State v. DeLong

602 P.2d 665, 43 Or. App. 183, 1979 Ore. App. LEXIS 3372

• Court: Court of Appeals of Oregon
• Decided: November 13, 1979
• Docket: 78-364 C, CA 13526
• Status: Published

Opinion

LEE, J.

Defendant appeals his jury conviction of possession f a controlled substance. ORS 475.992. The dispositive issue 1 concerns the trial court’s denial of defend-nt’s motion to suppress evidence obtained from a warrantless search of a camera case found in the trunk f defendant’s vehicle. We reverse and remand.

On October 30, 1978, a state police officer stopped efendant’s vehicle for a speeding violation. As the fficer approached the vehicle, he detected the smell of lcohol. He observed four bottles of beer on the rear oorboard. He suspected that both defendant and the assenger were underage and asked them to exit the ehicle. After spying a pistol under a fold-down arm-5st located between the driver and passenger seat and mfirming that both defendant and the passenger ere underage, the officer searched the interior of the ar.

The search disclosed two open beer bottles in the ■ont seat, five marijuana seeds, a device used to hold marijuana cigarette, bullets for the pistol, and a pill ottle in a front seat ash tray which contained three lack capsules.

The officer then proceeded to search the trunk of íe car. In the trunk, he found a travel bar which xntained a bag of white powder and scales. Also, in íe trunk he found a closed camera case approximate- r 6 x 3 x 5 inches in size which contained three used ypodermic needles and some empty baggies. It was lbsequently determined that one of the syringes had residue of methamphetamine; the white powder dis->vered in the travel bar, however, was not a con-•olled substance nor were the three black capsules.

Defendant moved to suppress the evidence found in íe camera case. In denying defendant’s motion, the mrt held that the warrantless search of the vehicle as proper because both "probable cause” and "exigent circumstances” existed. On appeal, defendant contends that the trial court erred in denying his motion to suppress. 2

Subject only to a few exceptions, warrantless seizures and searches are per se unreasonable. State v. Greene, 285 Or 337, 340-41, 591 P2d 1362 (1979). The state has the burden of proving that a warrantless search is nevertheless valid. ORS 133.693(4). 3

In those instances where the police have probable cause to believe that a motor vehicle contains contraband or evidence of a crime, the exigency of the situation created by the inherent mobility of a motor vehicle justifies the search of that vehicle without the necessity of the police first obtaining a warrant. E.g., Chambers v. Maroney, 399 US 42, 90 S Ct 1975, 26 L Ed 2d 419 (1970); Carroll v. United States, 267 US 132, 45 S Ct 280, 69 L Ed 543 (1925). Until recently, this warrant exception was generally applied anytime a vehicle was involved, e.g., State v. Downes, 31 Or App 419, 511 P2d 914 (1977), reversed 285 Or 369, 591 P2d 1352 (1979). However, since Arkansas v. Sanders, 442 US 753, 99 S Ct 2586, 61 L Ed 2d 235 (1979); United States v. Chadwick, 433 US 1, 97 S Ct 2476, 53 L Ed 2d 538 (1977); and State v. Groda, 285 Or 321, 591 P2d 1354 (1979), a more detailed analysis is required.

The officer’s search of the interior and trunk of the vehicle was conducted after he had developed a well warranted suspicion, based upon his observations, that ;he vehicle contained contraband. Exigent circumstances coupled with probable cause to search egitimized the search of the vehicle and the trunk without a warrant. The constitutional problem arises rom the warrantless search of the camera case which was in the trunk.

In Sanders, supra, state police officers were acting mrsuant to an informant’s tip that a suspect carrying i green suitcase containing marijuana would be on a light to the local airport. The police put the area mder surveillance. Subsequently, the suspect arrived :arrying a green suitcase which matched the inform-int’s description. A companion placed the suitcase in he trunk of a taxi, and the suspect and the companion leparted in that taxi. The officers stopped the vehicle ind requested the driver to open the trunk, which was lone without defendant’s consent, whereupon they ipened the unlocked suitcase and found marijuana. Tie United States Supreme Court held that the search i the suitcase was unconstitutional because of the ibsence of any exigency. Clearly the officers had probible cause to seize the luggage. Once it had been «moved from the vehicle and taken under the officer’s ontrol it was no longer mobile or subject to destruc-ion. In finding that the underlying rationale of the automobile exception” to the warrant requirement rould not be furthered in applying it to the search of he immobilized suitcase, the court stated:

"Once police have seized a suitcase * * * the extent of its mobility is in no way affected by the place from which it is taken.” 61 L Ed 2d at 245.

Absent some "special” exigency, 4 the police were re-uired to obtain a warrant prior to searching the uitcase.

In Groda, supra, which was decided prior to Sanders, an officer seized defendant’s automobile subsequent to his arrest for criminal activity in drugs. The officer proceeded to open the trunk of defendant’s vehicle and searched a closed briefcase found inside. The Oregon Supreme Court held that even if "the officers had probable cause and there were exigent circumstances to justify the officers’ seizing and searching the car pursuant to the principle of Carroll v. United States, 267 US 132, 45 S Ct 280, 69 L Ed 43, 39 ALR 790 (1925), and Chambers v. Maroney, 399 US 42, 90 S Ct 1975, 26 L Ed 2d 419 (1970) * * * the officers could not constitutionally search the briefcase without a warrant.” 285 Or at 326-27. (Emphasis supplied.)

The "automobile exception” remains viable in those instances where spontaneous searches are conducted, with probable cause, of a vehicle which is or has the likelihood of becoming mobile. Compare, State v. Fondren, 285 Or 361, 591 P2d 1374, cert denied, 48 USLW 3218 (1979); with State v. Greene, supra.

Based upon Sanders and Groda, we hold that once the police encounter a closed container, such as a camera case, in the course of their search, to which no other warrant exception applies, they may seize it if hey have probable cause to do so, but they may open ind search it only after obtaining a warrant. 5

Defendant’s motion to suppress the evidence taken rom the camera case should have been granted. There vere no exigent circumstances present to justify the warrantless search.

Reversed and remanded for a new trial.

1 Defendant made two other assignments of error, which we do not Hach because of our disposition of the first issue.

2 While this case was being litigated, the law on automobile searches was undergoing upheaval. At the suppression hearing, the trial judge relied on State v. Downes, 31 Or App 419, 571 P2d 914 (1977), which was subsequently reversed in State v. Downes, 285 Or 369, 591 P2d 1352 (1979). Subsequent to defendant’s trial and conviction, the Oregon Supreme Court decided three other automobile search and seizures cases in an attempt to clarify the law in this area. State v. Groda, 285 Or 321, 591 P2d 1354 (1979); State v. Greene, 285 Or 337, 591 P2d 1362 (1979); State v. Fondren, 285 Or 361, 591 P2d 1374, cert denied, 48 USLW 3218 (1979). Also since that time, the United States Supreme Court decided Arkansas v. Sanders, 442 US 753, 99 S Ct 2586, 61 L Ed 2d 235 (1979), discussed herein.

3 ORS 133.693(4) provides:

"Where the motion to suppress challenges evidence seized as the result of a warrantless search, the burden of proving by preponderance of the evidence the validity of the search is on the prosecution.”

4 As the court in Arkansas v. Sanders, observed:

"There may be cases in which the special exigencies of the situation would justify the warrantless search of a suitcase. Cf. Cady v. Dombrowski, 413 US 433, 37 L Ed 2d 706, 93 S Ct 2523 (1973)(police had reason to suspect automobile trunk contained a weapon). Generally, however, such exigencies will depend upon the probable contents of the luggage and the suspect’s access to those contents—not upon whether the luggage is taken from an automobile. * * 61 L Ed 2d at 245, n 11.

and:

"Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example, a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to 'plain view,’ thereby obviating the need for a warrant. See Harris v. United States, 390 US 234, 236, 19 L Ed 2d 1067, 88 S Ct 992 (1968) (per curiam.) * * 61 L Ed 2d at 245, n 13.

5 We note that the instant case does not present the situation of State v. Douglas, 260 Or 60, 488 P2d 1366 (1971), cert den, 406 US 974 (1972), /herein defendant consented to a search of his suitcase after he was iformed by the police that if he did not consent, they would apply for a earch warrant.