State v. Fisher

484 P.2d 864, 5 Or. App. 483, 1971 Ore. App. LEXIS 859

Opinions

SCHWAB, C.J.

Defendant was indicted for unlawful possession of marihuana in violation of ORS 474.020. Prior to trial he successfully moved to suppress the evidence, marihuana, seized by the arresting policeman. The state appeals under the provisions of ORS 138.060 (4),

① contending that the order of suppression was not supported by the evidence.

The arresting officer testified that he stopped the defendant as a routine traffic matter solely to advise him that his rear license plate was loose. He testified that during the colloquy that followed he became concerned because of sudden, suspicious movements made by defendant’s passenger, and that he therefore conducted a search for weapons which resulted in his finding marihuana in the glove compartment of the automobile.② The passenger testified that he did not make any sudden or suspicious movements.

A routine traffic stop is of itself not sufficient cause for mailing a warrantless search. In Sibron v. New York, 392 US 40, 88 S Ct 1889, 20 L Ed 2d 917 (1968), the Supreme Court, speaking of policemen, stated:

* *= In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous * # 392 US at 64.

See also Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968).

In the case of a warrantless search the burden of proving reasonable cause rests with the state. State v. Roderick, 243 Or 105, 412 P2d 17 (1966). The trial judge, after hearing the conflicting testimony, obviously found that the state had failed to meet its burden. In his memorandum opinion he stated:

“It is urged by the State that the conduct of the defendant and his passenger was of a sufficiently suspicious character that the officer was justified in conducting a search of the vehicle for possible weapons. As noted above, the reason for the officer’s suspicions is not apparent from the record itself and appears to be more subjective on the part of the officer than based upon any objective observations made by him.”

It is not our function to try a matter such as this de novo. In Alcorn v. Gladden, 237 Or 106, 111, 390 P2d 625 (1964), the court said:

“* * * OPS 138.220 provides that in criminal actions ‘the judgment or order appealed from can be reviewed only as to questions of law appearing on the record.’ We are not authorized to reexamine disputed questions of fact * *

In Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968), the court said:

“It has been called to the court’s attention * * * that the scope of review by this court of questions concerning voluntariness of admissions and confessions has not always been consistent. As a result, it would appear appropriate to discuss in some detail what we consider our proper scope of review of questions concerning the voluntariness of admissions and confessions.

“What actually transpired is a question of fact for the trial court or jury. If the evidence sustains such historical factual findings they will not be disturbed by this court. If findings are not made on all such facts, and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion, e.g., voluntariness or lack thereof, made by the trial court or jury. Whether these historical facts as found are sufficient to sustain a finding of voluntariness which meets state and federal constitutional concepts of due process is another question, and one which falls within our proper scope of appellate review * *

In the case at bar there was a clear conflict in the testimony. The conflict has been resolved by the trier of fact; his findings will not be disturbed by this court.③

Affirmed.

ORS 138.060 (4) provides:

“The state may take an appeal to the Court of Appeals from:

“(4) An order made prior to trial suppressing evidence.”

The state concedes that the search was warrantless and was not consented to.

The defendant has also raised the question of whether or not the traffic stop which gave rise to the search that followed was justifiable. In view of our holding here we do not reach that question.