*1 Argued part, February affirmed in submitted part reversed in trial June and remanded for OREGON, STATE OF Appellant, ALPERT, SPENCER WARD Respondent.
(No. 19032) 10-80-03817, CA
Robert *2 respondent. Morrow, McCrea & With him on brief was Eugene. P.C., Divita, Judge, Presiding Richardson, and Thornton
Before Judges. Hoomissen, Van HOOMISSEN, J.
VAN dissenting opinion. THORNTON, J., HOOMISSEN, VAN J. order allowing
The a pre-trial state appeals1 from seized property to suppress defendant’s motion infraction. a traffic The following for stop to seize a cause is police issue whether and a folded bank case (compact) small closed cosmetic on the floorboard view they observed to suppress "any moved defendant’s car. The defendant or regard- a seizure and all evidence derived from a search vehicle, and the defendant’s ing the defendant’s property * * *.”2 allowed the defen- The trial court’s order person of an entirety. dant’s motion its find seizure We the seizure of of vodka was but that permissible, containing a controlled sub- (cocaine) stance was not. disputed. facts not Defendant essential are initially driving defectively equipped stopped
vehicle, a Class B traffic infraction. ORS 483.404. Two officers, with one observing traveling defendant’s car out, distance, short headlight gave traveling chase. After mirror, saw officers defendant rearview look *3 hand turn and to partially gesture acknowledge with presence. the officers’ leaned over toward his Defendant once, right at least and or three times two perhaps rapid succession, the car. his head the center of moving toward officers could head and only The see defendant’s shoulders. car stop, When defendant to a finally came parked emergency behind with its overhead beacon and attempted flashers activated. It is not defendant contended to the police. elude provides, part: ORS 138.060 * * * may appeal
"The state take an from: * * * *
"(3) evidence; prior suppressing An order made to trial «* [*] * * * » standing challenge question did to the search The state not the defendant’s 2547, 65 83, 100 Salvucci, L US S Ct Ed 2d See United States v. seizure. 2556, (1980); Rawlings Kentucky, Ed 100 S Ct 65 L 2d 633 619 (1980); v. 448 US (1980); 2439, 65 727, 100 Payner, L Ed 2d 468 Slates 447 US S Ct United v. Illinois, L Ed 2d 387 US 99 S Ct
Rakas got approached
The officers out of their car car, defendant’s driver’s side and Officer Minster on the Rainey passenger Officer on the side. Because of defen- dining pursuit, motions dant’s the officers were con- might approached, weapon. cerned he have a As the officers rummaging glove defendant was box. officers appeared saw a vodka bottle which about half full in the open glove identification box. Officer Minster asked for headlights was informed defendant out. Defendant that one of the car’s got car, out of his closed the door and registra- handing himself, identified Minster a car Officer recently explaining name, in a he tion different purchased Rainey patted the car. defendant down Officer weapons, receiving weapons, no resistance. He found no Rainey and did not detect the odor alcohol on defendant. telling car, of the instructed defendant to move to the rear weapons and him that he intended to the car for other this time defendant containers of alcohol. Until being Rainey’s smiling polite. Upon had been told of agitated search, however, intent to became defendant attorney belligerent. and de- He identified himself as an authority manded to know the to search.3 He officer’s Rainey positioned and his car. himself between repeatedly ordered the rear of the then defendant to subject grasped to arrest his arm and told him he would be comply. complied if he then with refused Defendant Rainey’s moving direction, car to the rear of the with Officer Minster. From the time defendant moved Minster, not he did stand behind his car with Officer Rainey’s Until Officer found interfere with search. defendant, cocaine, he did to arrest not intend policy Department was to cite and because the of the Police law, Class B traffic violators of the release infraction. ORS 487.841. Rainey got from the previously he had
driver’s side seized the vodka bottle *4 glove cap, open the smelled the box. He removed seen During vodka. the contained and confirmed bottle contents Rainey’s questioning rely upon of Officer does not the defendant’s The state Gressel, authority 276 Or cause. See State v. to search to establish (1976). P2d 1014 stop- that the defendant conceded hearing the suppression bottle of the vodka his and the seizure of car ping a then Rainey performed unobjectionable. constitutionally seat of defendant’s the driver’s search of area around the or any weapons. no other containers open car. He observed a closed and compact a Officer then noticed Rainey near the floorboard in view on envelope plain folded bank nothing on seat. There was of the driver’s edge they to suggest envelope of the or bank compact outside and seized Rainey contained contraband. that Inside, crystalline powder it. he found white opened and a razor blade. a controlled substance appeared be the folded bank next seized and Rainey opened were later powders inside. Both powder and found similar indicted for Posses- identified as cocaine. Defendant was His 475.992. motion sion of a Controlled ORS Substance. his from the search of car was all evidence derived suppress allowed, and the appeals. state (1) the saw an open
The state officers argues: while still outside container of vodka in the box glove car, Rainey’s entry initial Officer (2) was, therefore, having proper; to seize the vodka during seen movements defendant make furtive multiple pursuit car, already found one having alcohol in the Officer arm’s reach cause to make a of the area within (3) weapons; seat and for driver’s for other containers when saw vantage point he at lawful in view on the plain and the bank car; Rainey’s floorboard of a result of Officer as as substances training experience controlled appearance of the sociated the distinctive paraphernalia,4 recognize may training experience him to an enable While officer’s insignificance lay person, implements might to a State crime be of Elkins, 279, 290-91, 422 (1966), view be 245 Or P2d even seizure must 691, 695, 564 App upon probable P2d rev Chipley, based 29 Or cause. State v. den 279 Or experience "compacts” concerning Rainey’s with was not The evidence impressive. He testified: officer, your investigations "Q. your In career as a substances, compacts? you to see had occasion controlled have ever Yes, "A. I have.
items seized and of the in defendant’s the location items probable those had cause to believe that (5) exigent substance; items contained a circum- controlled justified envelope; compact and bank stances seizure of the (6) repositories personal the items of seized were not coming protection effects within the "closed con- rule, tainer” so the search of those containers warrantless was lawful. challenge validity
The defendant does not here entry stop Rainey’s of the traffic initial or Officer legality car to seize the container. It is the of the continuing opening search and the seizure and of the closed compact envelope and the which he contests. folded bank argues and seizure are per Defendant a warrantless search justify required unreasonable, and the state was se preponderance by a search and seizure warrantless argues, Therefore, the state evidence. the defendant had (1) prove: seized, that after the vodka bottle was "Q. investigations you generally And can describe the that resulted in your observing compacts? occurring particular, "A. There were two cases in both within the last years. subsequent three Once case involved an initial search involving marijuana. And in with that initial search warrant some context warrant, recovered, types paraphernalia and later search various were blades, syringes, things including compact, powder, razor like that. "Q. as a Was there in fact a substance found result of that controlled particular investigation? marijuana, no,
"A. Other than there was not. "Q. involving [sic]investigation compact? And a was there another then Yes, investigating "A. I was a there was. This involved an incident where arrest, forgery, subsequent purse and had to that her arrested a female. And found, searched, purse compact was and inside that was inside compact there was a razor blade and a straw. There was also a white residue on the mirror. "Q. you And do know what the white residue was? It "A. It was never seized tested because it was such a small amount. purpose
would serve no for us to have done so. * ** * * ”Q. you, your experience, point throughout is that entire have never you say was a controlled
found a controlled substance in a that can substance, isn’t that true?
Sfc
5$C
[*]
ijc
any
compact,
"A. Inside a
involved in a case where
I’ve never been
substance.”
contents of that case had been identified as
controlled
(2)
searching;
cause to continue
that
exigent
seized,
after the vodka bottle was
there were
cir-
(3)
justifying
search;
cumstances
further warrantless
ordinary
that
that
cause existed to believe
an
compact and a
common bank
instrumen-
if
crime;
talities or evidence
seizure
exigent
valid,
bank
the warrantless examination of their
circum-
required
con-
stances
necessarily
tents. Defendant contends that the trial court
found
against
the state on one or
of the above
more
conten-
by
finding
and that
of fact
tions
this historical
the trial
binding upon
court is
us
as we
constitutional
review
*6
questions presented by
Quinn,
this case. State v.
Or
290
(1981);
390,
383,
Carter/Dawson,
We find the
were
when
stopped defendant’s car and seized the
container of
they
plain
which
vodka
glove
in
view in
observed
ORS.133.310(1);
supra,
box.
Quinn,
State
391;
Greene,
337,
Or at
State v.
285 Or
The next is with in- concerned the subsequent police trusiveness of behavior. The state con- seizing Rainey tends justified after vodka bottle was continuing in his search for other containers weapons. Assuming, deciding, without that Officer justified conducting was in a search of the defend- ant’s after he had seized the vodka bottle and that he lawfully position therefore was in a to observe the closed compact envelope and folded in view on the question, floorboard, then, is, did Officer have probable Crockett, cause to seize those State v. items? In (1978), App 1019, 1023, Or P2d 214 we said: "* * *Probable suspi cause means 'a well-warranted Willis, 409, 412, 545 24 App cion.’ State v. Or P2d rev requires 'substantially proof den It less than be doubt, something yond reasonable but more than a mere 343, 347, Feehely, possibility.’ App State v. 27 Or 556 P2d * *” (1977).* (1976), [277 1] rev den Or B traffic infrac Defendant was a Class stopped investigation guilty tion. indicated he Subsequent B traffic Defendant was not Class infraction. another arrest, of arresting and the had no intention under seizure. No odor of alcohol was him prior questioned was observed. No weapons detected. No contraband discloses, the defendant was far as the record found. As had no they unknown to previously police, or was commit defendant had committed cause believe traffic infrac of the law other than two ting violation any evidence is insufficient to establish tions. We conclude the and bank to seize defendant’s compact cause for warrant- There was no simply justification envelope. innocuous and bank less seizure of an otherwise facts this under case. distin- by factually cited the dissent are cases with the reason- directly and none is concerned guishable from the reason- distinguished a seizure as ableness of a search.5 ableness of of the open we find that seizure summary,
In but that the seizure of was permissible, vodka was not.6 and bank and remanded part, part reversed Affirmed for trial. (1973), Head, App rev the defendant 509 P2d den In State v. 13 Or voluntarily marijuana inspection of hat concealed and his consented to the which cigarette containing car. State v. package a balloon of heroin out threw a *7 Krohn, 612, (1974), 662, App Stacey, App 15 Or P2d rev den and State v. 17 Or 523 63, 514 (1973), (1974), marijuana in that an officer who sees P2d rev den held 1359 328, Emfinger, App may marijuana. 6 Or 487 for more State v. a vehicle Greene, (1971), v. 285 Or a lawful arrest. State
P2d 1393
337,
was
search incidental to
first-degree burglary.
(1979),
robbery
The
and
P2d
involved armed
591
1362
strong
upheld
upon
the vehicle was used
based
evidence
search of a vehicle was
during
justified
exigent
search.
a warrantless
the crimes and that
circumstances
(1970),
42,
1975,
Maroney,
also an
823 THORNTON, J., dissenting.
I
the
totally
The majority
ignores
dissent.
opinion
flashing
that after the officers turned on the overhead
fact
making
the driver in
on their
the action of
lights
patrol
engaged
be
in
repeated
appearing
plac-
movements
to
or
front seat
moving
objects
some
within the
area was
ing
hide
strong
attempting
indication that defendant
to
was
object, such
contraband
from the
weapon,
some
as
or
officers.1
seen defendant make
approaching police
Having
multiple
dining
pursuit,
having
furtive movements
glove
discovered
of vodka
com-
the officers had
cause to make a limited
partment,
search of the front seat area for
containers and
other
Head,
317,
for
See
13 Or
possible
App
contraband.
State v.
(1973),
P2d 52
under
509
where we held that
totality
the circumstances
the officer had
cause to search
following
the automobile
attempt
conceal
visible in
seat
marijuana.
hat
front
containing
See also
662,
612,
(1974);
v. Stacey,
State
rev
App
17 Or
523 P2d
den
Krohn,
63,
(1973),
State
15 Or
nizing narcotics and narcotics
was on the
paraphernalia,
for any
alert
items
suspicious
in the automobile and was
in
justified
checking
envelope.
These were
repositories
not
within
personal
coming
effects
the pro-
Downes,
tection of the closed container
rule.
State v.
Cf.
(1979);
Groda,
Or
For the