State v. Jackson

677 P.2d 21, 296 Or. 430, 1984 Ore. LEXIS 1053

• Court: Oregon Supreme Court
• Decided: February 15, 1984
• Docket: 10-81-11077 CA A24955, 10-81-02508 CA A24956 SC 29473
• Status: Published

Opinions

JONES, J.

The issue is whether the trial court should be reversed for ordering suppression of evidence obtained by a traffic officer’s flashlight observation of the interior of a motor vehicle that he had stopped for a traffic infraction.

We quote from the trial court’s findings:

“On the night of February 20, 1981, Defendant as the operator of a van entered upon East 11th Avenue from an alley between Mill and Ferry Streets in the City of Eugene, Oregon. East 11th Avenue is a one way street but no signing to that effect was posted for motorists coming onto it from that alley and Defendant turned the wrong way, discovered the error at the first intersection he came to and exited 11th Avenue at that point. Officer Tatum of the Eugene Police Department observed these movements and stopped Defendant’s vehicle.

“Defendant’s vehicle bore California plates and, upon request of the officer, Defendant displayed a valid California operator’s license and valid California vehicle registration.

“The officer returned to his patrol unit and then resumed contact with Defendant.

<<* * * * *

“For some reason the officer then proceeded from the driver’s side around the front of the van to the passenger side, and a step or two beyond where he was then positioned beside the sliding door used for ingress and egress from the compartment of the van behind the driver’s and passenger’s seats. The officer flashed his light through the window at the sliding door and observed two beer cans which he thought might contain alcohol and thus be in violation of ‘the open container’ law.

“The location of these cans is in dispute. The officer testified they were on the console between the driver and passenger seats. The Defendant testified they were on a stool behind those seats. A more probing search would have been necessary to see them if they were where the officer recalled them being than would have been required had they been at the location described by the Defendant.

“The presence of the open beer cans motivated the officer to enter the vehicle whereupon he came upon other unrelated contraband.”¹

Eventually, defendant “was issued citations for the possession of less than an ounce and for open container.”

The defendant later was indicted on felony charges of unlawful possession of controlled substances, i.e., LSD and cocaine, which were substances found by the officer when he searched in the van.

In the trial court, the defendant moved to suppress the evidence obtained from his vehicle on the ground that it was unlawfully obtained because:

“ (1) The searches and seizures were performed without a warrant;

“(2) No probable cause existed;

“(3) No exigent circumstances existed;

“(4) There was no valid consent;

“(5) The searches and seizures were not otherwise lawful or justified.”

He subjoined to his motion as authorities upon which he relied the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 9, of the Oregon Constitution.

On appeal, the defendant contended that the officer had unlawfully detained defendant after all matters concerning the initial stop had been “satisfactorily processed” and that the officer “examined the interior of his vehicle visually during this detention.” He cited to the trial court State v. Carter/Dawson, 287 Or 479, 600 P2d 873 (1979), and State v. Wight, 48 Or App 731, 617 P2d 928 (1980), in support of that contention. Because the defendant prevailed at the trial court level on this first issue, his other contentions raised at trial were not asserted in this appeal.²

The trial court, having made the findings quoted above, came to the following conclusions:

“It is the opinion and conclusion of this Court that the officer having made the stop for driving the wrong way on a one way street and having concluded that defendant was the lawful owner and operator of the vehicle had, at that point, nothing before him to arouse a reasonable suspicion that he should conduct further inquiry or inspection or examination of the contents of the vehicle. Nothing was before him to reasonably provoke his circling to the opposite side of the van and conducting a flashlight search into the interior spaces of the van from that or any vantage point.

“The officer testified he thought he observed the Defendant bump or knock over the beer cans. This occurred before he saw beer cans in the vehicle. This Court discerns nothing in that testimony to suggest the movement was furtive, was done to conceal anything, was an effort to reach or conceal a weapon or was in any manner untoward or of a nature leading a person to suspect further investigation or search would be required.

“This Court concludes the principles applied in State v. Carter/Dawson control and that evidence was wrongfully seized and should therefore be suppressed. However, such of the evidence seized which is contraband must be destroyed rather than returned to the Defendant.”

As mentioned, because the trial court found that the officer conducted an investigation beyond what the trial court concluded was permissible under State v. Carter/Dawson, supra, the trial court did not find it necessary to resolve conflicts in the evidence that would be pertinent to other legal issues raised by defendant’s motion to suppress.

The state appealed, contending that the trial court had misapplied the “rationale and holding” of Carter/Dawson. The state, therefore, asked the Court of Appeals to reverse the trial court’s order of suppression and to remand the case to the trial court for resolution of the factual disputes presented by the evidence and for further consideration of the legality of the “search and seizure” of items inside the vehicle.

The defendant, in his brief in the Court of Appeals, defended the trial court’s application of Carter/Dawson and contended that that case and State v. Wight, supra, established an “Oregon rule” not dependent upon Fourth Amendment law. The defendant argues that the officer’s circling the front of the van and shining the flashlight into the passenger side window was an impermissibly intrusive invasion of his privacy, not necessitated by the traffic stop or by other exigent circumstances. The defendant claims that the officer began an investigation unrelated to the traffic stop without any artic-ulable sensory perceptions to justify such action. The state urges that the central issue is the permissible “duration of a stop” for a minor traffic infraction.

The Court of Appeals adopted the state’s argument by concluding that the extension of the time of the stop by that action of the officer was “de minimis.” The Court of Appeals stated:

“Defendant’s primary argument seems to be that anything that could be termed an ‘investigation’ unrelated to the offense for which defendant was stopped is unlawful under Carter/Dawson.3 Although we used the word ‘investigation’ in that opinion, we are not willing to extend Carter/Dawson to prohibit the officer’s actions here. We agree with the state that ‘* * * the holding of that case does not require a police officer to confine himself to the bare minimum of activities necessary to issue a traffic citation.’ Therefore the evidence was improperly suppressed.

“3. Defendant does not rely on the fact that a flashlight was used, nor does he contend that the officer’s action was a ‘search.’ ”

This brings us to a consideration of the decision in Carter/Dawson.

When Carter/Dawson was first argued before this court, the question of the intrusiveness of a police officer’s behavior was at issue. Our concern for this issue caused us to order reargument of the case; however, both sides responded that the only issue before this court was the validity of the traffic stop itself. Consequently, the intrusiveness issue was not considered. In the present case, the validity of the traffic stop is not in dispute. To analyze the intrusiveness issue, we revisit the Court of Appeals decision in State v. Carter/Dawson, 34 Or App 21, 578 P2d 790 (1978).

In Carter/Dawson, a police officer stopped a car for a speeding violation. After a cursory examination of licenses and a running of a “records check,” the officer asked questions about the car’s contents, attempted to elicit permission to look in the car and then observed marijuana and related paraphernalia. The Court of Appeals concluded that such an investigation after a negative records check was impermissibly intrusive. The court said:

“Two bodies of law are germane to what an officer may do after making a traffic stop in Oregon. One is constitutional. An officer may, constitutionally, search the person of the driver incident to custodial arrest, State v. Florance, [270 Or 169, 527 P2d 1202 (1974)], but assuming State v. Krogness, 238 Or 135, 388 P2d 120, cert den 377 US 992 (1964), is still good law, may not, constitutionally, search the interior of the vehicle based solely on a stop for a traffic offense.

“Moreover, constitutional law provides that a stop can be no more intrusive than necessarily required by the objective reason giving rise to the stop. State v. Evans, 16 Or App 189, 517 P2d 1225, rev den (1974). ORS 131.615 appears to codify the constitutional limitation:

iifc ‡ :Jc jJj ifc

‘(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.

‘ (3) The inquiry shall be considered reasonable only if limited to the immediate circumstances that aroused the officer’s suspicion.’

“Detention and inquiry beyond the time, place and subject-matter limits codified in ORS 131.615 — all components of what we call ‘intrusiveness’ — constitute an invalid ‘random intervention into the liberty and privacy of a person.’ State v. Evans, 16 Or App at 197.

“The other relevant body of law is solely statutory. ORS 484.435 provides:

“ ‘(1) Searches and seizures otherwise authorized by law incidental to an arrest shall not be authorized if the arrest is on a charge of committing a Class B, C or D traffic infraction unless the arrest is a full custody arrest in which the person arrested is to be lodged in jail, and the decision to place the person arrested under full custody arrest is based upon specific articulable facts justifying his being lodged in jail rather than being given a traffic citation as provided in this chapter and released.

“ ‘(2) Nothing in subsection (1) of this section shall be construed to forbid a frisk for dangerous or deadly weapons authorized under ORS 131.605 to 131.625.’ ” 34 Or App at 31-32.

The state in the case at bar contends ORS 131.615 (quoted above) is limited to police stops and on-the-scene investigations of crimes and that “crimes” by definition do not include traffic offenses. In the present case, defendant was stopped for proceeding in the wrong direction on a designated one-way way street. Such conduct is a Class B traffic infraction. ORS 484.353(2) (b) provides:

“A police officer:

it* * * * *

“(b) May stop and detain a person for a traffic infraction for the purpose of investigation reasonably related to the traffic infraction, identification and issuance of citation.”

ORS 484.353(2)(b) was enacted some six months after the challenged police conduct in this case. The stop occurred on February 20,1981.

Neither ORS 131.615 nor ORS 484.353(2)(b) applies to this stop. ORS 131.615 authorizes only a stop and detention of a person a police officer reasonably suspects has committed a crime. ORS 484.353(2)(b) is applicable only to infractions, but was not yet effective. As stated by Judge Schwab in Carter/Dawson, “ORS 484.435(1) expresses a legislative preference for issuance of citations in lieu of custodial arrests and enacts a legislative limitation on searches of motorists stopped for traffic offenses * * 34 Or App at 32. Here, we are not dealing with a search of a motorist. Therefore, none of the three statutes analyzed in Carter/Dawson is applicable to this case.

The ultimate conclusion reached in Carter/Dawson dealing with the intrusiveness of the stop has not been addressed by this court. The Court of Appeals concluded in Carter/Dawson that the officer’s behavior was to be tested by the following standard:

“The constitutional and statutory law blends into a single rule: Traffic stops should be the minimum possible intrusion on Oregon motorists, and not an excuse to begin questioning, searching or investigating that is unrelated to the traffic reason for the stop.” 34 Or App at 32.

We quoted this statement in our review of Carter/Dawson, 287 Or at 486, but did not expressly adopt it.

The police officer’s conduct in the instant case clearly is different than that of the officer in Carter/Dawson. The significant time for the duration of the stop in the case at bar appears to be the brief time during which the officer walked from the driver’s side of the van around the front of the van to the passenger side. This is apparently the critical point of the defendant’s case. We agree with the Court of Appeals decision in this case that this delay was “de minimis” and did not constitute a violation of Oregon statute, nor violate any state or federal constitutional right.³

Were the defendant to prevail here, an interpretation of the Court of Appeals standárd would seem to dictate that once an officer returns an operator’s license to the driver of a stopped vehicle, he or she must execute an abrupt about-face and march directly back to the police vehicle. Such an interpretation would not be reasonable. An officer who has lawfully stopped a vehicle does not violate any occupant’s rights in walking around the vehicle and looking through the windows of the vehicle to observe that which can be plainly seen.⁴ See, State v. Louis, 296 Or 57, 672 P2d 708 (1983).

We hold that the officer’s actions in this case were not illegally intrusive. They were not based on an excuse to begin searching or investigating for contraband or other crime evidence unrelated to the traffic reason for the stop and, therefore, did not violate Article I, Section 9, of the Oregon Constitution. State v. Caraher, 293 Or 741, 653 P2d 942 (1982).

We also find no violation of any United States constitutional right secured by the Fourth or Fourteenth Amendments. In Texas v. Brown, _ US _, 103 S Ct 1535, 75 L Ed 2d 502 (1983), the Supreme Court of the United States addressed the issue of whether an officer’s actions during a car stop constituted a search within the meaning of the Fourth Amendment:

“* * * [T]he fact that Maples [the police officer] ‘changed [his] position’ and ‘bent down at an angle so [he] could see what was inside’ Brown’s car * * * is irrelevant to Fourth Amendment analysis. The general public could peer into the interior of Brown’s automobile from any number of angles; there is no reason Maples should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy, Katz v. United States, supra, 389 US, at 361, 19 L Ed 2d 576, 88 S Ct 507 (1967) (Harland, J., concurring); Smith v. Maryland, 442 US 735, 739-45, 61 L Ed 2d 220, 99 S Ct 2577 (1979), shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers. In short, the conduct that enabled Maples to observe the interior of Brown’s car and of his open glove compartment was not a search within the meaning of the Fourth Amendment.” (First bracket ours.) _ US at _(75 L Ed 2d at 512-13).

In the present case, the officer similarly observed what he believed to be contraband or evidence of a crime. He testified he saw open and upright beer cans inside defendant’s van which had been lawfully stopped on a public street. The officer was not constrained by federal constitutional considerations to remain stationary near the driver’s door of defendant’s van merely because the officer’s investigation into the traffic violation involved initial contact with the driver. Thus, the rationale and holding of Texas v. Brown apply to this case inasmuch as they affirm that such activities do not impinge upon recognizable federal constitutional protections.

We have determined that the officer was validly on the passenger side of the van. We cannot conclude one way or the other that his observation of the beer cans made it “immediately apparent” that a violation of law had occurred. See, Coolidge v. New Hampshire, 403 US 443, 91 S Ct 2022, 29 LEd 2d 564 (1971).

In other words, we cannot tell from the trial judge’s findings whether the beer cans were open and upright as contended by the state or empty and not sitting up as contended by the defendant. The trial court merely referred to the fact that the officer “observed two beer cans” which he thought might contain alcohol. No findings or conclusions were made by the trial court that would provide the answer to the issue of whether the officer’s observation of the beer cans made it “immediately apparent” that a violation of law had occurred.

As we interpret the record, the trial judge recognized the intrusiveness issue, but never made relevant findings of fact on that issue because he felt that the act of the officer looking through the window of the right side of the van violated the Court of Appeals decision in Carter/Dawson. The rule from Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968), and State v. Hansen, 295 Or 78, 82, 664 P2d 1095 (1983), that when the trial court does not make express findings the Court of Appeals and this court must presume that conflicts in the evidence were resolved by findings of fact that are consistent with the ultimate conclusion of the trial court, is inapplicable. The trial judge never made any conclusions about the “immediately apparent” violation issue.

We believe the record is capable of different interpretations whether an open container violation was “immediately apparent.”⁵ If the trial court makes findings of fact that justify a conclusion that a violation of law was “immediately apparent,” the officer’s subsequent search and seizure of evidence must be evaluated in light of the defendant’s other listed unresolved contentions.

The Court of Appeals decision is affirmed and this case is remanded to the circuit court for further proceedings.

1 ORS 487.843 makes it a Class B traffic infraction to have an open container containing alcoholic liquor in the passenger compartment of a motor vehicle upon a highway.

2 Defendant made other arguments in support of his motion to suppress. Defendant contended that the police had entered his van ostensibly because of violation of the open container law when “from their observations they could not determine whether or not such containers would constitute a violation.”

Next, defendant argued that the police had searched through an ash tray and through other areas of the van after seizing two beer cans and without any further probable cause.

He also contended that the police had searched through his van and into closed containers without a search warrant and without the defendant being under arrest.

Finally, defendant made written arguments concerning his contention that other containers had been opened, searched and the contents seized without warrant and without probable cause, and prior to his arrest.

3 The defendant cites no specific constitutional violation in his respondent’s brief or petition for review. However, as mentioned, the defendant did cite Article I, Section 9, of the Oregon Constitution, and the Fourth and Fourteenth Amendments to the United States Constitution in his original motion to suppress in the trial court.

4 The defendant makes no complaint that a flashlight was used to enhance visibility at night. Apparently the beer cans would have been in plain view in the interior of the van in a daylight inspection from the street. The Supreme Court of the Unites States in Texas v. Brown, _ US _, 103 S Ct 1535, 75 L Ed 2d 502 (1983), held that an officer’s action in shining his flashlight to illuminate the interior of a defendant’s stopped car trenched upon no right secured by the Fourth Amendment. Since the issue was not raised, we do not accept or reject this federal interpretation for application to Article I, Section 9, of the Oregon Constitution.

5 There was a direct conflict in the evidence as to the location and position of the beer cans when the officer observed them from his place outside the vehicle. The officer testified that they were on the floorboard about six inches or so behind the defendant and front seat passenger and that the cans were upright. He testified that at that point he asked the passenger to get out so he could look at the cans. He testified that at that time he formed a belief that the open container law had been violated. He testified that when the passenger got out defendant reached over and tipped over the cans, spilling the contents on the floor. On cross-examination, the officer’s testimony was somewhat different. He conceded that from outside the vehicle he could see the cans were open but that they could have been empty. He did testify that in his experience if the cans are empty they are lying flat. He also testified that “those beer cans were sitting down between the seats.”

Defendant’s testimony in this particular was diametrically opposed. He testified that one cannot even see from the place where the officer looked into the vehicle the area where the officer contended the cans were. Defendant further swore that there were beer cans two to three feet behind the driver’s seat in the cargo portion of the vehicle and that cans had spilled out of a sack but that they were empty and not sitting up.