STATE OF OREGON, Respondent, v. ROBERT DARRELL BUCHOLZ, Appellant.
(10-89-10075; CA A66293)
Court of Appeals of Oregon
August 12, 1992
624 | 836 P2d 180
Argued and submitted November 21, 1991, reversed and remanded for new trial August 12, 1992
Before Buttler, Presiding Judge, and Rossman and De Muniz, Judges.
De MUNIZ, J.
Buttler, P. J., specially concurring.
Rossman, J., dissenting.
Defendant appeals his conviction for unlawful possession of a controlled substance.
In reviewing the lawfulness of a warrantless search, we are bound by the trial court‘s findings of historical facts, if they are supported by the evidence. State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991). While on patrol, Officer Barrong saw a car that was emitting visible exhaust. The driver did not signal before turning into the parking lot of a grocery store. Barrong stopped the car and asked the driver for her license and registration. She told him her name, but said that she did not have her license with her. Defendant, who was seated in the front passenger seat, told the officer that the car belonged to defendant‘s father. Neither the driver nor defendant produced the vehicle registration certificate. Barrong noticed a backpack on the floor near Knight, a passenger in the back seat. He asked whose it was, but no one answered. Barrong asked if he could look in the backpack, “thinking maybe the vehicle registration was in it.” Knight handed the pack to Barrong, and nobody in the car objected. Barrong took the pack, went back to his patrol car and ran name checks on the occupants of the stopped car. He then looked in the pack and found drug paraphernalia, including a cotton ball that later tested positive for methamphetamine. He also found a wallet that belonged to defendant.
Defendant concedes that Barrong lawfully stopped the car in which defendant was a passenger. The officer could see exhaust emissions, and the driver had failed to signal before turning into a parking lot.1 When an officer makes a lawful traffic stop, he may detain the driver
“for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation.”
ORS 810.410(3)(b) .
In State v. Porter, 312 Or 112, 116-20, 817 P2d 1306 (1991), the Supreme Court thoroughly examined the legislative history of
“[T]he legislature sought to keep traffic infractions decriminalized and to reduce the attendant law enforcement methods as much as necessary to accomplish that goal. [The legislature intended] to permit only minimal intrusions on Oregon drivers stopped for traffic infractions.” 312 Or at 119.
To give some teeth to its conclusion that an intrusion authorized by
”
ORS 810.410(3) defines the authority of the police to respond to a traffic infraction; by implication, the statute proscribes any further action by the police, including a search, unless it has some basis other than the traffic infraction.” 312 Or at 120. (Emphasis supplied.)
Barrong testified that he asked to look in the pack, because he thought that he might find the vehicle registration in it. The trial court found that, “at the time he asked for consent, [Barrong] was still looking for evidence of the vehicle‘s ownership.” That finding is supported by the evidence, and we are bound by it. State v. Stevens, supra, 311 Or at 126; Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). Barrong‘s testimony and the trial court‘s finding establish that his request for consent to search was made solely on the basis of the traffic infraction. He had no “basis other than the infraction” for requesting consent to search the pack. As a matter of law, he was forbidden from asking to look in the pack during the stop. The trial court erred when it denied defendant‘s motion to suppress.
Reversed and remanded for a new trial.
BUTTLER, P. J., specially concurring.
Although I concur generally with the opinion of De Muniz, J., I write separately to present a slightly different analysis. Officer Barrong lawfully stopped the car in which
“Traffic stops should be the minimum possible intrusion on Oregon motorists, and not an excuse to begin questioning, searching or investigating that is unrelated to the traffic reason for the stop.” State v. Carter/Dawson, 34 Or App 21, 32, 578 P2d 790 (1978), aff‘d 287 Or 479, 600 P2d 873 (1979).
Barrong asked the driver for her driver‘s license and car registration. He was entitled to do that. She gave her name but said that she did not have her license with her. Defendant, who was seated in the front seat, said that his father owned the car and gave Barrong his name. He was asked for the registration but did not produce it. At that time, Barrong asked the name of the passenger in the rear seat, who gave his name—Knight. Barrong then noticed a nylon backpack on the floor near Knight and asked who the owner was.1 No one claimed ownership. He asked if he could look through it.2 Knight then handed it to him, and no one objected.
After the driver failed to produce her driver‘s license, Barrong had probable cause to arrest her for that offense.
Even if Barrong had authority to ask for and receive consent to search the backpack, he did not open it until after he had completed a records check. Although he was entitled to extend the stop to make a records check to determine the registered owner and whether the car had been stolen, once he learned from the records check that the car had not been reported stolen, the lawful stop was at an end. The record is silent as to whether he also learned, as he could and should have, to whom the car was registered, although he testified that he was still concerned about the registration. That is why, he said, he opened the backpack. He did not find the registration but did find, as he said that he had anticipated finding, “any number of things.” Extending the stop to search the backpack extended its duration unreasonably.
Because the evidence was unlawfully seized as a result of the search of the backpack, I agree that it should have been suppressed.
ROSSMAN, J., dissenting.
I must dissent. The lead opinion holds together fairly well until it collapses at the end, where it finally divines an answer to what it acknowledges to be the determinative question: Did Officer Barrong act reasonably in asking to look in the backpack to determine ownership of the vehicle? Of course he acted reasonably; it is what is known as “good police work.”
The analysis is as simple as this: The officer was in the midst of a statutorily authorized and ongoing investigation of a lawful traffic stop.
The lead opinion misreads the governing statute and misperceives the word “reasonable.” In doing so, it has set us on a dangerous course. I foresee the day when an officer, confronted with the same situation as was Barrong, accepts an invitation to open a backpack and—rather than dope—discovers a ticking bomb or a body part. Given the majority‘s holding today, that evidence would be inadmissible. That just cannot be right. Rather than having to scurry around then to find the right answer, we should do it now when it is staring us in our collective faces.