State v. Campbell

• Decision Date: 31 December 1979
• Docket Number: No. 23301,23301
• Citation: 607 P.2d 745,43 Or.App. 979
• Parties: STATE of Oregon, Respondent, v. James S. CAMPBELL, III, Appellant. ; CA 13473.
• Court: Oregon Court of Appeals

Page 745

607 P.2d 745

43 Or.App. 979

STATE of Oregon, Respondent, v. James S. CAMPBELL, III, Appellant.

No. 23301; CA 13473.

Court of Appeals of Oregon.

Argued and Submitted Oct. 24, 1979.

Decided Dec. 31, 1979.

Richard Lee Barton, Portland, argued the cause for appellant. With him on the brief was Barton & Loenning, Portland

W. Benny Won, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before BUTTLER, P. J., and GILLETTE and ROBERTS, JJ.

GILLETTE, Judge.

Defendant appeals from a conviction for criminal activity in drugs, ORS 167.207. He assigns as error the trial court's failure to suppress certain evidence and its use of other, illegally seized evidence in sentencing. We affirm.

On May 12, 1978, a Bend city police officer went to a local motel to investigate a complaint of registering under a false name. After talking with the motel authorities, the officer approached the defendant's room and knocked. The defendant opened the door and took a couple of steps outside it to talk to the officer. The door was not completely closed behind him. While they were talking, the officer smelled what he believed to be a very strong odor of burnt marijuana. After satisfying himself that the matter of the initial complaint was cleared up, the officer asked the defendant to step inside so they could discuss another matter.

Once inside, the officer asked the defendant for the material he was using to smoke the marijuana. The defendant handed him a "roach" which he pulled out from under the bed covers. The officer then asked the defendant for the material he used to make the cigarette. The defendant said that was all he had. The officer repeated his request, this time adding that "if he went through the room he could probably find what he was looking for" and "that he could tear the room apart looking for what he wanted." There was no mention of a search warrant. The defendant went over to his suitcase and brought out a large brown bag of marijuana. The officer advised the defendant that he was taking him to the station, placed him in a patrol car and, for the first time, advised him of his Miranda ¹ rights.

At the station the defendant signed two waiver cards, one containing his Miranda rights and the other a consent to search. The trial court found the waivers to be invalid and suppressed the defendant's statements made at the police station and the evidence seized in a subsequent second search of the motel room. No appeal was taken from this portion of the order; it concerns us only as it relates to sentencing.

Defendant argues that the bag of marijuana was not admissible evidence because he was not given his Miranda rights before he produced the bag and because his consent The facts of this case raise both Fourth and Fifth Amendment considerations.

to the first search was coerced. We conclude that defendant is correct only in part.

FIFTH AMENDMENT

When defendant walked to his suitcase and showed the officer where the bag of marijuana was located, he performed a verbal act. His actions were the equivalent of saying, "I know where an incriminating amount of marijuana may be found." Like the spoken or written word, verbal acts are entitled to constitutional protection. The question is: did defendant commit this verbal act under circumstances which required that he first be given his Miranda warnings?

Miranda applies "after a person has been taken into custody or otherwise deprived of his freedom of action in a significant way." 384 U.S. at 444, 86 S.Ct. at 1612. This rule has been applied to the questioning of an individual in his bedroom where he was not free to leave. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1961).

The test of whether a defendant was in custody for purposes of Miranda is an objective test. The relevant factors are: (1) whether the defendant could have left the scene of the interrogation voluntarily, (2) whether he was being questioned as a suspect or merely a witness, and (3) whether the defendant freely and voluntarily accompanied the police to the place of questioning. State v. Paz, 31 Or.App. 851, 859-60, 572 P.2d 1036 (1977).

In this case, the focus is on the first consideration. The issue is whether "when faced with the circumstances in which defendant found himself * * * a reasonable person would have concluded that his freedom was restrained in any significant way." State v. Armstrong, 38 Or.App. 219, 224, 589 P.2d 1174, 1177 (1979), rev. denied, 287 Or. 129 (1978); see also, State v. Mitchell, 35 Or.App. 809, 814, 583 P.2d 14 (1978), rev. denied, 285 Or. 73 (1979).

The trial judge concluded that, after producing the roach, the defendant would have been restrained if he had tried to leave. The officer himself testified that the defendant would not have been permitted to leave without at least being given a citation. The trial court's conclusion will not be disturbed. See State v. Warner, 284 Or. 147, 585 P.2d 681 (1978).

Defendant was "in custody" at the time the officer's interrogation led defendant to show the officer the location of the hidden marijuana. The officer should have advised defendant of his Miranda rights. Since he did not, testimony concerning defendant's verbal act should have been suppressed.

Having established that error was committed, we must determine whether the error was harmful. We hold it was not. While knowledge is an element of the offense see State v. Oare, 249 Or. 597, 439 P.2d 885 (1968) we see no reasonable inference which would be drawn from the facts in this case except that defendant knew of the presence of the bag of marijuana. The error is harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Nulph, 31 Or.App. 1155, 572 P.2d 642 (1977), rev. den. (1978).

FOURTH AMENDMENT

While the verbal act of showing the officer where the marijuana was located is not admissible evidence, the bag of marijuana itself would be if the consent to search were voluntary.

"(T)he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973); State v. Flores, 280 Or. 273, 278, 570 P.2d 965 (1977). Knowledge of the right to refuse to consent is not required. Even the fact that defendant is in custody is not dispositive. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); State v. Flores, supra.

The officer was in a place he had a right to be. Once he smelled the marijuana he had probable cause to enter the motel room and search the defendant. State v. Wallace, 29 Or.App. 429, 563 P.2d 1237 (1977), State v. Cross, 23 Or.App. 536, 543 P.2d 48 (1975). A search of the entire apartment would have also been proper.

To justify a non-consensual warrantless search, there must be probable cause and exigent circumstances. State v. Drouhard, 31 Or.App. 1083, 1086, 572 P.2d 331 (1977), rev. den. 282 Or. 189 (1978). Preventing the loss or destruction of evidence constitutes exigent circumstances. State v. Eacret, 40 Or.App. 341, 345, 595 P.2d 490 (1979), rev. den. 287 Or. 409 (1979). Exigent circumstances clearly existed in this case. The officer was alone; if he left to get a warrant it was likely that the evidence would be gone when he came back. The officer could have conducted the search himself and found the marijuana. Instead of searching for himself, however, he induced defendant to reveal the marijuana's location by stating that he could tear the room apart looking for it if defendant did not reveal it. The question is: could the officer obtain defendant's "consent" by threatening to do what he was entitled to do?

We hold that he could. This case is governed by our decision in State v. Bopp, 16 Or.App. 604, 519 P.2d 1277 (1974), where we held that an officer's statement that he would arrest defendant's girlfriend was not a constitutionally objectionable form of coercion where the officer could, in fact, have done so. After the officer's statement, the defendant revealed the hiding place of a quantity of hashish. This is a sensible result in these circumstances. As former Chief Justice O'Connell explained in State v. Douglas, 260 Or. 60, 81, 488 P.2d 1366, 1376 (1971), cert. denied 406 U.S. 974, 92 S.Ct. 2420, 32 L.Ed.2d 674 (1972) (dissenting on other grounds):

" * * * The officer's threat that he (could) obtain a warrant if defendant did not consent to the search did not constitute the kind of coercion that renders a search involuntary. Concededly such a threat may be coercive in the sense that an accused would not have consented to the search in the absence of the threat. But not all coercion inducing consent to a search is constitutionally impermissible. If the officers threaten to do only what the law permits them to do, the coercion that the threat may produce is not constitutionally objectionable."

See also State v. Hirsch, 267 Or. 613, 622, 518 P.2d 649 (1974); cf. State v. Roy, 28 Or.App. 861, 562 P.2d 213 (1977). Under the facts of this case, defendant's consent was valid. ²

The second issue raised by the defendant is the trial court's consideration of illegally seized evidence in sentencing the defendant.

The Oregon Supreme Court has not yet ruled on this issue. However, in a recent case, State v. Nettles, 287 Or. 131, 597 P.2d 1243 (1979), the court held that the exclusionary rule does not apply to probation revocation proceedings. The rationale of United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) was relied upon:

"The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim:

" '(T)he ruptured privacy of the victims' homes and...