State v. Schneider

625 P.2d 150, 51 Or. App. 161, 1981 Ore. App. LEXIS 2204
CourtCourt of Appeals of Oregon
DecidedMarch 9, 1981
DocketC 78-12-20605, CA 16716
StatusPublished
Cited by5 cases

This text of 625 P.2d 150 (State v. Schneider) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Schneider, 625 P.2d 150, 51 Or. App. 161, 1981 Ore. App. LEXIS 2204 (Or. Ct. App. 1981).

Opinions

[163]*163GILLETTE, J.

Defendant appeals his conviction for unlawful possession of a controlled substance (methamphetamine), ORS 475.992, and unlawful possession of a weapon, ORS 166.250. We affirm.

The pertinent portions of the indictment are set out in the margin.1 The major issues on appeal are the validity of the searches of defendant’s person and the car which he had been driving. In discussing them, we relate the evidence as presented to the trial court at the hearing on the motion to suppress. Defendant was stopped by a police officer, accompanied by a trainee, for driving through a red light. When the officer signaled defendant to pull over, he noticed that defendant thereupon removed his right hand from the steering wheel, bent down and then quickly brought himself back up to the normal driving position. The officer testified that defendant appeared to converse with a passenger in the front seat. The passenger turned to look at the police car and then placed a jacket in the back seat. Defendant stopped and the officer and the trainee approached the car, one on either side. The officer noticed that the passenger wore a tee shirt displaying the emblem of the Gypsy Joker motorcycle club. The jacket that had been placed in the rear seat also bore a Gypsy Joker emblem. The officer claimed to know the club as a group whose members engaged in drug and weapons activity and in assaults on policemen.

[164]*164The officer asked to see defendants driver’s license and vehicle registration. As defendant thumbed through his wallet, the officer could see various pieces of identification bearing different names. Defendant produced a document bearing the name "Jack E. Neirsteimer.” Having seen the different pieces of identification, the officer was "not at all sure” that the document defendant handed him correctly identified him.

The officer then asked defendant to step out of the car. He also asked defendant for proof of automobile insurance, which defendant could not produce. The officer escorted defendant to the police car and patted him down for weapons. The officer felt a lump in defendant’s jacket and pulled out a brown paper bag. In the bag the officer found 48 empty small glassine envelopes, a type of package often used to package powdered drugs, and what appeared to be less than an ounce of marijuana. Defendant was then placed in the back seat of the police car. The officer asked defendant who owned the car, and defendant replied that it belonged to a friend. The officer then returned to the car defendant had been driving, where the trainee was talking with the passenger. The passenger complained of the cold and reached for his jacket, whereupon the officer removed the jacket from the car for him. The jacket was unusually heavy and the officer found inside it a loaded .357 magnum revolver. The officers placed the passenger under arrest, put him in the police car with defendant and then proceeded to search the car defendant had been driving. Under the front seat the officers found a glassine envelope containing a white powder which was later determined to be methamphetamine.

The officer testified that his intention in placing defendant in the police car was to "at least have him in the vehicle until I was able to run an Oregon operator’s license status and find out if he was in fact suspended or else to find out why he was perhaps telling me a falsehood about his true identity.” He stated that he placed defendant under arrest and advised him of his rights just prior to placing him in the back of the police car. He told defendant that he was under arrest for disregarding a traffic signal, not having an operator’s license and failing to display proof of insurance. He added, "And then I also mentioned the fact [165]*165of his possession of less than one ounce of marijuana.” The officer’s testimony does not establish whether the search of defendant’s person occurred before the arrest or later, at the time the officer added the charge of marijuana possession.

Defendant moved to suppress evidence of the glassine envelopes and marijuana seized from his person, the envelope of methamphetamine found in the car and the revolver taken from his passenger’s jacket. The trial court concluded that defendant had no standing to challenge the search of the car and that the search of his person and seizure of evidence found on him was proper. For reasons which differ somewhat from those relied upon by the trial court, we agree.

Turning to the search of defendant’s person and seizure of the glassine envelopes and marijuana, we note that the evidence at the hearing did not make clear whether the items were seized before or after defendant’s arrest by the officer. Our decision does not depend upon the exact time of the search, however, for we conclude that the search was incident to an arrest which the officers had a right to make after searching the car. Explanation of our reason for so holding requires that we focus upon the search of the car.

The other items for which the defendant sought suppression were in the car. The state contended in the suppression hearing that defendant failed to show he had standing to challenge the search. "An illegal search only violates the rights of those who have 'a legitimate expectation of privacy in the invaded place,”’ United States v. Salvucci, 448 US 83, 100 S Ct 2547, 65 L Ed 2d 619, 628 (1980), quoting Rakas v. Illinois, 439 US 128, 143, 99 S Ct 421, 58 L Ed 2d 387 (1978).

In the hearing on the motion to suppress, defendant did not assert either a property or a possessory interest in the car he was driving. He did not testify at the hearing, nor did anyone testify in his behalf. The only witness to testify was the arresting police officer. He testified that the car was towed because the police were responsible for their prisoner’s property. We do not understand this necessarily [166]*166to mean that defendant had a property interest in the car. The only evidence which might be construed to support an expectation of privacy of defendant in the car’s interior was the officer’s testimony that defendant told him the car belonged to an unidentified friend. The trial court was not required to accept this hearsay statement, especially in the face of defendant’s failure to produce any evidence of his own concerning standing. The trial court found that defendant had not established that he had standing to contest the search. The evidence supported that finding. The trial court’s ruling denying defendant’s motion to suppress the drugs found in the car was correct.

Returning to the question of suppression of the items seized from the defendant’s person, it can now be seen that, had the search of his person occurred after the search of the automobile, the search would have been lawful because the police would have had probable cause to arrest defendant and search him. See State v. Florance, 270 Or 169, 527 P2d 1202 (1974). We perceive no reason to make the chronology of the arrest/search dispositive. Whether the right to arrest preceded the search or followed it, as long as the right was closely connected in time to the search and was not itself the product of illegality, the fruits of the search should not be suppressed.

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648 P.2d 411 (Court of Appeals of Oregon, 1982)
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State v. Myers
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State v. Schneider
625 P.2d 150 (Court of Appeals of Oregon, 1981)

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Bluebook (online)
625 P.2d 150, 51 Or. App. 161, 1981 Ore. App. LEXIS 2204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-schneider-orctapp-1981.