State v. Cocke

984 P.2d 321, 161 Or. App. 179, 1999 Ore. App. LEXIS 1104
CourtCourt of Appeals of Oregon
DecidedJune 23, 1999
DocketC9604-33280; CA A96903
StatusPublished
Cited by11 cases

This text of 984 P.2d 321 (State v. Cocke) 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. Cocke, 984 P.2d 321, 161 Or. App. 179, 1999 Ore. App. LEXIS 1104 (Or. Ct. App. 1999).

Opinions

[181]*181WOLLHEEM, J.

Defendant appeals his convictions for the manufacture, delivery, and possession of a controlled substance. ORS 475.992; ORS 475.999. He assigns error to the trial court’s denial of his motion to suppress. We review for errors of law and affirm.

Portland probation officers called for police back up at a Portland home after discovering one of their probationers, Quaschnick, in the possession of marijuana and an assault-style knife. Quaschnick was found in the living room area of his home with two to three other individuals.1 All were asked to step out of the house onto the porch. Several minutes later, Officers Goldschmidt and Reyna arrived. Goldschmidt placed Quaschnick under arrest. Quaschnick indicated that, while he shared the common areas of the house, configured as a single family residence, there were separately rented bedrooms for which he could not give consent to search. However, the officers obtained consent from Quaschnick and another occupant, Gilbert, to search their rooms and all common areas. According to a police report, Reyna then accompanied a probation officer inside the house to search the downstairs common area where they found six bags of marijuana and other evidence of possible drug sale activity.

Goldschmidt then accompanied the probation officer inside and, concerned about whether all the residents were out of the house, provided cover for the probation officer to search Quaschnick’s room. The probation officer found a large quantity of marijuana packaged for sale but no other weapons. Because the three story house had many rooms and only two to three individuals were removed from the home, Goldschmidt then questioned Quaschnick and Gilbert as to whether anyone remained inside. Gilbert stated no one else was in the house. However, Quaschnick was uncertain if others were present in the house and attempted to explain which individuals lived in which rooms. At that point, Goldschmidt believed that it was necessary to “clear” the house.

[182]*182Goldschmidt explained that he concluded that a protective sweep was necessary based on several factors. First, one month before, Goldschmidt had responded to a complaint of a laser sighting coming from the house. In Goldschmidt’s experience, such lasers are commonly attached to guns or rifles for accurate shooting. Goldschmidt was also told by his former partner that a month earlier the residents of the house were observed possessing several firearms, including a Glock semi-automatic handgun. Additionally, Goldschmidt’s experience was that weapons are commonly found in conjunction with drug sale operations. Thus, his knowledge of firearms at the house one month before and of suspected drug sale activity did not, in his opinion, make for a “safe combination.” Goldschmidt’s concern was also based on the current discovery of an assault-style weapon on Quaschnick. Finally, Goldschmidt was uncertain whether other individuals remained in the house, where drug and vice officers would be required to remain for 25 to 30 minutes to inventory and process the drugs.

Goldschmidt and Officer Leloff then undertook a “protective sweep” of the house. The house had seven rooms that were rented separately and equipped with dead bolts. The officers checked all the rooms with unlocked doors and any accessible areas where a small person could hide. On the second floor, defendant’s door was unlocked and, Goldschmidt testified, ajar. It led to defendant’s bedroom on the third floor. The officers entered, encountered defendant, and noticed marijuana and packaging and growing equipment in his room. They arrested defendant, subsequently obtained consent from him to search the room further, and found two rifles in a closet adjacent to his room.

Article I, section 9, of the Oregon Constitution,2 provides safeguards against unreasonable search and seizure and, hence, protects both privacy and possessory interests. [183]*183State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986). Defendant argues that the officers conducted an unreasonable search when they entered his room. He agrees that when a police officer is at a lawful vantage point and observes contraband or illegal conduct in “plain view,” the officer has not conducted a search in the constitutional sense. State v. Ainsworth, 310 Or 613, 617, 801 P2d 749 (1990). However, he argues that the officers were not legitimately in his room when they observed the marijuana. See State v. Slowikowski, 307 Or 19, 23, 761 P2d 1315 (1988) (focusing on whether officers were legitimately on premises when marijuana was detected). Thus, defendant argues, his subsequent arrest and consent to search his room were invalid, and the evidence of the drugs and firearms is inadmissible.

The state argues that the officers were properly in defendant’s room, where they discovered the contraband in plain view, pursuant to a “protective sweep” of the house for officer safety incident to the arrest of the probationer. Maryland v. Buie, 494 US 325, 327, 110 S Ct 1093, 108 L Ed 2d 276 (1990). The trial court agreed with the state, denied the motion to suppress and, on a stipulated facts trial, convicted defendant of the manufacture, delivery, and possession of a controlled substance. ORS 475.992; ORS 475.999.

As a general rule, under Article I, section 9, of the Oregon Constitution, a warrantless search or seizure is perse unreasonable unless it falls within one of the limited exceptions to the warrant requirement. State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991). Oregon’s search and seizure law governs when an officer may enter a home, as well as the scope of searches, if any, within the home. “[In the absence of] consent, a warrantless entry can be supported only by exigent circumstances, i.e., where prompt responsive action by police officers is demanded.” State v. Davis, 295 Or 227, 237, 666 P2d 802 (1983). A warrantless search incident to an arrest can be justified to protect the safety of officers and to prevent the destruction of evidence, as well as to reveal evidence of the crime for which the defendánt is being arrested, so long as it is reasonable in light of all the facts. State v. Hoskinson, 320 Or 83, 86-87, 879 P2d 180 (1994).

[184]*184The reasonableness of searches incident to arrest has been traditionally measured by the search’s relation in time, scope, and intensity to the arrest in light of all the circumstances. State v. Lander, 137 Or App 222, 226, 903 P2d 903 (1995), rev den 323 Or 114 (1996). Thus, even in the officer safety context, we normally determine whether the search was “close both in time and space to the arrest,” and whether “the intensity of the search [was] commensurate both with the crime and what was known of the criminal.” State v. Chinn, 231 Or 259, 273, 373 P2d 392 (1962). The court has limited such searches to areas and items within the immediate control of the arrestee from which the arrestee could obtain a weapon or destroy evidence. Owens, 302 Or at 200.

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Bluebook (online)
984 P.2d 321, 161 Or. App. 179, 1999 Ore. App. LEXIS 1104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cocke-orctapp-1999.