State v. Brown

695 P.2d 1383, 72 Or. App. 342, 1985 Ore. App. LEXIS 2497
CourtCourt of Appeals of Oregon
DecidedFebruary 27, 1985
DocketDA 249576-8301, DA 249577-8301; CA A29759
StatusPublished
Cited by2 cases

This text of 695 P.2d 1383 (State v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brown, 695 P.2d 1383, 72 Or. App. 342, 1985 Ore. App. LEXIS 2497 (Or. Ct. App. 1985).

Opinion

BUTTLER, P. J.

Defendant appeals his convictions for carrying a concealed and loaded handgun in his automobile. ORS 166.250; Portland City Code § 14.32.010. He assigns as error the trial court’s refusal to suppress evidence of the handgun seized after a nonconsensual, warrantless search of a closed leather bag seized as a result of a search of the locked trunk of his automobile. Because we conclude that the evidence should have been suppressed, we reverse.

At about 1:15 in the morning, Portland Police Officers Hudson and Krohn observed defendant lawfully driving his automobile in which there was a passenger. The officers stopped defendant, because they had received a complaint from a Ms. Tillman the previous morning that defendant had hit her with his fists and had taken her black clutch purse containing $15 or $20. Hudson was familiar with both defendant and Tillman, having previously investigated a domestic disturbance involving them. He described the present incident as a “beef’ that Tillman had with her boyfriend. She had told the officers that defendant always carried a handgun in a “black purse,” either on his person or in his car. During the earlier domestic disturbance investigation, Hudson reported that defendant had had a gun in his pocket. The officers put out a bulletin requesting officers to look for defendant’s 1974 white and orange Cadillac, giving the license number. No effort was made to obtain a warrant for defendant’s arrest or for the search of his car.

The trial court found that the reason for the stop was to arrest defendant on the assault and theft charges and that Hudson informed defendant of the complaint and about the accusation that he possessed a weapon; he also advised defendant that he was under arrest for assault and theft. Defendant did not respond. He was asked for, but refused, permission to search his automobile. Those findings are supported by the record and, although the evidence as to what defendant was told is ambiguous, we are bound by them. Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968).

Notwithstanding defendant’s refusal to consent, the officers searched the passenger compartment and glove box. Krohn then opened the locked trunk, and the officers saw a black leather bag, which they said was similar to the one [345]*345described by Tillman as the bag in which defendant carried a handgun. It is not clear from the record whether the bag had a zipper, but it was closed. When Krohn picked it up, it felt very heavy, and he could feel a handgun inside. He opened the bag and found a loaded revolver. The bag and its other contents were seized along with the gun.

Sometime after the stop, two other police officers arrived but, according to Hudson, “at that point the situation was under control.” Krohn testified that defendant was handcuffed during the entire search. Hudson could not remember when, or if, defendant was handcuffed, but said that he was placed in the patrol car when “we decided we were going into the trunk and get the gun out.” The passenger was not arrested, and defendant’s car was released to him. Defendant was taken to jail and booked on the assault and theft charges; however, Tillman never signed complaints charging him with those crimes.

Defendant does not challenge the officers’ authority to stop his automobile or their authority to arrest him on Tillman’s complaint of assault and theft. Neither does he challenge the officers’ authority to search for weapons on his person and within the area of his immediate reach. See State v. Davis, 295 Or 227, 242, 666 P2d 802 (1983); State v. Chinn, 231 Or 259, 267, 373 P2d 392 (1962). His challenge is to the officers’ authority to extend their search for the gun to a closed container within the locked trunk of his automobile without his consent and without a warrant.

The case was tried, and is argued here, as if the only question is whether the officers were permitted to search for the gun. We will discuss that question first, but note that, if they were entitled to search for the victim’s purse in the locked trunk, seizure of the pistol was lawful.1 Defendant’s principal argument is that the officers lacked authority to search the trunk for the gun, because they had no basis for believing that the gun was a permissible object of search or seizure. ORS 133.535. In the alternative, he argues that the circumstances were not sufficiently exigent to justify a warrantless search, because he was in custody and the officers had the option of [346]*346securing his automobile or seizing the bag while seeking a warrant before searching further. The state contends that the search was lawful on any one of three grounds: (1) it was incident to defendant’s arrest; (2) it falls within the “automobile exception” to the warrant requirement; (3) it was authorized by the “stop-and-frisk doctrine.”

The trial court, relying on United States v. Ross, 456 US 798, 102 S Ct 2157, 72 L Ed 2d 572 (1982), upheld the search and seizure. In that case, the United States Supreme Court held that

“* * * the scope of the warrantless search authorized by [the automobile exception] is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” 456 US at 825.

We look to state law first to determine whether the searches and seizures were lawful; only if we determine that they were lawful as a matter of state law do we need to decide whether they were prohibited by federal Fourth Amendment principles such as those applied in Ross. State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983).

We agree with defendant that the officers did not have authority to search the locked trunk of his automobile for the gun. On the basis of the information supplied by the victim, the officers did have probable cause to believe that defendant had a weapon either on his person, in the passenger compartment or glove box of the automobile or in the trunk. When they did not find the weapon on his person, in the passenger compartment or in the glove box, they had probable cause to believe that it was in the trunk. That fact, standing alone, however, does not supply probable cause to believe that the gun was subject to search and seizure under ORS 133.535. Compare State v. Wright, 30 Or App 11, 566 P2d 185 (1977) (defendant was ex-convict and gun was used in the alleged crime), and State v. Jackson, 33 Or App 139, 145, 575 P2d 1001 (1977), rev den 283 Or 99 (1978) (defendant was ex-convict) with State v. Mays, 19 Or App 518, 528 P2d 109 (1974) (no probable cause to believe gun was contraband). It is a crime to carry a concealable weapon in a motor vehicle without a license to do so, unless one of the other statutory exceptions is [347]*347applicable. ORS 166.250.2

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Related

State v. Brown
721 P.2d 1357 (Oregon Supreme Court, 1986)

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Bluebook (online)
695 P.2d 1383, 72 Or. App. 342, 1985 Ore. App. LEXIS 2497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-orctapp-1985.