*1 20, 1984, Arguеd and submitted December affirmed December OREGON, STATE OF Appellant, TALLMAN, JOHN D.
Respondent. A31396) (J83-2765; CA *2 Attorney General, Salem, Peterson, Assistant Brenda J. appellant. argued brief were her on the for With the cause Attorney Frohnmayer, General, and James E. Moun- Dave Jr., General, Salem. tain, Soliсitor argued Deputy Defender, Salem, Estes, Public Ernest E. Gary respondent. D. him on brief With the cause Defender, Babcock, Salem. Public Presiding Judge, Hoomissen and and Van Gillette, Before Young, Judges.
GILLETTE, P. J. dissenting. Hoomissen, J., Van GILLETTE, P. J. appeals pretrial suppressing
The state а order evi- dence found motor during warrantless of defendant’s vehicle. affirm. We County Douglas Deputy
A Sheriff saw defendant and a companion car in an sitting parked front seat of a unlighted area of a parking appeared lot. men to becоme nervous and make furtive movements on aware of becoming presence. the deputy’s deputy, appeared they To the were reaching “they down to the floor as if stash trying something the car.” The question decided car’s occupants. approach, On his he “noted incense and a smell of marijuana.” burnt When questioned odor, about defendant denied that had been anything smoked in car. The deputy asked defendant and his companion step from the car. He then searched the front аrea, passenger discovering containing plain on the view front floor recently board and a smoked water pipe under front seat. (made
After within two minutes of instituting search), continued his search. *3 Several grocery sacks were on the rear seat. deputy The testified that defendant companion appeared his become more when bags. nervous he neared the One contained groceries; another, books. A bag third was folded closed. The deputy picked up bag the and found it to bе lightweight about one-half full of a soft material. He smelled a of marijuana emanating from He opened it. the bag, revealing approximately seven and one-half of marijuana. ounces He then arrested defendant. order, its suppression
In
the trial court found that
there
was
cause to
but,
search the vehicle
relying
499,
State v.
(1981),
53 Or
On the state was search First, that the had argues grounds. on two justified exigent and that circumstances cause to search sack. opening get failure to a warrant before excused his inconsistent with supra, is extent that State v. To the case should be considered says, the state analysis, this Ross, 456 US States have been modified United (1982). Second, argues the statе 2d 572 72 L Ed S Ct arrest and was therefore incident to a valid the search was Flores, 68 Or Caraher, and State v. supra, proper under State 999, rev den 298 Or 685 P2d theory of search the state’s argues Defendant appeal. first time on raised for the being incident to arrest is аrgument in the state’s theory implicit We think that Caraher, which details controlled the case was below Oregon law. to arrest under elements of a search incident The circumstances particular reach the issue. We therefore complications. do, however, peculiar raise some case this marijuana, of less than one ounce Possession search, is deputy’s argues justified state offense that a “crime.” rather as a “violation” statutorily defined 475.992(4)(f). 161.505; ORS ORS to arrest for violation. authority pеace officer’s removed have could not 133.310(1)(b).1 Because ORS subsequent defendant arrested peace A officer incident to an arrest.2 could not have been offense for the for a violation person detain a only “stop and reаsonably related to the violation investigation purposes a citation and issuance of offense, person of the identification 133.072(2). ORS person.” to the discovery of the actions, including his deputy’s justified logically pipe, and the water offense. Hоw to the reasonably related investigation an 133.072(2) legislative preservation
ever, is not because, Flores, misplaced supra, at the time of is The state’s reliance on *4 case, authority See police to arrest for a violation. officers had the search Flores, App supra, n 9. Or at 637 68 133.310(l)(b) previously of vio treatment inconsistent eliminates ORS infractions, prohibited ORS compared arrest was for which with traffic lations sentence, jail permits until 1983 484.353(2)(a). Although kind of offense neither arrest, Committee not. See House infractions could to but traffic could lead violations Minutes, 30, 1983, May Judiciary, Exhibit O. SB searches in exception search incident arrest for warrantless permit it connection with violations. Neither does extensive place this “A peace сustodial searches such as took case. person pursuant only officer detain a to this section investigate such as is reasonably necessary time 133.072(3). Here, verify person’s identity.” be search exceeded that limit. The search of the sack cannot justified as incident to an for the The state’s arrest violation. appeal theory: must stand or fall on its there second was cause, discovery after a small of amount of car, in defendant’s to believe that there was contraband enough рermit an arrest.3 car — Before reduction of the offense of of possession less than an ounce of to a we held that possession of quantities marijuana gave small rise to probable cause to search for additional contraband. See State Krohn, 63, 65, rev den Or recently, that, More we have held after discovering than one ounce of marijuana, “the officer’s observations and statements defendant and his passengers gave officers cause to search the vehicle fоr more mari- * * supra, State juana Or at 503. The negative implication of that language explicit not its —but holding something more than the mere observation —is a small of marijuana required justify amount is the belief present. more is requirement that further met by the conflicting people stories told in the car where the marijuana was found.
The question naturally arises to whether Turchik rationale was light Krohn: That necessary is, does in itself less than one of marijuana ounce more, create to search for or be must there other circumstances in addition to the contraband? We think that Turchik was correct and that Krohn is no longer control- ling. There are three reasons for our conclusion. Krohn,
First, at the time of possession the search in justifying exigent The state must show also either there circumstances contraband, any proper the warrantless search for or such that the search was incident presumed to a arrest for *5 a Class A misde- marijurana ounce of
of less than an felony a Class B there- the first conviction and meanor for 680, 1; (amended 1973, ch by Or Laws after. ORS 167.207 § 1974, 67, 2; by Or Laws repealed ch by Or Laws § amended 54). person 745, little reason for a There was ch § to be consequences possession of considering the criminal marijuana amount of precise about the particularly concerned person to conclude that a It was reasonable being possessed. However, more. might an ounce have less than possessed who from a crime to reduced the offense legislature the 1973 when $100, regardless no more than to a fine of subject between charged, times the connection of the number of larger and of a marijuana of a small amount of possession 1; Or Laws ch more uncertain. § amount became remains 475.992(4) (f). more than an ounce Possession of 475.992(4)(a), likely to people are fеlony, ORS a Class B in that distinction possession in with limit the amount their predicate factual statutory change mind. The undermines of Krohn. incongruous, be reason is that it would
The second possession of to decriminalize legislative policy of the light pos- and to eliminate marijuana ounce of less than one to search for arrest, cause probable to hold sibility of To allow discovery of less. automatically from the more flows subject violators on that basis would intrusion of a search sanctions which of the criminal to some than law, of less of to remove. As matter intended to search for probable cause by itself create one ounce cannot more. supports this view.
Third, precedent the closest den 289 Or 839, 613 P2d rev Mepham, of whether observa question faced the (1980), this court supplied in a house on a table tion of a container warrant to search a search support cause to not, held that it did We for more entire house stating, illegal cases, presence of an some evidence “In some probable cause believe]
substance establish [to Krohn, [supra] See State v. found. material willbe of the same * * a case. The affidavit to be such not consider this *. We do reasonable warrant the provide enough facts to dоes not suspicion that the container was not the household’s entire supply.” 842. at holding, put Mepham’s
In view of its one is hard to reconcile Still, citation to taking Mepham together, Krohn. Turchik scad we think it clear that a car less than one (a violatiоn) cannot, by ounce itself, justify general Other, car. additional facts must make appear reasonable to there is more believe contraband concealed in the car.
Although possession of one ounce mari juana more, doеs not itself create cause to search for it is still determining relevant whether facts, suspicious exists. Other including actions *6 statements, inculpatory unite with the produce necessary the of probability. level v. See State 375, 692 (1984). Anspach, 298 Or 602 P2d That is we held what had оccurred in State v. supra. We now turn to the facts of this case if it determine also occurred here.
Although the officer saw defendant and his compan ion make car, furtive movements he before reached their all of those actions were sufficiently explained the by discovery of a baggie of marijuana on the pipe front floor and a water under the The sufficiently seat. odor of incense was explained evidence that incense had tray. been burned in the ash front The obvious conclusion from what the officer found was that defendant companion and his had smoking marijuana been and had used part incense as activity. The officer had reason to believe that marijuana the he belonged which found to defendant and that defendant had violated ORS (f). 475.992(4) The evidence sufficiently officer found explained the gestures. furtive There objective was no basis believing marijuana defendant had more baggie, and the officer therefore had no probable cause search further. State v. Mepham, supra. The trial court cor rectly suppressed the evidence.
Affirmed. HOOMISSEN, J.,
VAN dissenting. I suppressing would reverse the trial court’s order evidence found during search of defendant’s car. There- fore, respectfully I dissent.
722 floor deputy baggie marijuana
The
found a
recently
smoked water
defendant’s car. He found
board of
front
noted a
incense
under the
seat. He
pipe
becoming
On
aware of
the smell of burnt
made “fur-
presence,
companion
defendant
his
deputy’s
movements,
they
trying
something.
to hide
On
if
tive”
evidence,
had
I would hоld that
in the car. Consider-
believe that there was more
circumstances,
it was not unreasonable
ing
totality
the interior of the car.
searching
for him to continue
described
explanations
and conclusions
While
opinion
plausible,
are
paragraph
majority’s
final
only explanations and conclusions that
they are not the
trial court ruled
reasonably have drawn. The
deputy could
I agree.
had
cause to search
car.
that the
had
believing that defendant
He had an
basis for
objective
therefore,
and,
had
he
than that
Or
Anspach,
State v.
cause to search further. See
Caraher,
P2d
(1984);
v.
293 Or