State v. Herbert
729 P.2d 547
Or.
1986
Check Treatment

*1 January reassigned the decision of March Argued and submitted part; the trial court part the decision of and reversed is affirmed for trial November remanded and case is reversed OREGON, OF STATE Review, on Respondent HERBERT, C. JERALD on Review. Petitioner S32163) A28263; (TC 29153; SC CA P2d 547 Linde, J., joined. Lent, J., opinion in and filed which dissented *2 Deputy argued Estes, Defender, Salem, Ernest E. Public petition petitioner the cause and filed the for on review. With Gary petition him on the and additional memoranda was D. Oregon, Babcock, Public Defender Salem. Attorney

Stephen Salem, Peifer, General, F. Assistant respondent the cause for on review. Campbell, Lent, Linde, Peterson, Justice, and Before Chief Jones, Carson and Justices.

CARSON, J. opinion Linde, J., Lent, J., an in which dissented and filed joined.

CARSON, J. arresting police is whether the issue in this case lawfully paperfold1 he had observed seized officer defendant following clothing defendant’s remove from his activity drugs. to criminal arrest for a crime unrelated crossing parking lot, While store outstanding appear on a for failure to on an warrant arrested charge arresting Suspended. Driving told While get some identification officer that wanted riding. Defendant walked he had been from the truck which got into the him. Defendant to the truck. The officer followed truck, open, leaving sat down and reached into the door pocket pulled paperfold and, his out a while bib overalls. He placed attempting hand, to distract the officer with his other glovecompartment fold on an shelf beneath in the truck. training upon that,

The officer testified his experience in the of controlled substances and identification surrounding the circumstances defendant’s removal opaque clothing, from his he believed that *3 paperfold through contained contraband. He reached the picked up paperfold, asking defendant, door and the “What this?” answered, Defendant “What is The officer what?” paperfold gave defendant, showed the no but defendant response. jail.

The officer took At defendant the opened station, the and field the officer tested The The test revealed “the of cocaine.” contents. Laboratory sent to the State Crime officer then analysis, which confirmed the contents chemical obtained. cocaine. No search warrant was a Con- was indicted for Possession of 475.992(4). filed a motion ORS He trolled Substance. suppress grounds that of cocaine on the (2) (1) warrantless; and seizure of the were: search arrest; and consent; not incident to not without page out of The seized from defendant was made from tom magazine. edges not fall out. It measured The folded so that the contents would were by one inch one-half inch.

upon probable cause. The state that the limited search of the truck and the seizure of the were valid under the doctrines of search incident plain view, to arrest and citing Elkins, State v. 245 Or (1966), Coolidge New Hampshire, 443, 2022, 403 US 91 S Ct 29 L Ed 2d 564 (1971).

The trial court suppressed the paper- evidence of the contents, fold and its concluding that the officer did not have probable cause to believe that the contained contra- band, and thus that a crime committed in his presence, which would justify the seizure.

The state appealed pre-trial order, suppression pursuant 138.060(3). to ORS The issue that the state appealed was whether the police officer lawfully to seize the paperfold from the truck in which sitting. Court of considered the case in banc. concluded that the officer had make a warrantless seizure of the paperfold I, under Article section of the Oregon Constitution and the Fourth Amend- ment to the United States Constitution. Herbert, Or App (1985). 705 P2d 220 The majority reversed suppression order as to the paperfold and went on to consider validity subsequent opening of the paperfold and the testing of its contents. The majority concluded that these subsequent analyzed events must be separately, and that because practical there was neither necessity exigent nor circumstances, a search required, warrant was citing State v. The majority affirmed the suppression of the evidence of the paper- contents of the I, fold under Article section 9. Three separate opinions were also filed in that court. *4 petitioned for review on two grounds:

that the Court of Appeals did not give proper deference to the trial court’s of findings historical fact or to the inferences therefrom; flowing that the Appeals’ Court of misapplied this court’s decision in State v. supra.

PROBABLE CAUSE find court’s by the trial courts are bound Appellate legal court’s the trial fact, by but not of historical ings Gierloff, Krummacher v. conclusions. Gladden, 485, 443 P2d 621 Or (1981); Ball v. factual, a legal, is a not

The determination of certainty. require cause does not conclusion. Probable fact: following findings of The trial court made the by training received the normal “1. The officer had of the detection of and identification officers for controlled substances. ordinary distinguishable paper

“2. The fold was from by quality paper only by shape, not the kind of of its folded paper that it was. paper opaque. was

“3. user or trafficker “4. The defendant was neither a known in substances. the illicit business of controlled nonrelated, being arrested on a i.e.

“5. Defendant was drug charge, not related to the traffic matter. paper his bib

“6. The defendant removed the fold from pocket presence overalls front of the officer and a manner that seemed to be furtive to officer. suspicious paper

“7. The officer was that fold con- tained cocaine.”

The trial concluded: court

«* * * jn case, me, through this before there is no bottle seen, any suspicion there of which the contents can be nor is of a controlled substance. paper might possible that the fold contain cocaine. “It was paper in a fold and had been The officer had seen it before suspect transported in that man- taught that cocaine was * ** enough. fold could possibility ner. A is not small, fishhooks, pieces just possibly unsnelled have as held being and were a calculator which had been disassembled girls repairman, taken to a a broken necklace or chain jeweler, number other taken to the or a wear things, such as radish seeds. (1981)], Alpert, “In App Or [52 envelope suppressed as cocaine in bank well

cocaine is not compact. me that if the container in ladies It seems to *5 242

transparent/translucent, (balloon or of such an odd nature pocket), pliable with contents in shirt or a container which discernment, palpable lends itself to there will have to be more present support probable circumstances than those here to cause to seize.” argues that the trial court’s statement that paperfold could just possibly have been used to store or items, fishhooks,

transport small such as unsnelled or jewelry seeds, radish opaque paperfold establishes that an is not such unique it, more, container drugs of illicit that without provides probable cause believe that it contains a controlled substance. drugs may uniquely Some containers of illicit be so the storage transportation associated with and of controlled unique substances their packaging might provide, that alone training experience to an officer with and in the area drug detection, probable they cause to believe contain a controlled Examples unique substance. of such containers might be See, Brown, e.g., balloons or tinfoil bindles. Texas v. 460 US 1535, 75 (1983) (officer S Ct L Ed 2d probable cause to believe tied-off balloon contained an illicit sub stance); (Jones, J., supra, 295 Or at 359 specially However, concurring). required we are not here decide whether an opaque paperfold unique is such a container drugs. container, of illicit In addition to the shape of the other gave facts officer probable cause to believe that paperfold contained a controlled substance. These additional (1) facts were: defendant was under and taken to arrest searched; (2) he jail where would have been defendant attempted furtively to distract the officer while defendant (3) paperfold pocket; removed the from his and truck, failed to get any look or identification from the gave wanting which was the reason he the officer for to return to the vehicle. When these additional facts are considered together paperfold, give with the there were sufficient facts to probable the officer con believe Appeals tained contraband. We conclude that the Court of gave proper findings to the trial of historical deference court’s fact and to the inferences consistent therewith. Keller, 622, 628, lawfully seized. See State v. Elkins, (1973); supra. State

The state issue argues persuasively (or properly Appeals) before this court the Court of is whether paperfold. In the cause to seize the the officer had suppress court, defendant moved to trial paperfold for the reason that the and its contents illegally to the trial court were: seized. The issues lawfully place officer was in the where whether the plain view; whether observed the officer had contraband.2 to believe the contained appeal only question presented in the state’s lawfully arresting “Did the officer was: sit- from the car in which defendant was seize cross-appeal, ting?” the first Defendant did not but stated for *6 respondent’s subsequent time in his brief that the search of Nevertheless, the without a warrant was unlawful. Appeals subsequent addressed the issue of the opening testing contents, of the and the of its holding both unlawful.

Because the Court of addressed the issue and developed because no additional evidence need be in the trial issue, fact, court on this which is an issue of law and not of we need not remand this case to the trial court to make a process determination of to the start all law have review over. The facts and the issue are now this court. before probable have stated

We that the officer had seize the and that the officer the believed officer, contained contraband. Because the based upon experience, his had cause to believe that the paperfold paperfold right contraband, the had the contained he had the to search and, therefore,

for controlled substance right opened open that container. the container was Once right discovered, and had the to test it. the contraband (1986). Owens, 196, State v. 302 Or 729 P2d 524 suppressing of The trial court erred in paperfold. part Appeals’ decision the That of the Court of reversing suppression affirmed. That the of the 2By opinion, letter the trial the sole issue in this case was: “Did court stated that grounds paper have the fold contained reasonable to believe [the officer] and, therefore, in his which contraband a crime was committed justified seizure of the fold?”

part Appeals’ affirming suppres- of the Court of decision the of the of the is reversed. This case is sion contents remanded for trial.

LENT, J., dissenting. Owens, (1986), As in State v. 302 Or 729 P2d 524 chemically analyzed its police opened the container Owens, opaque. Perhaps contents. Unlike the container was reason, opening the majority for this describes Owens, supra, Or at container as a “search.” State Cf. right The majority 199. concludes that had the police officer, on his container because experience, that a controlled cause to believe majority substance would be found within the container. The testing also concludes that the warrantless of the substance constitutional, Owens. citing alone, however, Probable cause does not justify See, Wilson, e.g., warrantless search. Matsen/ majority justify does not any warrantless the container under opening exception addition, requirement. the warrant In for the reasons stated Owens, my Or at supra, dissent in State v. justified testing has not the warrantless contents of the container.

Linde, J., dissenting opinion. in this joins