State v. Cromwell

Court of Appeals of Oregon

State v. Cromwell

820 P.2d 888, 109 Or. App. 654, 1991 Ore. App. LEXIS 1675

CourtCourt of Appeals of Oregon

DecidedNovember 13, 1991

Docket10-89-00870; CA A64510

StatusPublished

Cited by20 cases

This text of 820 P.2d 888 (State v. Cromwell) 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. Cromwell, 820 P.2d 888, 109 Or. App. 654, 1991 Ore. App. LEXIS 1675 (Or. Ct. App. 1991).

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Opinions

[656]*656DE MUNIZ, J.

Defendant appeals his conviction for unlawful possession of a controlled substance. ORS 475.992. He asserts that the trial court erred by denying his motion to suppress evidence obtained from a warrantless search of the passenger compartment of his pickup truck. We affirm.

The facts are not in dispute: On January 19, 1989, Oregon State Police Officers Collins and Houlihan responded to a report of a prowler near a residence in Eugene. The resident told the officers that she had heard noises in the yard and then saw a vehicle drive down the road toward a boat landing, where the road dead ends. Collins located defendant’s truck parked in the middle of the roadway with its parking lights on. Defendant and a companion were seated in the truck with a jacket on the seat between them. When Houlihan arrived, he asked defendant what was underneath the jacket. Defendant lifted the jacket, revealing a small round container, which defendant told the officers contained marijuana. Collins asked defendant if he had more drugs in the truck, and defendant produced a bag of marijuana from his pocket. The total amount of marijuana was less than one ounce. Collins asked defendant, again, whether there were more drugs in the truck. When defendant responded negatively, Collins requested permission to search the truck. The trial court found that defendant initially denied Collins’ request but consented when Collins told him, “[I]f I don’t get consent, I’ll impound and search it anyway.” Collins then searched the truck and found methamphetamine in a container in the pocket of a jacket that was on the seat of the pickup.

Defendant argues (1) that the search was not a permissible search incident to arrest, because possession of less than an ounce of marijuana is not an arrestable offense; (2) that ORS 167.247¹ is void for vagueness; (3) that the “automobile exception” to the search warrant requirement [657]*657does not apply, because the truck was parked when the officers encountered it; and (4) that defendant’s consent to search the truck was invalid, because the officers obtained his consent through coercion. The state argues that defendant’s consent was not involuntary, because Collins did not threaten to do anything that he was not legally entitled to do, and that, in any event, consent was unnecessary, because the search was authorized under ORS 133.072,² ORS 133.535,³ ORS 167.247 and the automobile exception.⁴ We hold that the search was authorized under the automobile exception to the warrant requirement. Therefore, we need not reach defendant’s other arguments.

Defendant does not challenge the lawfulness of the stop, Houlihan’s question about what was under the jacket or Collins’ question about whether there were more drugs in the truck. Defendant’s sole challenge is to the validity of the search that revealed the methamphetamine.

Police officers may conduct a warrantless search of an automobile provided that

“the automobile is mobile at the time it is stopped by police [and] probable cause exists for search of the vehicle.” State v. Brown, 301 Or 268, 274, 721 P2d 1357 (1986).

Defendant asserts that the automobile exception is inapplicable, because the officers did not have probable cause to search his truck and the truck was parked when the officers encountered it.

Police must have “probable cause to believe that a person’s automobile * * * contains contraband or crime evidence.” 301 Or at 276. (Emphasis supplied.) Possession of less than an ounce of marijuana is a violation, not a crime. [658]*658ORS 475.992(4)(f). Consequently, when Collins and Houlihan discovered the marijuana, they did not have probable cause to arrest defendant. See ORS 133.310. Nonetheless, marijuana is contraband and is subject to seizure. ORS 133.535(2). The lack of probable cause to arrest defendant for a crime does not mean that the officers lacked probable cause to believe that defendant’s truck contained more marijuana.

“Although possession of less than one ounce of marijuana does not itself create probable cause to search for more, it is still relevant in determining whether probable cause exists. Other facts * * * may unite with the possession to produce the necessary level of probability.” State v. Tallman, 76 Or App 715, 721, 712 P2d 116 (1985).

Defendant voluntarily revealed marijuana that was located in separate containers under his jacket on the seat and in his shirt pocket. The fact that the marijuana was located in two different locations is an additional fact, when combined with admitted possession, to provide probable cause to believe that other caches of marijuana would be found elsewhere in the truck.

Once a search produces evidence sufficient to cite a person for a traffic violation, police may not continue searching for more evidence of the same offense. State v. Porter, 312 Or 112, 120, 817 P2d 1306 (1991). However, that limitation does not apply if further evidence of the same type would establish a more serious offense. 312 Or at 120. In Porter, an officer lawfully stopped the defendant and noticed an open beer can in plain view in the defendant’s automobile. The officer then searched the car to see if there was another can with a greater amount of beer in it. 312 Or at 120. The search uncovered methamphetamine and drug paraphernalia. The court held that the search exceeded the permissible scope of ORS 810.410(3),⁵ because

“[n]o statute provides that possession of a greater quantity of alcohol in open containers is a more serious offense. In [659]*659addition, whether defendant carried one or ten open containers was irrelevant to ‘the traffic infraction’ * * *. When the officer found and seized from defendant’s car the open can containing beer, he had all the evidence that he needed to cite defendant for violating the open container law.” 312 Or at 120. (Emphasis in original.)

Porter is not controlling here. Possession of an ounce or more of marijuana is a more serious offense than possession of less than an ounce. ORS 475.992(4). Consequently, Collins and Houlihan were not precluded from searching defendant’s car after discovering less than an ounce of marijuana.

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[656]*656DE MUNIZ, J.

Defendant appeals his conviction for unlawful possession of a controlled substance. ORS 475.992. He asserts that the trial court erred by denying his motion to suppress evidence obtained from a warrantless search of the passenger compartment of his pickup truck. We affirm.

The facts are not in dispute: On January 19, 1989, Oregon State Police Officers Collins and Houlihan responded to a report of a prowler near a residence in Eugene. The resident told the officers that she had heard noises in the yard and then saw a vehicle drive down the road toward a boat landing, where the road dead ends. Collins located defendant’s truck parked in the middle of the roadway with its parking lights on. Defendant and a companion were seated in the truck with a jacket on the seat between them. When Houlihan arrived, he asked defendant what was underneath the jacket. Defendant lifted the jacket, revealing a small round container, which defendant told the officers contained marijuana. Collins asked defendant if he had more drugs in the truck, and defendant produced a bag of marijuana from his pocket. The total amount of marijuana was less than one ounce. Collins asked defendant, again, whether there were more drugs in the truck. When defendant responded negatively, Collins requested permission to search the truck. The trial court found that defendant initially denied Collins’ request but consented when Collins told him, “[I]f I don’t get consent, I’ll impound and search it anyway.” Collins then searched the truck and found methamphetamine in a container in the pocket of a jacket that was on the seat of the pickup.

Defendant argues (1) that the search was not a permissible search incident to arrest, because possession of less than an ounce of marijuana is not an arrestable offense; (2) that ORS 167.247¹ is void for vagueness; (3) that the “automobile exception” to the search warrant requirement [657]*657does not apply, because the truck was parked when the officers encountered it; and (4) that defendant’s consent to search the truck was invalid, because the officers obtained his consent through coercion. The state argues that defendant’s consent was not involuntary, because Collins did not threaten to do anything that he was not legally entitled to do, and that, in any event, consent was unnecessary, because the search was authorized under ORS 133.072,² ORS 133.535,³ ORS 167.247 and the automobile exception.⁴ We hold that the search was authorized under the automobile exception to the warrant requirement. Therefore, we need not reach defendant’s other arguments.

Defendant does not challenge the lawfulness of the stop, Houlihan’s question about what was under the jacket or Collins’ question about whether there were more drugs in the truck. Defendant’s sole challenge is to the validity of the search that revealed the methamphetamine.

Police officers may conduct a warrantless search of an automobile provided that

“the automobile is mobile at the time it is stopped by police [and] probable cause exists for search of the vehicle.” State v. Brown, 301 Or 268, 274, 721 P2d 1357 (1986).

Defendant asserts that the automobile exception is inapplicable, because the officers did not have probable cause to search his truck and the truck was parked when the officers encountered it.

Police must have “probable cause to believe that a person’s automobile * * * contains contraband or crime evidence.” 301 Or at 276. (Emphasis supplied.) Possession of less than an ounce of marijuana is a violation, not a crime. [658]*658ORS 475.992(4)(f). Consequently, when Collins and Houlihan discovered the marijuana, they did not have probable cause to arrest defendant. See ORS 133.310. Nonetheless, marijuana is contraband and is subject to seizure. ORS 133.535(2). The lack of probable cause to arrest defendant for a crime does not mean that the officers lacked probable cause to believe that defendant’s truck contained more marijuana.

“Although possession of less than one ounce of marijuana does not itself create probable cause to search for more, it is still relevant in determining whether probable cause exists. Other facts * * * may unite with the possession to produce the necessary level of probability.” State v. Tallman, 76 Or App 715, 721, 712 P2d 116 (1985).

Defendant voluntarily revealed marijuana that was located in separate containers under his jacket on the seat and in his shirt pocket. The fact that the marijuana was located in two different locations is an additional fact, when combined with admitted possession, to provide probable cause to believe that other caches of marijuana would be found elsewhere in the truck.

Once a search produces evidence sufficient to cite a person for a traffic violation, police may not continue searching for more evidence of the same offense. State v. Porter, 312 Or 112, 120, 817 P2d 1306 (1991). However, that limitation does not apply if further evidence of the same type would establish a more serious offense. 312 Or at 120. In Porter, an officer lawfully stopped the defendant and noticed an open beer can in plain view in the defendant’s automobile. The officer then searched the car to see if there was another can with a greater amount of beer in it. 312 Or at 120. The search uncovered methamphetamine and drug paraphernalia. The court held that the search exceeded the permissible scope of ORS 810.410(3),⁵ because

“[n]o statute provides that possession of a greater quantity of alcohol in open containers is a more serious offense. In [659]*659addition, whether defendant carried one or ten open containers was irrelevant to ‘the traffic infraction’ * * *. When the officer found and seized from defendant’s car the open can containing beer, he had all the evidence that he needed to cite defendant for violating the open container law.” 312 Or at 120. (Emphasis in original.)

Porter is not controlling here. Possession of an ounce or more of marijuana is a more serious offense than possession of less than an ounce. ORS 475.992(4). Consequently, Collins and Houlihan were not precluded from searching defendant’s car after discovering less than an ounce of marijuana.

The automobile exception does not apply to a vehicle that is parked, immobile and unoccupied when police encounter it, unless there are exigent circumstances in addition to the vehicle’s “potential mobility.” State v. Kock, 302 Or 29, 33, 725 P2d 1285 (1986).⁶ Defendant’s truck was not unoccupied when the officers encountered it. Defendant and his companion were sitting in it, parked in the middle of a road, with the parking lights on. The truck was not actually in motion when police encountered it, but to say that it was “immobile” draws too fine a distinction. The truck was “mobile” in that defendant could have driven away at any moment. The fact that defendant had not yet turned the key was merely fortuitous. See State v. Hartley, 96 Or App 722, 728, 773 P2d 1356, rev den 308 Or 331 (1989) (Warren, J., concurring). The search of defendant’s truck was lawful, and the trial court correctly denied his motion to suppress.

Affirmed.

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820 P.2d 888, 109 Or. App. 654, 1991 Ore. App. LEXIS 1675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cromwell-orctapp-1991.

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