Dеfendant appeals a judgment of conviction for escape in the third degree. ORS 162.145. He assigns error to the trial court’s denial of his motion to suppress evidence of a controlled substance discovered by a police officer conducting an inventory of a car in which defendant was a passenger. Defendant contends that the officer violated thе police department’s vehicle inventory policy by opening a closed container — a small plastic bag that had been placed inside a folded bottle cap — that the officer discovered, along with a used syringe and meth pipe, under defendant’s car seat. The state argues that the presence of the plastic bag, in conjunction with the drug paraphernalia found next to it, gave the officer probable cause to believe that drugs were present and that opening the plastic bag constituted a reasonable search “incident to an arrest” for which no warrant was required. We agree with the state and therefore affirm.
The relevant facts are not in dispute. Defendant was a passenger in a сar that a Beaverton Police Officer, Cockreham, stopped for a traffic infraction. Cockreham determined that there was an outstanding warrant for the driver’s arrest. In the course of arresting the driver, Cockreham asked defendant and another passenger to step out of the car so that the officer could conduct an inventory of its contents. During that invеntory, Cockreham found the following items under the seat where defendant had been sitting: a used syringe containing apparent drug residue, a glass methamphetamine pipe, and a bottle cap that was folded over and that had a small plastic bag protruding from it.
Believing that the bottle cap contained drugs, the officer opened it and extracted the bag. It contаined a crystalline substance, later tested and determined to be methamphetamine. Cockreham asked the driver of the car who owned the drugs, and the driver indicated that they belonged to defendant. Cockreham asked another police officer on the scene, Carroll, to handcuff defendant; when Carroll attempted to do so, defendant fled. A foot chаse ensued and defendant was later apprehended.
Based on his conduct of fleeing the scene, defendant was charged with third-degree escape. Before trial, defendant moved to exclude evidence of the drugs that Cockreham had found on the ground that they were the result of an illegal search. Defendant argued that, under the Beaverton Vehicle Invеntory Policy, Cockreham was not allowed to open closed containers such as defendant’s folded bottle cap.
At the hearing on defendant’s motion, Cockreham testified that he had first seen the car as it pulled out of an apartment complex where the police frequently had responded to drug-related calls. Cockreham also testified that, when he found the bottle cap during the inventory, he believed, based on his training and experience, that it contained drugs. When asked whether there was anything distinctive about the container that led him to the conclusion that it was a drug container and not simply trash, Cockreham responded, “its proximity to the * * * pipe and the syringe, being folded up in a way where it was containing a plastiс bag * * * I almost had no doubt what was inside of it.”
The trial court denied defendant’s motion to suppress evidence of the drugs, finding that the police officer conducted the inventory in accordance with the applicable policy. After a trial to the court on stipulated facts, defendant was convicted of third-degree escape.
On appeal, defendant renews his argument that Cockreham violated the vehicle inventory policy when he unfolded the bottle cap and opened the plastic bag. It follows, argues defendant, that Cockreham relied on illegally obtained evidence when he decided to arrest defendant and that defendant’s arrest itself was therefore illegal. On that basis, defendant challenges his conviction for third-degree escape, arguing that he cannot
In response, the state does not argue that the opening of the bottle cаp was a legitimate component of the vehicle inventory; it argues instead that defendant’s arrest was lawful because the arresting officers had probable cause to believe that the bottle cap contained a controlled substance and were therefore entitled to open it as a search incident to defendant’s arrest.
We may affirm a decision for a reason different from one argued to the trial court if the facts in the existing record provide adequate grounds to do so and the opposing party would not have created a different record had the issue been raised.
Outdoor Media Dimensions Inc. v. State of Oregon,
In
State v. Walker,
We begin with the question whether the container in this case — a bottle cap bent around a plastic bag — may be said to “announce it contents,” and we readily conclude that it does not. Whether a container “announces it contents” depends on whether those contents are so plainly obvious that thеre is no privacy interest to protect. In
Owens,
for example, the court held that, because a small transparent vial containing drugs “announced its contents,” the officer who opened it and tested its contents had not conducted a “search” that is subject to the protection of Article I, section 9.
There is nothing about a bottle cap that is bent around a plastic bag,
per se,
that can be said to announce to the world that it contains drugs and only drugs. Indeed, there
is no evidence that bottle caps around plastic bags are often used in such a manner. Although small plastiс bags are very frequently used to carry drugs,
see, e.g., State v. Rocha-Ramos,
We turn to the question whether the officer’s search of the closed container nonetheless was permissible because he had probable cause and an excеption to the warrant requirement was applicable. Probable cause exists only if the arresting officer subjectively believes — based on the underlying facts and the officer’s training and experience — that it is more likely than not that an offense has been committed and that belief is objectively reasonable.
Owens,
Some containers, by their very nature, may be so commonly associated with the storage of controlled substancеs that their packaging alone provides, to an officer with proper training and experience in the subject of drug detection, probable cause to believe that they contain a controlled
substance.
State v. Herbert,
In addition to the qualitiеs of the container itself, other circumstances may give rise to
The presence of drug paraphernalia can, in some circumstances, give rise to probable cause that a nearby container contains drugs. Two cases are particularly instructive
in that regard. In
Lane,
a police officer conducting an inventory of the defendant’s pickup truck found a gun, a marijuana pipe, a small scale, and a film canister. The film canister was on the front seat. The police officer opened the canister and discovered methamphetamine.
In
Poulson,
by contrast, an officer found a film canister inside a fanny pack that he had been authorized to search. Alongside the film cannister was a plethora of drug paraphernalia, including razor blades, scales, a powder grinder, and a pipe. The officer opened the film canister and found cocaine. We held that the officer’s discovery of the drug paraphernalia “together with his knowledge and experience that film canisters found close to drug paraphernalia often contain drugs, gave him grounds reasonably to believe that there were drugs” present in the canister.
Applying the foregoing principles to the facts of this case, we conclude thаt Cockreham had probable cause to believe that the bottle cap folded around the plastic bag that he found under defendant’s seat contained drugs. Cockreham testified that he had “almost no doubt” that the cap was concealing drugs inside the bags. Under the circumstances, we conclude that that belief was objectively reasonable: Cockreham was conducting an inventory of a car that he had earlier noticed was being driven suspiciously in an area that he knew to be a frequent source of drug calls. The bag in question was found on the floor of the car under defendant’s seat, next to a methamphetamine pipe and a used syringe containing apparent drug residue. In that sense, this case recalls Poulson in that the сontainer was found in the immediate vicinity of drug paraphernalia. Moreover, a plastic bag, much like a film canister, is often used to carry drugs. Indeed, a plastic bag that is partially stuffed into a folded bottle cap, when found next to drug paraphernalia, is arguably inherently more suspicious than the film canister found by the officer in Poulson. We therefore conclude that, at the point at which Cockreham found the syringe, the methamphetamine pipe, and the plastic bag, he had probable cause to believe that the crime of possession of a controlled substance had occurred.
Because the officer had probable cause to believe that possession of a controlled substance had been committed, a reasonable search incident to arrest for evidence
In this case, the record shows that the officer’s search was limited to the contents of the plastic bag itself, which he had found immediately under defendant’s seat, and which he opened immediately. The search was thus rеasonable in time, place, and scope.
Affirmed.
Notes
The analytical distinction between whether a container “announces it contents” and whether an officer has probable cause to believe that a container holds drugs unfortunately has been blurred in some of our cases.
See, e.g., State v. English,