*1 25, 6, April 29, Argued affirmed June reconsideration denied June petition September for review denied STATE OF OREGON, Appellant, ROBERT CHIPLEY, DEARREL Respondent.
(No. 7421) 76-5172, CA
Robert J. Eugene, argued the cause for On respondent. Frisch, brief were Paul R. and & McCrea, P.C., Morrow Eugene.
[691 ] Thornton Schwab, Judge, Chief Before Tanzer, Judges.
SCHWAB, J.C.
Tanzer, dissenting opinion.
SCHWAB, C. J. The state evi- appeals an order suppressing seized dence after a warrantless search of the defend- 138.060(3). person. ant’s ORS In September 1976 defendant to was attempting a board commercial airline at flight Eugene airport when he a triggered magnetomet- the alarm on er —a device used to presence detect metallic A objects. private security guard by the employed airport operate the magnetometer requested defendant place all metallic objects into pockets and walk tray through magnetometer again. Defendant placed a number of objects tray passed through the magnetometer activating without the alarm. Zahar,
Gregory officer at Eugene police stationed provide assistance to the backup private *3 security company, was near the standing magnetome- ter and observed that placed tray defendant an object which be "appeared ivory to an or tusk type roach holder.” Zahar had been a officer for police six years, had received in the of training identification narcotics and narcotics and at paraphernalia, one had been point assigned to the narcotics team county for about six months.
The object question is a of what to piece appears be ivory, roughly conical in awith small hole in shape one end which expands to a diameter of approximately one-half inch at the other. Zahar moved to within two three or feet of the tray and noticed stains on the sides of larger the hole of the "roach holder” which testified could have been caused by to smoke using marihuana or tobacco. At this Zahar was unable point to detect any odor from the Zahar "roach holder.” did not as to testify his as opinion to the use of "roach holders.”
When defendant the items the began placing tray back into his pockets, requested Zahar permission
[ that to the holder.” Zahar testified examine "roach examination, both verbally consented the defendant to he did that through gestures; and defendant testified was who security guard, consent. The private not two, from the tes- four feet standing approximately the consent to tified that he did not hear defendant and "roach holder” examination. Zahar the picked up then searched odor Zahar detected the of marihuana. Defend- found hashish and marihuana. defendant and of danger- ant was later indicted for illegal possession 167.207(1). ous ORS drugs. testified one witness suppression hearing,
At the tray in the objects that such as that defendant placed and that such stores readily were obtainable knickknacks, in- as were used as decorative objects conclu- At the cense holders luck charms. good the had the the found that state sion of court hearing, had met that defendant not its burden of proving holder” and examination of the "roach consented to the that: suspi- failed to that reasonable prove
"The State has the part of criminal did exist on activity cion of taking officer in his initial observation the defend- ivory property 'roach holder’ from of the same nonconsensual search conducting ant closely smelling of the same.” by inspecting and seized from defendant The held that the evidence court search illegal fruits of the should be as the suppressed "roach holder.” abandoned its claim On the state has appeal consented orally through gestures defendant holder,” and asserts Zahar’s examination of "roach *4 the consented to instead that defendant impliedly to whatever secu examination to submit by choosing board could were before rity procedures required Courts, necessity the the aircraft. squaring cause security probable searches with the warrant Amendment, adopted have the Fourth of requirements used the implied some have a number of approaches: [694] theory urged by state,1 other consent now the but rejected approach in favor of courts have such an Terry analysis grounded principles v. either in the of (1968),2 Ohio, 1, 1868, L Ed 2d 392 US 88 S Ct 20 889 City or the See v. administrative-search rationale of of Seattle, 541, 1737, L Ed 2d 943 387 US 87 S Ct 18 (1967), Municipal 523, Court, 387 US Camara v. (1967).3 only 1727, 87 S Ct 18 L The Ed 2d 930 emerged consensus which has is that such cases scope airport security searches must be limited seeking discovery weapons explosives to might which hijacking attempts. used in
be As was stated (2d United Albarado, 799, States v. 495 F2d 806 Cir 1974): "* * * [T]he public expectation, does have the or at least under right our Constitution the that no expect, threat, matter search to counter will be as limited possible, meeting consistent with the threat.” By placing pockets tray, the contents of his defendant cannot be said to have consented to their purposes prevention examination for other than hijacking attempts.
The state next asserts that as the "roach holder” plain request was in his view, Zahar "did not need to permission inspect the item.” of defendant to further
Simply
plain
because the
"roach holder” was
view, however, cannot
in and of itself
its
plain
seizure —a
view seizure must also
based on
be
probable cause.
Elkins,
279,
State v.
245 Or
422 P2d
(1966).
familiarity
250
The state contends that Zahar’s
coupled
paraphernalia
with narcotics and narcotics
recognition
"appeared”
with
of what
to him to be a
gave
"roach holder”
rise to sufficient
cause to
1
(9th.
Davis,
1973);
v.
States v.
United States
482 F2d 893
Cir
United
(2d Cir)
Bell,
concurring),
(Friendly,
denied 409
464 F2d
674
C.
cert
(1972).
US 991
2
(7th
Fern,
1973);
United States v.
F2d
484
666
Cir
United
v.
States
(1st
Legato,
Cir),
(1973);
480 F2d 408
cert denied
As use of a to the effect that the timony being holder” was for other than legitimate purposes. "roach event, the most frequent In even that any assuming marihuana, such smoking use of a "roach holder” is for contraband, use, se. See per and it is not only is not 601, 485 Parks, Jr., 5 Or App State v. Tarpley, State (1971). P2d 1246
Affirmed.
TANZER, J., dissenting. the state’s I rejection with agree majority ato search is consent that consent to an theory is issue legal search. I further that agree police lawful from his the officer’s observations whether were sufficient to constitute vantage point however, I conclude that Unlike the majority, cause. it probable to believe the officer had sufficient cause The officer’s marihuana. possessed that defendant of common light in must be assessed conclusions and common sense. experience in holder defend If the officer had seen a cigarette reasonable for it would have been ant’s possession, him certain, that defend to think it not likely, though had seen If the officer ant had on his person. cigarettes common experi in defendant’s a briar pipe possession, that suspect allow him to reasonably ence would is nothing There had some tobacco. pipe defendant that it involves in this case except different logic defendant possession If the officer sees contraband. him holder, reasonable then is equally of a roach marihuan defendant is in possession suspect a.1 against engaging exercise. We in a semantic 1Defense counsel cautions assume, contrary, are used that words absent evidence to should meaning.
convey their normal * * cigarette.” Third marijuana Webster’s "roach —* the butt of a (1971). Dictionary New International addition, In the officer observed stains the hole of (and the roach holder which he inferred defendant testified) were marihuana residue. That observation suspicion makes the officer’s reasonable all the more warranted.2 majority
I believe the statement of the that Officer testify opinion "Zahar did not as to his as to the primary use of roach holders” to be either mistaken or *6 hypertechnical. reading A fair of the record is other- wise. He testified:
"Q you Could items, describe particular how those particularly holders, roach clips and roach describe what are, those their purpose, and they appear, how if there’s any stereotype that can be made with to them? respect
"A Basically talking we’re about two different items. A roach holder would resemble a cigarette holder of sorts. The marijuana cigarette usually placed is into hole. And then the smoke is drawn through the holder itself. Through a mouthpiece. And way.” taken that agreed questioner On cross-examination he with the that a roach holder "could be” used to smoke tobacco cigarettes,3 cigarette but he never testified that smok ing any purpose. other non-marihuana use was its smoking only purpose Marihuana is the for a roach holder to which he testified. The fact that a use other purpose possible than its is does not diminish its primary purpose smoking any for marihuana more purpose spoon than the of bent, burnt as a tool for ingestion heroin is lesser because it "could be” used to simply eat cornflakes. This record does not majority’s conclusion that "we do not construe Zahar’s testimony being to the effect that the use of holding Parks, Tarpley, Jr., 2Our in State App State v. 5 Or (1971), by majority P2d 1246 cited distinguishable. pipe is A in hashish transport strongly a vehicle used for implies presence less hashish in vehicle, my judgment, possession paraphernalia than of marihuana on person implies personal possession Also, one’s of marihuana. the observa- residue, indicating implement, distinguishes tion of use of the these facts Parks, Tarpley. large inch, opening one-quarter The diameter of the holder is not one-half inch. It is too small to hold a standard size manufactured cigarette. legitimate pur-
a roach holder was other than poses.” contrary, holder for To the the use of a roach smoking only purpose is to which marihuana why suspected testified, Zahar and that is Officer possession of defendant’s marihuana. reasons, I had the officer
For these believe upon cause, observations, based lawful possession of marihuana believe that defendant was and the search was therefore valid.