Dеfendant appeals his conviction for attempting to use a dangerous weapon, ORS 166.220, and for two counts of possession of a controlled substance, contending that the trial court erred in failing to suppress evidence seized from his person following an allegedly illegal stоp and frisk. We affirm.
On February 18, 1978, at approximately 5 p.m., a Portland police dispatcher notified all patrol units that a certain described woman was using and attempting to sell a stolen VISA card at the Ace High Tavern. Within a few minutes, Officers Taylor, Brose and Sinnot arrived at the scene in separate vehicles. Taylor observed the suspect and defendant conversing in front of the tavern, approached the two and аsked for identification. Defendant produced his driver’s license and, as Taylor handed it to Brose for a records check, the suspect handed the stolen credit card to a woman bystander. Taylor seized the card and arrested both women.
Brose did not see the arrests, because he was in his patrol car running a computer check on defendant, which revealed that he was on probation for possession of a controlled substance and that there were no outstanding warrants for his arrest. After the two women were arrested, defendant began to walk with an unnatural shuffle-step with his hands in his pockets, away from Taylor and toward Brose’s car. When defendant arrived alongside the car, Brose got оut, told defendant to get his hands out of his jacket pockets, and frisked him. When Brose felt the outlines of a gun in a pocket, defendant immediately triеd to grab the weapon. A struggle ensued, with Brose attempting to keep defendant’s hand out of the pocket containing the gun. Brose eventually applied a choke hold and was assisted by the other two officers in subduing defendant, who was then arrested for being an ex-convict in possеssion of a firearm and for unlawful possession of a weapon.
A subsequent search of defendant’s pockets revealed a locking-blаde knife, a spoon, two syringes, 12 clear plastic baggies containing marijuana, 2 loose “CIBA-34” Ritalin tablets, a container with several Ritalin tablеts, a container with suspected raw opium and a Sucrets box containing 17 clear plastic “bindles” of white powder. He was eventually charged with and convicted of carrying a dangerous weapon with *28 intent to use and possession of heroin, Ritalin and more than one ounce оf marijuana.
Defendant first contends that the trial court erred in refusing to suppress the pistol and various drugs seized from his person, because he wаs stopped without reasonable suspicion that he had committed a crime and was frisked without grounds for a reasonable belief that he was armed and dangerous, in violation of ORS 131.615 to 131.625. Even assuming that the stop and frisk were unlawful, however, we conclude that the court did not err in refusing to supрress the evidence. In
State v. Gaffney,
«* * * pUrp0ses underlying the exclusionary rule would not be well served by the exclusion of evidence of indeрendent crimes directed at officers who illegally stop, frisk, arrest or search. Moreover, the results of such an extension of the exclusiоnary rule would be intolerable. A person who correctly felt that he had been illegally stopped, for example, could respond with unlimited violence and under an exclusionary rule be immunized from criminal responsibility for any action taken after the stop. That cannot be an аppropriate rule. * * *”
See also State v. Burger,
The remaining question is whethеr the search of defendant’s person and the containers seized therefrom exceeded the permissible bounds of a search incidеnt to arrest as enunciated in
State v. Caraher,
Defendant was arrested for being an ex-convict in possession of a firearm and for unlawful possession of a firearm. However, the officers had probable cause to arrest him for the crime with which he was charged and for which he was ultimately convicted. It matters not that the officers articulated the wrong reason for the arrest; the arrest was lawful.
State v. Cloman,
“Basically he is going to sit behind me while we go to the police station. He can slip the handcuffs down in front of his knees. If he has any more weapons he could shoot me in the back on the way to the police shop. * * *”
Having found defendant to be in possession unlawfully of a pistol that he intended to use, the officer was entitled to make a search of defendant’s clothing, both as an incident to the arrest and for his own protection.
In the course of searching for other weapons, the officers uncovered several clear plastic bags that, upon external inspection, revealed a substantial quantity of marijuana. They also uncovered two loose Ritalin pills, the naturе of which was plainly evidenced by their “CIBA-34” inscription. After discovering those drugs, the officers had probable cause to arrest defendant for possession of controlled substances. In performing a search incident to the arrest for that charge, they were permitted to seize and open the closed containers, including the Sucrets box. In
State v. Caraher, supra,
the court upheld the warrantless seizure of evidence from Caraher’s purse, bеcause “the arrest was for possession of a controlled substance [and] it was reasonable to believe that defendant would carry cpntraband in her purse.”
Although the testing of thе contents of the container is considered a form of search apart from the initial seizure,
State v. Lowry, supra,
Affirmed.
Notes
Defendant’s contention that the trial court erred in imposing a minimum sentence under ORS 144.110 is without merit.
State v. Brown,