State v. Brown

• Decision Date: 27 February 1985
• Citation: 695 P.2d 1383,72 Or.App. 342
• Parties: STATE of Oregon, Respondent, v. Roderick Darnell BROWN, Appellant. DA 249576-8301, DA 249577-8301; CA A29759.
• Court: Oregon Court of Appeals

Page 1383

695 P.2d 1383

72 Or.App. 342

STATE of Oregon, Respondent, v. Roderick Darnell BROWN, Appellant.

DA 249576-8301, DA 249577-8301; CA A29759.

Court of Appeals of Oregon.

Argued and Submitted Feb. 22, 1984.

Decided Feb. 27, 1985.

David C. Degner, Hillsboro, argued the cause and filed the brief for appellant.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

BUTTLER, Presiding Judge.

Defendant appeals his convictions for carrying a concealed and loaded handgun in his automobile. ORS 166.250; Portland City Code § 14.32.010. He assigns as error the trial court's refusal to suppress evidence of the handgun seized after a nonconsensual, warrantless search of a closed leather bag seized as a result of a search of the locked trunk of his automobile. Because we conclude that the evidence should have been suppressed, we reverse.

At about 1:15 in the morning, Portland Police Officers Hudson and Krohn observed defendant lawfully driving his automobile in which there was a passenger. The officers stopped defendant, because they had received a complaint from a Ms. Tillman the previous morning that defendant had hit her with his fists and had taken her black clutch purse containing $15 or $20. Hudson was familiar with both defendant and Tillman, having previously investigated a domestic disturbance involving them. He described the present incident as a "beef" that Tillman had with her boyfriend. She had told the officers that defendant always carried a handgun in a "black purse," either on his person or in his car. During the earlier domestic disturbance investigation, Hudson reported that defendant had had a gun in his pocket. The officers put out a bulletin requesting officers to look for defendant's 1974 white and orange Cadillac, giving the license number. No effort was made to obtain a warrant for defendant's arrest or for the search of his car.

The trial court found that the reason for the stop was to arrest defendant on the assault and theft charges and that Hudson informed defendant of the complaint and about the accusation that he possessed a weapon; he also advised defendant that he was under arrest for assault and theft. Defendant did not respond. He was asked for, but refused, permission to search his automobile. Those findings are supported by the record and, although the evidence as to what defendant was told is ambiguous, we are bound by them. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).

Notwithstanding defendant's refusal to consent, the officers searched the passenger compartment and glove box. Krohn then opened the locked trunk, and the officers saw a black leather bag, which they said was similar to the one described by Tillman as the bag in which defendant carried a handgun. It is not clear from the record whether the bag had a zipper, but it was closed. When Krohn picked it up, it felt very heavy, and he could feel a handgun inside. He opened the bag and found a loaded revolver. The bag and its other contents were seized along with the gun.

Sometime after the stop, two other police officers arrived but, according to Hudson, "at that point the situation was under control." Krohn testified that defendant was handcuffed during the entire search. Hudson could not remember when, or if, defendant was handcuffed, but said that he was placed in the patrol car when "we decided we were going into the trunk and get the gun out." The passenger was not arrested, and defendant's car was released to him. Defendant was taken to jail and booked on the assault and theft charges; however, Tillman never signed complaints charging him with those crimes.

Defendant does not challenge the officers' authority to stop his automobile or their authority to arrest him on Tillman's complaint of assault and theft. Neither does he challenge the officers' authority to search for weapons on his person and within the area of his immediate reach. See State v. Davis, 295 Or. 227, 242, 666 P.2d 802 (1983); State v. Chinn, 231 Or. 259, 267, 373 P.2d 392 (1962). His challenge is to the officers' authority to extend their search for the gun to a closed container within the locked trunk of his automobile without his consent and without a warrant.

The case was tried, and is argued here, as if the only question is whether the officers were permitted to search for the gun. We will discuss that question first, but note that, if they were entitled to search for the victim's purse in the locked trunk, seizure of the pistol was lawful. ¹ Defendant's principal argument is that the officers lacked authority to search the trunk for the gun, because they had no basis for believing that the gun was a permissible object of search or seizure. ORS 133.535. In the alternative, he argues that the circumstances were not sufficiently exigent to justify a warrantless search, because he was in custody and the officers had the option of securing his automobile or seizing the bag while seeking a warrant before searching further. The state contends that the search was lawful on any one of three grounds: (1) it was incident to defendant's arrest; (2) it falls within the "automobile exception" to the warrant requirement; (3) it was authorized by the "stop-and-frisk doctrine."

The trial court, relying on United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), upheld the search and seizure. In that case, the United States Supreme Court held that

"* * * the scope of the warrantless search authorized by [the automobile exception] is no broader and no narrower than a magistrate could legitimately authorize by warrant. 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." 456 U.S. at 825, 102 S.Ct. at 2172.

We look to state law first to determine whether the searches and seizures were lawful; only if we determine that they were lawful as a matter of state law do we need to decide whether they were prohibited by federal Fourth Amendment principles such as those applied in Ross. State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983).

We agree with defendant that the officers did not have authority to search the locked trunk of his automobile for the gun. On the basis of the information supplied by the victim, the officers did have probable cause to believe that defendant had a weapon either on his person, in the passenger compartment or glove box of the automobile or in the trunk. When they did not find the weapon on his person, in the passenger compartment or in the glove box, they had probable cause to believe that it was in the trunk. That fact, standing alone, however, does not supply probable cause to believe that the gun was subject to search and seizure under ORS 133.535. Compare State v. Wright, 30 Or.App. 11, 566 P.2d 185 (1977) (defendant was ex-convict and gun was used in the alleged crime), and State v. Jackson, 33 Or.App. 139, 145, 575 P.2d 1001 (1977), rev. den. 283 Or. 99 (1978) (defendant was ex-convict) with State v. Mays, 19 Or.App. 518, 528 P.2d 109 (1974) (no probable cause to believe gun was contraband). It is a crime to carry a concealable weapon in a motor vehicle without a license to do so, unless one of the other statutory exceptions is applicable. ORS 166.250. ² There is no evidence that the officers reasonably believed that defendant did not have a license or evidence that would support a determination that the officers had probable cause to believe that the gun was otherwise subject to search and seizure under ORS 133.535. ³ Without a showing that the gun was subject to search and seizure, a warrant could not issue. ORS 133.555(2). Because a warrant could not have issued on the record before us, the officers were without authority to search the trunk of defendant's automobile for the purpose of seizing the gun. State v. Chinn, supra, 231 Or. at 275, 373 P.2d 392.

The state contends that the search of the trunk was permissible as a search incident to arrest. It is clear that a warrantless search and seizure incident to arrest is permissible if the search is related to the crime for which the defendant is arrested and the search is reasonable under the circumstances, even though the search is not necessary to protect the officer or to prevent the destruction of evidence. State v. Caraher, 293 Or. 741, 759, 653 P.2d 942 (1982). However, a search incident to arrest does not justify exploration of every object in an arrestee's immediate possession and control; ⁴ only those objects that are reasonably related to the reason for the arrest may be searched for or seized, State v. Lowry, 295 Or. 337, 348, 667 P.2d 996 (1983), and if the items could not be seized under a warrant, they may not be seized incident to arrest, in the absence of safety considerations. State v. Chinn, supra.

Here, the officers' search for defendant's gun was not related to the reasons for his arrest. Defendant was arrested for assault and theft. The record shows that neither crime involved a gun. As we have pointed out, the officers could not have obtained a search warrant for the gun without more evidence than is in the record. Accordingly, the search does not fall within the search incident to arrest exception to the warrant requirement.

The state has not argued that the officers were authorized to search for the victim's purse incident to the arrest for theft. Although, as a general proposition, a search for fruits of the theft would have been permissible incident to defendant's arrest, it may be that the state concluded, as do we, that a search of the locked trunk exceeded the permissible bounds of that exception to the warrant requirement.

In addition to being related to the crime for which the person is arrested, a...