 1 The firearm charge was based on officers finding a handgun in defendant’s car at the time of his arrest. 104 State v. Merryman trafficking and sex work investigations. Larsen has also “gone through decoy schools or undercover schools, surveil- lance schools[,] * * * [and] open source investigations schools” related to investigating illegal sex work. Larsen recounted that his training and experience has taught him that sex workers “often wear[ ] skimpy attire * * * to the point of where they’re almost in no clothes at all” and that they often do “a stroll,” where they are “walking very seductively or slowly as they’re going from point A to point B[,] * * * within the vicinity of the hotel that they’re working” or in a “dimly lit area where they can go and * * * engag[e] in sexual activity inside the car.” Sex work- ers “look[ ] at both lanes of traffic because they’re trying to make * * * eye contact to see if it’s a person who’s looking for that particular thing.” He explained that sex workers often use a phone to try to schedule dates or to check in with the person who is trafficking them. According to Larsen, sex buyers will often “circle at least one to two times” before stopping to initiate an interaction with a sex worker. Often, if a sex worker is “mid- block somewhere and they see the same car circling mul- tiple times[,] * * * that car will park one to two blocks up [and] then [the sex worker] will walk up to that car with the knowledge that this is likely going to be a buyer.” There is usually “little to no conversation outside of the vehicle other than that they [cue] each other to say this is what the intention is,” according to Larsen. Then the sex worker will “get in the car and then that’s when they start talking about * * * agreements for the sexual contact.” After the sex worker gets into the buyer’s car, “they will talk briefly * * * to determine whether or not there’s going to be a date” and then they “take off” and on the drive they determine the location and the details of the transaction. The state argued that based on Larsen’s “lengthy * * * training * * * related to human trafficking” and the totality of the circumstances, Larsen had probable cause to arrest defendant. The state noted as relevant that the loca- tion of the incident was known to law enforcement as an area where illegal sex work occurs; the woman did not appear to have an intended destination or be concerned for her safety Cite as 353 Or App 101 (2026) 105 and was looking at her phone and at traffic; and defendant drove by the woman twice, then pulled into a parking lot, and the woman followed and got into defendant’s car. Defendant contended that there was no basis for Larsen to believe that the woman defendant interacted with was a sex worker and that probable cause cannot be based on “ambiguous conduct * * * in a high crime area [and] an officer’s experience in that area.” Defendant noted that the woman “wasn’t waving people down, wasn’t strolling,” and could have been waiting on a ride, resting during a walk, or meeting with someone to buy or sell something on Facebook marketplace. The trial court denied defendant’s motion after concluding that based on Larsen’s “experience and observa- tions,” Larsen’s belief that defendant had committed a crime was “objectively reasonable based on the totality of the cir- cumstances.” The court found that: “We have seven minutes of [the woman] standing on a cor- ner, not going anywhere. Getting in and out of a car within one, less than one block. * * * Looking at the traffic, looking at the phone, improper clothes for the weather. Defendant’s car going by and turning back again. The car going * * * into the [parking] lot being followed by the alleged sex worker. The location where this occurred with * * * high instances of illegal sex work. And then [the woman having] no concern for [her] safety.” The court reasoned that one or two of those circumstances would not establish probable cause, but “considering every- thing altogether, * * * there is probable cause.” Defendant challenges that ruling on appeal, renew- ing his argument that officers lacked probable cause to arrest him. Article I, section 9, of the Oregon Constitution establishes the right of the people to be secure from “unrea- sonable search, or seizure.” A warrantless arrest is lawful when the arresting officer has probable cause to believe that the person has committed a crime. ORS 133.310(1). Probable cause requires “a substantial objective basis for believing that more likely than not an offense has been committed and 106 State v. Merryman a person to be arrested has committed it.” ORS 131.005(11). Probable cause exists when an officer subjectively believes that a crime has been committed and thus that a person is subject to seizure, and that belief is objectively reason- able in the circumstances. State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986). In determining whether an officer has probable cause to arrest, we examine the totality of the cir- cumstances, including the officer’s training and experience. State v. Rayburn, 246 Or App 486, 490, 266 P3d 156 (2011), rev den, 351 Or 675 (2012). An officer’s experience cannot form the entire basis for probable cause. State v. Martin, 260 Or App 461, 471, 317 P3d 408 (2014). An officer is not required to eliminate all possible lawful explanations for a person’s conduct before arresting the person, but it must be more likely than not that the unlawful explanation is the actual explanation. Id. Here, Larsen believed he had probable cause to arrest defendant for an attempted violation of commercial sexual solicitation, ORS 167.008, and UPPA, Portland City Code 14A.40.050.2 Thus, the question is whether Larsen “had a substantial objective basis for believing that, more likely than not, defendant had engaged in conduct constituting a substantial step in furtherance of an act of prostitution.” Cf. Martin, 260 Or App at 472 (explaining that “[t]here is no meaningful distinction between the crime of [UPPA] and attempted prostitution” (internal quotation marks omitted)). To summarize, Larsen believed that he had prob- able cause to arrest defendant based on the following cir- cumstances: A woman stood at an intersection in an area where it is common to see “prostitution-related activities”; she was wearing “a skirt and little jean jacket and heels” that were “not conducive for both the location and for the weather”; she was alone; it did not appear that she had an intended destination; she was looking at her phone; she was looking at traffic; she did not seem concerned for her safety; defendant stopped at the intersection for about two minutes, 2 ORS 167.008 provides, in relevant part, that “[a] person commits the crime of commercial sexual solicitation if the person pays, or offers or agrees to pay, a fee to engage in sexual conduct or sexual contact.” UPPA provides, in relevant part, that “ ‘prostitution procurement activity’ means any conduct by any person that constitutes a substantial step in furtherance of an act of prostitution.” Cite as 353 Or App 101 (2026) 107 drove away, and then returned to the area; defendant pulled into a tavern parking lot; the woman followed defendant’s car, got into the car, they drove across the street, and the woman left the car and walked towards a mini market. The state argues that under the totality of those circumstances, in light of Larsen’s training and experience, Larsen’s belief that defendant attempted to arrange sexual contact for a fee was objectively reasonable. We disagree. We begin with the woman’s conduct, which led Larsen to believe that she was a sex worker. First, as to the “high-vice” location where the woman was standing, “there is nothing inherently suspicious about being in such an area.” Martin, 260 Or App at 477; cf. State v. Bertsch, 251 Or App 128, 134, 284 P3d 502 (2012) (“We have repeatedly said that a person’s presence in a location associated with drug activity is insufficient to support an objectively rea- sonable belief that that person is himself or herself engaged in drug activity.”). Second, the woman’s attire—“a skirt and little jean jacket and heels” that were “not conducive for both the location and for the weather”—adds little to the calcu- lus. In our view, the appropriateness of a woman’s attire is largely subjective, and we note that Larsen’s description of the woman’s attire is inconsistent with the “skimpy attire” or almost “no clothes at all” that Larsen testified that sex workers often wear. Additionally, that the woman appeared not to have an intended destination, was looking at her phone, was looking at traffic, and did not appear to be concerned with her safety is not so “remarkable” as to support a belief that the woman was a sex worker. Cf. Martin, 260 Or App at 465, 478-79 (the defendant’s conduct of walking in a high- vice area with no apparent purpose, looking at traffic, and talking with a woman who was a known sex worker was “not too remarkable” such that “any conclusions about the reasons for [the] defendant’s observed conduct would be speculative” and was insufficient to support probable cause to arrest her for UPPA). Moreover, Larsen testified that, based on his training and experience, sex workers often walk “very seductively or slowly”; are seen “within the vicin- ity of the hotel that they’re working” or in a “dimly lit area”; 108 State v. Merryman and try to make eye contact with drivers—circumstances that were absent here. See id. at 477 (in evaluating whether the totality of the circumstances supported probable cause to arrest the defendant for UPPA, “we must consider both what [the] defendant did, as well as what she did not do”). Thus, Larsen’s belief that the woman was a sex worker was not objectively reasonable. Turning to defendant’s conduct and his interac- tion with the woman, Larsen observed defendant stop for about two minutes at the intersection where the woman was standing; drive away and then circle back to the intersec- tion; drive into the parking lot of a tavern, where the woman followed on foot and then got into the car; and then drive with the woman across the street to a parking lot, where the woman left the car and walked towards a mini market. In our view, those circumstances, even in light of Larsen’s training and experience, do not establish an objectively reasonable belief that defendant had committed UPPA or attempted commercial sexual solicitation. We agree with the state that some of those circum- stances—that defendant stopped at the intersection, circled back, and then parked a short distance away, where the woman got into the car—may be consistent with illegal sex- work-related activities. There may also, however, be a lawful explanation for defendant’s conduct. Without more, such as the woman being a known sex worker, defendant’s conduct was “not too remarkable” and “any conclusions about the reasons for defendant’s observed conduct would be specula- tive.” Martin, 260 Or App at 478-79; cf. State v. Green, 67 Or App 70, 73, 676 P2d 938, rev den, 297 Or 82 (1984) (proba- ble cause existed where the defendant attempted to transfer a small item for cash shortly after being observed with a known drug dealer in a specific location where drugs were sold, then jerked his hand back upon noticing a police car). Moreover, Larsen’s observations did not include conduct that he described as typical for sex buyers and sex workers, such as defendant and the woman making eye contact when defen- dant first stopped at the intersection or “[cueing] each other to say [an illegal sexual encounter] is what the intention is” before she got into the car. Additionally, that defendant and Cite as 353 Or App 101 (2026) 109 the woman drove across the street, where the woman left the car and walked to the mini market, was inconsistent with Larsen’s training and experience with respect to the sequence of events that typically occurs during an encoun- ter involving illegal sex-work-related activities. We acknowledge that this is a close case and that the circumstances, in light of Larsen’s training and expe- rience, may have appeared suspicious and warranted fur- ther observation. We conclude, however, that the circum- stances did not establish an objectively reasonable belief that, more likely than not, defendant had committed UPPA or attempted commercial sexual solicitation. Thus, the trial court erred in denying defendant’s motion to suppress. Reversed and remanded.