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 defendant 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 division, 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 woman’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 intersection 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 commercial sexual solicitation and unlawful prostitution procurement activity. The officers conducted a traffic stop and arrested defendant.
The state charged defendant with attempted commercial sexual solicitation (Count 1), unlawful prostitution procurement activity (UPPA) (Count 2), and unlawful possession 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 experience included that he has been working in the human trafficking unit since 2019. Larsen has received “no less than
300” hours of human trafficking training, including training 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, surveillance 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 workers “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 “midblock somewhere and they see the same car circling multiple 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 location 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 observations,” Larsen’s belief that defendant had committed a crime was “objectively reasonable based on the totality of the circumstances.” The court found that:
“We have seven minutes of [the woman] standing on a corner, 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 everything altogether, * * * there is probable cause.”
Defendant challenges that ruling on appeal, renewing 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 “unreasonable 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 reasonable 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 circumstances, 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 probable cause to arrest defendant based on the following circumstances: 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 reasonable 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 calculus. 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 highvice 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 vicinity 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 interaction 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 intersection; 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 circumstances—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 sexwork-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 speculative.” 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) (probable 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 defendant 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 encounter 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 experience, may have appeared suspicious and warranted further observation. We conclude, however, that the circumstances 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.