State v. Ali

• Decision Date: 16 January 1991
• Citation: 803 P.2d 1231,105 Or.App. 193
• Parties: STATE of Oregon, Respondent, v. Joseph C. ALI, Appellant. C8803-31480; CA A50890.
• Court: Oregon Court of Appeals

Page 1231

803 P.2d 1231

105 Or.App. 193

STATE of Oregon, Respondent, v. Joseph C. ALI, Appellant.

C8803-31480; CA A50890.

Court of Appeals of Oregon,

In Banc.

Submitted on Record and Briefs April 25, 1990.

Resubmitted In Banc Dec. 12, 1990.

Decided Jan. 16, 1991.

Sally L. Avera, Salem, Acting Public Defender, filed the brief for appellant.

Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Rives Kistler, Asst. Atty. Gen., Salem, filed the brief for respondent.

NEWMAN, Judge.

Defendant appeals his conviction for possession of a controlled substance. ORS 475.992. He assigns error to the denial of his motion to suppress a paper wad that contained cocaine found under the front seat of the car in which he was a passenger. We reverse and remand.

The court made no findings of fact, but the facts are undisputed. In March, 1988, Portland police officers Rhodes and Justus stopped a car on a Portland street, because it had no license plate light. While Rhodes talked to the driver, Justus stood alongside the car on the right, just behind the rear passenger seat. Justus saw defendant, who was a passenger in that seat, roll a small piece of orange paper into a wad and place it under the seat in front of him. Justus stepped up to the car, shined a flashlight into the passenger compartment and saw two open beer cans protruding from under the front seat. Justus ordered defendant and the other three occupants of the car to get out. The transcript discloses this sequence of events:

"Q [Prosecutor] Now, what did you do, then, after you got everybody out?

"A [Justus] I reached under the seat, took out the two cans of beer. There was a block of goat cheese, a big block of cheese under the seat, and then there was that little ball of paper that Mr. Ali [defendant] had put under the seat.

"Q [Prosecutor] Could you see whether there was anything else under the seat?

"A [Justus] There was--that was it.

" * * *

"THE COURT: How could you see the paper when you were retrieving the beer cans?

"THE WITNESS [Justus]: Well, it was right under the seat. The two cans were like this. The block of cheese was here. And when I took the cans out, the paper was sitting right behind the cans under the seat.

"THE COURT: You didn't have to reach under or put your head clear on the floor or something to see where that paper was?

"THE WITNESS [Justus]: Oh, sure. When I reached down, I pulled the cans out. I looked underneath there, and I could see the cheese and I could see the piece of paper.

"THE COURT: Okay.

"MR. SHEN [Prosecutor]: Go on, Officer. What happened next?

"THE WITNESS [Justus]: Well, I took the two cans of beer, reached in and picked up the piece of paper and felt it * * *."

Justus' testimony shows that, after he reached under the seat and took out the two beer cans, he saw that there were no other beer cans there. He then reached under the seat solely to remove the paper wad. He testified further that after picking it up, its contents felt consistent to his touch with rock cocaine. He then opened it and discovered cocaine.

Defendant moved to suppress the paper wad and its contents, asserting, among other things, that Justus seized it without probable cause in violation of Article 1, section 9, and the Fourth Amendment. ¹ The court denied the motion on the ground that Justus had not seized the paper wad until he opened it and that, by that time, he had probable cause to open it.

In State v. Owens, 302 Or. 196, 207, 729 P.2d 524 (1986), the court said that

"[a] 'seizure' occurs when there is a significant interference with a person's possessory or ownership interests in property. The seizure of an article by the police and the retention of it (even temporarily) is a significant intrusion into a person's possessory interest in that 'effect.' "

Justus seized the wad when he reached in and picked it up. At that moment, he possessed defendant's personal property. Moreover, he retained it. He then tactilely examined it. We conclude that under Article 1, section 9, he seized it when he picked it up.

The state also asserts that

"[b]ecause the officer properly was looking for evidence of another crime, he, at the least, had a greater privilege to touch or move the folded paper than he otherwise would have."

When Justus saw the two open beer cans, he was entitled to search for...