State v. Gordon
State v. Gordon
Opinion of the Court
Defendant appeals his convictions on two counts of possession of a controlled substance. ORS 475.992(4). He contends that the trial court erred in denying his motion to suppress evidence seized as a result of warrantless searches of his vehicle and its contents. We affirm.
An undercover deputy sheriff bought drugs from Metzker, the owner of a truck rental agency in Albany. Metzker told the deputy that he was expecting a shipment of cocaine from Eugene that day. He intended to sell some of it to the deputy. Later, deputies obtained a warrant to search Metzker’s office for controlled substances. The warrant was executed about 11:30 a.m. During the search, deputies found cocaine behind Metzker’s desk. The deputies remained on the premises. Detective Parrott, who was in charge, answered all incoming phone calls.
Early in the afternoon, a man phoned and asked for Metzker. Parrott told him that Metzker was unavailable.
Defendant remained in his van. He refused Parrott’s
Deputy Severns found a briefcase in the van. On opening it, he discovered a plastic baggie containing more than an ounce of marijuana. Defendant was then formally arrested. As he took his hand from his pocket, the small wooden object Holm had discovered earlier fell to the ground. Holm retrieved it. It was later, found to contain cocaine. That night, Parrott searched the briefcase thoroughly. He found several small containers in it containing cocaine.
Defendant argues first that the deputies lacked probable cause to search his van.
“[s]earches incident to arrest are the primary justification for warrantless searches of the person. If the officer is without probable cause to arrest a person, the officer is without probable cause to search him, for a search of the person necessarily implies an arrest.”
Flores involved the search of the defendant’s automobile and his person. See also State v. Krogness, 238 Or 135, 388 P2d 120, cert den 377 US 992 (1964).
It is apparent that automobile searches will often occur in the context of an arrest. We have analyzed automobile searches under the probable cause, exigent circumstances and incident-to-arrest criteria in two cases since Flores. See State v. Brody, 69 Or App 469, 686 P2d 451 (1984); State v. Kirsch, 69 Or App 418, 686 P2d 446, rev den 298 Or 151 (1984). In each case we held that the fact that the defendant was under arrest and that the police were in control of the situation meant that there was no exigency that justified searching without a warrant, even though there may have been probable cause for the search. However, in each case we upheld the search as incident to the defendant’s arrest. Thus it appears that the latter analysis will normally be the appropriate one for a search of an occupied automobile. See ORS 133.005(1); State v. Caraher, 293 Or 741, 653 P2d 942 (1982); State v. Krogness, supra; State v. Chinn, 231 Or 259, 373 P2d 392 (1962); State v. Flores, supra. Here, the information supporting a belief that there was contraband in the van necessarily supported a belief that defendant possessed it. His detention during the search was in fact an arrest, although he was not formally arrested until later.
We agree with the trial court’s conclusion that the totality of the circumstances described in our statement of the facts gave Parrott a substantial objective basis for believing that, more likely than not, an offense had been committed and that defendant had committed it. ORS 131.005(11). Parrott therefore had authority to arrest defendant. ORS 133.310(l)(a).
A search incident to arrest must be related to the crime for which the defendant was arrested and must be reasonable in time, scope and intensity. State v. Caraher, supra; State v. Chinn, supra; State v. Flores, supra. Defendant was under arrest for a crime of possession. The basis for that arrest was Parrott’s reasonable belief that defendant was transporting contraband in his van. That is different from the situation in State v. Flores, supra, where the officer found marijuana on the person of a driver stopped for an unrelated reason and did not search the entire passenger compartment of the automobile until after he had found additional contraband near the driver’s seat. Here, Parrott believed that defendant was a drug courier making a delivery. Under the circumstances, a full search of the van for contraband was related to the crime for which he was arrested and was reasonable in time, scope and intensity. That the deputies opened closed containers in the course of their search does not affect the legality of their actions if it was reasonable to believe that contraband might be found in the containers and if the other Chinn/Caraher criteria were met.
Defendant also appeals the trial court’s order forfeiting his vehicle to the state. See ORS 167.247(2). The forfeiture was lawful.
Affirmed.
In fact, by that time Metzker had been taken to jail.
In this court, defendant also argues that his initial encounter with the deputies, including the request that he identify himself, was an unlawful stop. See ORS 131.615. He did not make that argument below. Therefore, we will not consider it. See State v. Evans, 290 Or 707, 713, 625 P2d 1300 (1981); overruled on other grounds State v. Clevenger, 297 Or 234, 246, 683 P2d 1360 (1984); State v. Hickmann, 273 Or 358, 540 P2d 1406 (1975).
Defendant makes no claim that there was a logical stopping point at which the deputies should have ceased their search and sought a warrant. He makes no issue of the delayed search of the briefcase, other than attacking it as a search of a closed container.
The trial court found:
“[T]hat the officers had probable cause to believe that the defendant’s van would contain controlled substances.
“Up until the time of the contact with the police officers and the search the defendant had complete control of his vehicle. It must also be assumed that until the time of his arrest he had control of the vehicle. There were exigent circumstances which required prompt response.
“The next issue is whether search of the brief-case was permissible. I hold that it was. The nature of the contraband sought requires the opening of containers. It is very unlikely that controlled substances are going to be left in the open in a van. It does not make sense to authorize the search and in the next*325 breath say they can’t do the things necessary to find the contraband sought.
“Based upon the findings indicated, I hold that the search of the defendant’s vehicle did not violate his rights under the Constitutions of the State of Oregon or the United States.”
It is irrelevant whether Parrott considered defendant to be under arrest. His action and that of the other deputies was a sufficient restraint so that defendant was effectively arrested. It is also irrelevant whether Parrott believed that he had probable cause to arrest defendant, if, in fact he did. See State v. Cloman, 254 Or 1, 12, 456 P2d 67 (1969).
Defendant’s reliance on State v. Groda, 285 Or 321, 591 P2d 1354 (1979), is misplaced. In Groda, the Supreme Court held that, even though the police had authority to search the defendant’s car after his arrest, they did not have authority without a warrant to open and search his briefcase found in the car. Groda relied on United States v. Chadwick, 433 US 1, 97 S Ct 2476, 53 L Ed 2d 538 (1977). However, the problem in Chadwick was somewhat different, so it was not directly in point. Groda was, therefore, an attempt by the Oregon Supreme Court to anticipate what federal constitutional law would be. As it turned out, the prediction, while reasonable, was wrong.
In United States v. Ross, 456 US 798, 825, 102 S Ct 2157, 72 L Ed 2d 572 (1982), the Supreme Court held that, if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. See also New York v. Belton, 453 US 454, 460-63, 101 S Ct 2860, 69 L Ed 2d 768 (1981). Ross, in effect, overruled Groda as a statement of
Defendant raises no issues concerning the testing of the materials seized, as distinguished from their seizure. See United States v. Jacobsen, - US -, 104 S Ct 1652, 80 L Ed 2d 85 (1984); State v. Lowry, 295 Or 337, 345, 667 P2d 996 (1983); State v. Flores, supra, 68 Or App at 638 n 12.
In State v. Caraher, supra, the Supreme Court said:
“Chinn, Krogness and O’Neal have expanded the justification for a search incident to arrest beyond considerations of the officer’s safety and destruction of evidence. They permit a search when it is relevant to the crime for which defendant is being arrested and so long as it is reasonable in light of all the facts.” 293 Or at 759.
In deciding whether the officers could open the briefcase they had seized without first getting a warrant, it is important to remember that Caraher involved the search of the defendant’s purse, including the opening of a closed coin compartment of a wallet within the purse.
Dissenting Opinion
dissenting.
For the reasons expressed in my dissents in State v. Kirsch, 69 Or App 418, 424, 686 P2d 446, rev den 298 Or 151 (1984); State v. Flores, 68 Or App 617, 640, 685 P2d 999, rev den 298 Or 151 (1984); and State v. Fesler, 68 Or App 609, 614, 685 P2d 1014, rev den 297 Or 547 (1984), I dissent.
Reference
- Full Case Name
- STATE OF OREGON, Respondent, v. KIRK WILLIAM GORDON, Appellant
- Cited By
- 12 cases
- Status
- Published