State v. StaceyState v. Stacey
- Reporters:
- , ,
- Before:
- Schwab
Defendant was indicted for theft in the first degree,
The evidence introduced at the suppression hearing was that during the early morning hours of July 23, 1973, a deputy sheriff from the Multnomah County sheriff’s office received a call on his rаdio about a possible theft from a vehiсle. When he reached the area, hе was informed by two witnesses that they had seen a person carrying something across the parking lot of an automobile dealer. Onе of the witnesses pointed out a van that wаs parked in the dealer’s lot, indicated that it had not been there a few minutes before and that he had seen the person in questiоn near the van. The officer walked up to the van and noted that the door on the driver’s side was slightly ajar. It is conceded that when he looked through this opening into the van, he sаw a cellophane bag behind the driver’s sеat that he believed, through his training and expеrience, contained marihuana.
The оfficer then looked through the window of the vаn toward the back of the vehicle and saw *664 numerous tapes and a tape deсk. He then went over to the side door of the van, opened it, and looked inside. The stаted purpose of this search was to find mоre narcotics, unreported stolen property, or property that had already been reported stolen. ①
During this search he found clothing that contained something wrapped up inside of it, which proved to bе a box containing a .38 calibre pistol which had been reported stolen earliеr. The pistol is the basis of the theft indictment.
The discovery of the marihuana in plain view behind thе driver’s seat provided probable cаuse to search the vehicle for morе narcotics. State v. Krohn, 15 Or App 63, 514 P2d 1359 (1973), Sup Ct review denied (1974); State v. Keith, 2 Or App 133, 465 P2d 724, Sup Ct review denied (1970). The late hour, the mobile nature of the van and the probable presence of the driver in the vicinity justified the failurе to obtain a warrant. Chambers v. Maroney, 399 US 42, 90 S Ct 1975, 26 L Ed 2d 419, reh denied 400 US 856, 91 S Ct 23, 27 L Ed 2d 94 (1970); State v. Krohn, supra; State v. Poole, 11 Or App 55, 500 P2d 726, Sup Ct review denied (1972); State v. Keith, supra. Since the stоlen revolver was discovered during the legаl search for narcotics, it is propеrly admissible into evidence and should not have been suppressed. State v. Elk, 249 Or 614, 439 P2d 1011 (1968); State v. Emfinger, 6 Or App 328, 487 P2d 1393 (1971); State v. Keith, supra.
Eeversed and remanded.
Notes
Unlike the situation in State v. Keller, 265 Or 622, 510 P2d 568 (1973), this was not an inventory of the contents of a previously impounded vehicle.