State v. Lichty

835 P.2d 904, 313 Or. 579, 1992 Ore. LEXIS 148
CourtOregon Supreme Court
DecidedJuly 30, 1992
DocketCC 89-1147; CA A65661; SC S38938
StatusPublished
Cited by40 cases

This text of 835 P.2d 904 (State v. Lichty) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lichty, 835 P.2d 904, 313 Or. 579, 1992 Ore. LEXIS 148 (Or. 1992).

Opinion

*581 GILLETTE, J.

In this criminal case, defendant is charged with possession of a controlled substance, cocaine. An arresting officer observed and then seized the cocaine in plain view, after the officer stopped defendant on the basis of a named citizen’s report that defendant’s wallet had a bag of cocaine in it. Defendant moved the trial court to suppress the cocaine seized because, defendant argued, the named citizen’s report did not give the officer reasonable suspicion to justify the stop under ORS 131.615(1). 1 The trial court suppressed the cocaine. The Court of Appeals affirmed. State v. Lichty, 110 Or App 294, 821 P2d 1114 (1991). We reverse.

The pertinent historical facts, as set out in the lead opinion of the Court of Appeals, are not disputed.

“On June 7,1989, a clerk in the Quick Shop Minit Mart in Rainier found a wallet on the counter. The clerk handed it to the store’s owner, Storie, who opened it to determine its owner. When she opened the wallet, a plastic bag containing a white powdery substance fell out. Coincidentally, Police Chief Derby was standing in front of the store at the time. Derby had known Storie for approximately 11 years. He was ‘closely acquainted’ with Mr. and Mrs. Storie and ‘got to be good friends with them.’ Storie went outside and told Derby, ‘I justfound this walletin the store, * * * a bag of coke fell out of it. ’ As Storie started to hand the wallet to Derby, defendant drove up with a companion. His companion yelled, ‘[T]hat’s our wallet.’ Storie handed the wallet to the companion. As defendant began to back out of the lot, Derby ‘hollered for [defendant] to stop the vehicle, and he did so.’ Derby asked to see the wallet. He examined it, then ‘looked in the vehicle [and] observed a baggie containing a white powdered substance sitting on the console.’ Derby seized the baggie. The white powdered substance in the baggie proved to be cocaine.”

State v. Lichty, supra, 110 Or App at 296.

In a pretrial motion, defendant moved to suppress the cocaine on the ground that, among others, the stop of defendant was unlawful under ORS 131.615(1), because *582 Derby lacked a reason to suspect that defendant was committing (or had committed) a crime. 2 The trial court agreed with defendant and suppressed the cocaine, stating:

“I believe the officer would have had to know more than what he did: (1) the store owner for years; (2) a lost billfold; (3) a statement that it contains cocaine. The above constitutes the totality of the basis of his reasonable suspicion. Not enough — change the facts to a police officer finding the billfold or a druggist and the answer would probably be different.”

The state appealed. The Court of Appeals affirmed, holding that, although Storie was trustworthy, “her communication to Derby, by itself, was insufficient to give rise to a reasonable suspicion.” State v. Lichty, supra, 110 Or App at 297. The Court of Appeals stated:

“Storie told Derby, T just found this wallet in the store, * * * a bag of coke fell out of it.’ She did not tell him why she believed that the substance in the bag was cocaine. She did not describe the bag or its contents to Derby. Her tip merely conveyed her conclusion that it was cocaine. A conclusion, by itself, is not a specific articulable fact. Although Derby had known Storie personally for several years, he had no basis for knowing whether she had any idea what cocaine looked like. He conceded, on cross-examination, that there was no ‘reason to believe that she knows any more about cocaine than, anybody else’ in the courtroom, other than Derby and the district attorney. Derby testified that, based on his training and experience, he knew that cocaine ‘is usually packaged in small amounts’ in baggies. However, nothing in the record indicates that Derby had any reason to believe that the ‘bag’ in defendant’s wallet resembled the kind of packaging that he associated with cocaine.
“Under the circumstances, Derby could not form a reasonable suspicion that defendant was in possession of a controlled substance, unless he corroborated Storie’s tip with observations of his own. He did not.”

*583 Id. at 297-98.

Rossman, J., dissented, stating that “[a]n officer is not required to establish an informant’s familiarity with the specific drug at issue in order to form a reasonable suspicion. ’ ’ Id. at 298. “Given Derby’s familiarity with the informant, he could reasonably conclude that she honestly believed that the wallet contained contraband. There was testimony that the appearance of cocaine and its packaging are not so unique that only experts should be assumed to be familiar with it.” Id. at 299.

We allowed review in this case to address the issue whether a named informant’s statement that a wallet found in the informant’s store contains “a bag of [cocaine],” 3 is sufficient to give a police officer reasonable suspicion that, once the wallet is returned to its owner, the owner of that wallet is in possession of a controlled substance.

The state argues that “[t]he question is not whether Derby corroborated [Storie’s] report or whether she explained to him why she believed the contents of the baggie to be cocaine, but rather, whether her report, under all of the circumstances, had sufficient indicia of reliability to support reasonable suspicion.” The state contends that Storie’s statement to the officer had sufficient reliability, because “the appearance of cocaine and its packaging are not so unique that non-experts should be assumed to be unfamiliar with it. ” The state further argues that, “[e]ven assuming that some corroboration of the report was necessary in this, case to establish reasonable suspicion, that requirement was satisfied. Although brief, the report that Storie had found a bag of cocaine in a wallet was consistent with what [Derby] knew to be the way cocaine ‘is usually packaged’ — i.e., in small amounts in plastic baggies.” (Emphasis in original.)

Defendant acknowledges that “[t]he law recognizes that a [named] citizen who volunteers information to a police officer is entitled to be trusted.” He argues that, “[w]hile [Storie] ‘attempted’ to * * * be truthful, * * * Derby had no *584 way of knowing [that] she was accurate. The matter about which she was attempting to be truthful and veracious was something beyond her [knowledge].

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Cite This Page — Counsel Stack

Bluebook (online)
835 P.2d 904, 313 Or. 579, 1992 Ore. LEXIS 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lichty-or-1992.