State v. Bechtold, CF-009
| Decision Date | 09 February 1990 |
| Docket Number | CF-009 |
| Citation | 99 Or.App. 593,783 P.2d 1008 |
| Parties | STATE of Oregon, Respondent, v. Donald Lee BECHTOLD, Appellant. 88-; CA A49971. |
| Court | Oregon Court of Appeals |
Steven V. Humber, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Ann Kelley, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
Defendant appeals his conviction for possession of a controlled substance. ORS 475.992(4). He assigns as error the trial court's denial of his motion to suppress. We affirm.
Defendant was a passenger in a pickup truck that was stopped because of the driver's erratic driving. After the vehicle had been stopped, Officers Elkins and Warren determined that the driver was under the influence of either methamphetamine or cocaine. They were familiar with the pickup and knew that there was an outstanding arrest warrant for the owner for possession and manufacture of methamphetamine. The owner had been described as armed and dangerous. The officers knew that neither the driver nor defendant was the owner of the pickup.
With the driver's consent, the officers searched the cab of the truck, where they found a pipe with marijuana residue. Elkins also noticed some makeshift laboratory stands in the back of the truck. During the search, defendant remained hunched over inside the cab and appeared nervous. During a pat down for weapons, Warren lifted defendant's shirttail to check his waistband for weapons. In the waistband, he found a small, opaque sandwich box. With the aid of a flashlight and the police car's headlights, the officers determined that the box contained plastic bags holding a white powdery substance.
The officers arrested defendant for possession of a controlled substance, ORS 475.992(4), and transported him to the police station. There, under ordinary light, they could see more clearly that the bags in the box contained white powder. Without first obtaining a warrant, the officers opened the box and confirmed that the substance was methamphetamine.
Defendant does not challenge the stop of the vehicle or the consent search of the cab. Warren testified that, during a weapons pat down, it is not uncommon for him to lift a suspect's shirt to check for weapons. He also testified that he had previously seen drugs carried in a manner similar to the way in which defendant was carrying the small plastic box and that, after the box was examined under lights, he was certain that there was either cocaine or methamphetamine in it.
Defendant argues that the evidence of the methamphetamines should have been suppressed, because the search of his person, the seizure and the subsequent search of the box were unlawful. He argues that the officers had no basis to frisk him for weapons under ORS 131.625(1):
"A peace officer may frisk a stopped person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and presently dangerous to the officer or other person present."
The officers knew that there was an arrest warrant for the owner of the pickup for the manufacture and transportation of methamphetamines. They saw equipment commonly used for such manufacture in the back of the truck and, from their training and experience, knew that people involved in the manufacture and transportation of that drug commonly carry weapons. The driver showed signs that he was under the influence of methamphetamine or cocaine. In addition, defendant was nervous and hunched over, as though he might be hiding something. The circumstances justified the suspicion that defendant was armed and dangerous. See State v. Bates, 304 Or. 519, 526, 747 P.2d 991 (1987).
Defendant next argues that the frisk was overly intrusive, citing ORS 131.605(2), which defines a frisk as "an external patting of a person's outer clothing." By raising defendant's shirt, Warren failed to follow the statute strictly. However, had he first conducted a pat down at the waist, he would have felt the hard plastic box and would have been entitled to lift the shirt to pull it out. State v. Ridderbush, 71 Or.App. 418, 692 P.2d 667 (1985). 1 The method of search used was not overly intrusive.
In order to be able lawfully to seize the container, the officers had to have probable cause to believe that it contained contraband. State v. Elkins, 245 Or. 279, 284, 422 P.2d 250 (1966). Defendant does not challenge the trial court's finding that, through the lid, the officers saw sealed plastic baggies that appeared to contain a white powder. 2 Warren testified that he had seen drugs packaged that way before. The existence of the substance concealed on defendant's body, added to the other circumstances that we have discussed previously, which associated defendant with the manufacture and transportation of methamphetamine, created probable cause to believe that the box contained contraband and gave the officers the right to seize it.
Defendant argues that Elkins unlawfully used the technological enhancement of a flashlight to search the outside of the box. Elkins testified that, in the ordinary light of the police station, he could see through the top of the box even more clearly than with the flashlight. It is not unlawful for an officer to use a flashlight to examine the outside of a container and to see no more than is visible under normal indoor lighting. 3
Defendant next argues that the officers unlawfully opened the box without a warrant. In State v. Owens, supra, 302 Or. at 206, 729 P.2d 524 (1986) the Supreme Court held that there is no privacy interest in transparent containers or other containers that otherwise announce their contents. In Owens, a transparent vial containing white powder announced its contents. Similarly, in this case, the box allowed enough visibility through the top to announce its contents. A warrant was not required.
Affirmed.
Assuming that the officer reasonably suspected that defendant was "armed and presently dangerous to the officer," ORS 131.625(1), he had the right to conduct an "external pat-down" of defendant's "outer clothing." See ORS 131.605(2). Assuming further that the officer was authorized to raise defendant's shirt in order to facilitate a pat-down of defendant's waist, he was authorized to remove the opaque plastic sandwich box to determine whether it contained a weapon. That is what the trial court properly concluded; the court then observed, accurately, that "when you heft it and feel" it, there "probably would be some question as to whether a weapon would be in that."
Examination of the opaque plastic sandwich box should have ended there. Obviously, it did not contain a weapon. This case is indistinguishable from State v. Gressel, 276 Or. 333, 554 P.2d 1014 (1976). There, the defendant was validly stopped on a reasonable suspicion that he had committed a burglary. The officer patted him down for weapons and, although he found none, during the course of the frisk he felt soft bulges in two of the defendant's pockets. The officer suspected that the bulges were rolls of currency that might have been taken in the burglary. When the defendant refused to consent to a search, the officer reached into one of the defendant's pockets and pulled out a bag of marijuana, which formed the basis of the charge on which the defendant was convicted. The Supreme Court reversed, stating:
"It is our opinion that after Grimes stopped defendant, questioned him and fruitlessly searched him for weapons, the officer did not have probable cause to search further in order to ascertain the contents of defendant's pockets."
Here, as in Gressel, the officer searched without...
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