State v. Hartley

773 P.2d 1356, 96 Or. App. 722, 1989 Ore. App. LEXIS 658

• Court: Court of Appeals of Oregon
• Decided: May 24, 1989
• Docket: 10 86 09945; CA A46193
• Status: Published

Opinions

GRABER, J.

Defendant was convicted of unlawful possession of a controlled substance, ORS 475.992(4), and of pointing a firearm at another. ORS 166.190. He assigns as error the denial of his motion to suppress a gun found in the trunk of his car and methamphetamine found in his wallet. We affirm.

The parties stipulated to these facts: On October 23, 1986, Eugene police received a report about a man pointing a gun at one or more persons in the parking lot of a fast food restaurant. When the police arrived at the parking lot, defendant was closing the trunk of a parked car; he then walked around, to the front and opened the driver’s side door. A police officer ordered him to put his hands on the car, handcuffed him, and moved him away from the car. The police interviewed witnesses and concluded from their statements that the gun was in the trunk of defendant’s car. About ten minutes after the first officer arrived, the police obtained the key from defendant, opened the trunk, searched it, and seized the gun.

Defendant was transferred to jail and booked. An officer who conducted the booking procedure opened defendant’s wallet, which was closed on the outside with snaps. He removed some money and defendant’s driver’s license and then opened a zippered compartment. There he found some credit cards; between two of them he discovered a small folded piece of transparent plastic. Through it he could see a brown grainy substance, which he seized. It was later determined to be methamphetamine.

The trial court, denying defendant’s motion to suppress, said:

“With regard to the car, I suppose that could go either way. I would not say that a car could be searched incident to an arrest merely because the arrest takes place close to the car. On the other hand, I’m influenced by the fact that the police had been advised, apparently by the defendant as well as others, that he had put the very instrumentality that he had committed the crime with, namely the gun, in the trunk. And they didn’t purport to search the entire car, but only to go directly to the part of the car that was separate from the rest of the car, where he said he put the gun. And in my judgment, he had made that a part of his personal effects by having access to that trunk of that car and putting the gun in it. He treated the trunk of that car like a briefcase or a suitcase or something else. And I think that the officers, in common sense, had a right to go directly to that trunk, not purporting to search the entire car, and to obtain the instrumentality of the crime as an incident to an arrest.

“With regard to the inventory search [sic], my understanding — and it may be misguided — has been that in the book-in process the police have considerable latitude in looking through the personal property brought into the jail. Even though it’s supposedly going to be in the custody of the officers and inviolate, the fact is that they have an interest in identifying valuables, [to] protect themselves from claims. And I think they have an interest in identifying contraband, particularly drugs, and not having them within the walls of the jail even if they are not accessible to the general jail population.”

Defendant contends, first, that the warrantless search of the trunk neither was a search incident to his arrest nor satisfied the “automobile exception” to the warrant requirement and was, therefore, illegal. We agree with the state that the search was proper incident to defendant’s arrest.

The scope of a search of an automobile conducted incident to an arrest is subject to the same criteria as any search incident to an arrest. If the search is for evidence related to the crime for which the defendant was arrested, it must be reasonable in time, scope, and intensity. Each case depends on its own facts. There is no “container rule” that sets precise limits on the scope of such a search. See State v. Caraher, 293 Or 741, 653 P2d 942 (1982); State v. Flores, 68 Or App 617, 633-635, 685 P2d 999, rev den 298 Or 151 (1984). In most cases, it would not be reasonable to open the trunk of a car as part of a search incident to arrest. See State v. Martin, 71 Or App 1, 691 P2d 154 (1984); State v. Flores, supra; State v. Fesler, 68 Or App 609, 685 P2d 1014, rev den 297 Or 546 (1984). We have held, however, that the search of a trunk was proper incident to an arrest when the police, immediately before the arrest, saw the defendant place a package that they knew contained cocaine in the trunk. State v. Kosta, 75 Or App , 708 P2d 365 (1985), aff’d on other grounds, 304 Or 549, 748 P2d 72 (1987).¹

In this case, the officers knew that defendant had had a gun, they saw him close the car trunk immediately before the arrest, and they learned from witnesses that he had placed the gun in the trunk. The search of the trunk was limited in scope to the area of defendant’s arrest, and it was reasonable in intensity, given the officers’ knowledge of defendant’s activities. The ten minutes that passed between the arrest and the search was not an unreasonable time. See State v. Kirsch, 69 Or App 418, 686 P2d 446, rev den 298 Or 151 (1984). The search was proper incident to defendant’s arrest.²

Defendant next argues that the methamphetamine should have been suppressed, because the inventory of the contents of his wallet was improper given the principles expressed in State v. Ridderbush, 71 Or App 418, 692 P2d 667 (1984). On that issue, we affirm without opinion by an equally divided court.

Affirmed.

1 Judges Buttler and Warren assert that our opinion in State v. Kosta, supra, is inapplicable, because the Supreme Court adopted a different rationale and because the police in that case had obtained a warrant for the package. Although the Supreme Court upheld the search on other grounds, it did not suggest that a search of a car trunk cannot be proper incident to an arrest, if the usual criteria are met. Neither is the absence of a warrant in this case dispositive. The warrant in Kosta authorized the search only of the package that defendant had, not of the closed car trunk. A separate rationale — search incident to arrest — was required in order to uphold the additional search. Similarly here, the officers would have been authorized, incident to the arrest, to seize defendant’s gun, if it had been in his hand or visible in the passenger compartment of the car, without obtaining a warrant. The search of the trunk was also proper incident to the arrest, because it was reasonable to believe that evidence would be found there and the search was appropriately limited in time, scope, and intensity.

2 Because we conclude that the search was proper incident to defendant’s arrest, we need not consider his argument that it did not meet the criteria for the automobile exception to the warrant requirement. See State v. Brown, 301 Or 268, 721 P2d 1357 (1986).