State v. Burr

• Citation: 136 Or.App. 140,901 P.2d 873
• Parties: STATE of Oregon, Appellant, v. Noah BURR, Respondent. STATE of Oregon, Appellant, v. Christopher Michael ALVAREZ, Respondent. STATE of Oregon, Appellant, v. Matthew FRIES, Respondent. STATE of Oregon, Appellant, v. Matthew Alan VAN BERGEN, Respondent. 930258CR to 930261CR; CA A83869 (Control) to CA A83872.
• Decision Date: 23 August 1995
• Court: Court of Appeals of Oregon

Page 873

901 P.2d 873

136 Or.App. 140

STATE of Oregon, Appellant, v. Noah BURR, Respondent.

STATE of Oregon, Appellant, v. Christopher Michael ALVAREZ, Respondent.

STATE of Oregon, Appellant, v. Matthew FRIES, Respondent.

STATE of Oregon, Appellant, v. Matthew Alan VAN BERGEN, Respondent.

930258CR to 930261CR; CA A83869 (Control) to CA A83872.

Court of Appeals of Oregon.

Argued and Submitted March 1, 1995.

Decided Aug. 23, 1995.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Dan Maloney, Deputy Public Defender, argued the cause for respondents Noah Burr, Matthew Fries and Christopher Michael Alvarez. With him on the brief was Sally L. Avera, Public Defender.

Brian D. Aaron, Portland, argued the cause and filed the brief for respondent Matthew Alan Van Bergen.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

EDMONDS, Judge.

Defendants were each charged with one count of manufacture of a controlled substance and one count of possession of a controlled substance. ORS 475.992(1), (4)(a). Before trial, defendants moved to suppress evidence seized following a warrantless search of a pickup and the admissions obtained from defendants thereafter. The trial court granted defendants' motion, and the state appeals. ORS 138.060(3). The issue is whether the warrantless search violated defendants' constitutional rights under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. We reverse.

The trial court found:

"1) On October 7, 1993, on highway 281 in Hood River County at approximately 9:50 p.m., Hood River Sheriff's Deputy Jim Tomson, while on patrol, observed a pickup truck parked on the east shoulder of the road. The truck's lights were off and it did not create a traffic hazard. The deputy was in his patrol car and in uniform. He pulled up, parked perpendicular to the pickup and got out to see if any assistance was needed. The four defendants were present in the area of the pickup and said that the vehicle had overheated. Shortly thereafter, they said they had been hunting. The deputy noted that the pickup did not appear to be hot, even though the defendants said they had just pulled up to this area. The deputy noted a deflated rubber raft located at the rear of the pickup. The individuals were placing the raft into the bed of the pickup.

"2) It was dark at this time. The deputy noted there were no guns in or about the pickup. The defendants offered a third story to the deputy; they were looking the area over and had left their weapons at home in Gresham.

"3) The deputy asked the individuals for identification and papers on the pickup. They produced identification and the deputy ran an ID check through the Hood River County Sheriff's dispatch.

"4) Deputy Tomson was notified by dispatch that Noah Burr was wanted on a felony warrant for Menacing, Unlawful Use of Weapons, Delivery of a Controlled Substance and Tampering With a Witness and was told to use caution when dealing with Mr. Burr.

"5) Up to this point, the individuals were cooperative and friendly. The Deputy did not tell them they could not leave.

"6) Upon being informed by Dispatch of Mr. Burr's warrant, Deputy Tomson placed Mr. Burr under arrest and put him in the patrol car.

"7) With Deputy Tomson was Jason Ritock, an unarmed reserve officer who was not in uniform. After placing Mr. Burr in the patrol car, Deputy Tomson, standing at a distance from the remaining three individuals, asked them who owned the pickup. He was informed that the pickup belonged to Mr. Van Bergen's grandmother.

"8) Approximately five to eight minutes after the time Deputy Tomson was informed of Mr. Burr's outstanding warrant, Deputy Sheriff Paul Ufford arrived upon the scene.

"9) Deputy Tomson observed four Coors beers in the bed of the pickup that were partially covered by the rubber raft. Between the time that Mr. Burr was placed under arrest and Deputy Ufford arrived, Deputy Tomson discussed with the remaining defendants their various stories, and questioned them as to why they were really there. At no time prior to Deputy Ufford arriving did Deputy Tomson tell the defendants that they could not leave. There was some discussion about who would drive the pickup. Deputy Tomson was concerned about who was licensed to drive.

"10) When Deputy Ufford arrived, he had his overhead lights on and parked his vehicle parallel to Tomson's and perpendicular to the pickup. There was room for the pickup to leave; it was not blocked by either patrol vehicle. Upon Ufford's arrival, Tomson informed him of the three stories told by the remaining defendants. Deputy Ufford nodded and walked over to the three individuals by the pickup. Tomson was concerned about the status of the pickup in that neither the registered owner, nor the claimed owner was at the scene. When Ufford arrived at the scene, he noticed one of the individuals in the patrol car and the other three standing by the bed of the pickup. Tomson had not turned on his patrol car's overhead lights or siren, nor had he drawn his weapon. When Ufford arrived, he left his car's overhead lights on, but did not pull out his service revolver.

"11) Almost immediately upon getting out of his patrol car, Ufford smelled marijuana. Ufford testified credibly that he suffers severe allergic reactions when exposed to marijuana and after leaving the scene, he was unable to complete his duty shift as a result of this exposure. At the time Ufford smelled the marijuana, he stated, "Where's the dope?" He walked around the far side of the pickup to check on the passenger side, opened the passenger door, looked on the floor board and didn't see anything.

"12) Deputy Ufford then moved to the rear of the pickup and the smell of marijuana grew stronger. He moved the raft covering the pickup bed and uncovered two ice chests. When he removed the raft, the marijuana smell was even stronger. He noted a marijuana leaf sticking out of one of the ice chests. He opened the ice chest and observed marijuana protruding from backpacks inside the chest. The ice chest in which the marijuana leaf was visible to the deputy contained two packs with marijuana leaves sticking outside of the bags. The bags were approximately 14 inches wide by eight inches deep and 14 inches high and were stuffed inside the ice chest. They were full of freshly cut marijuana."

We are bound by the trial court's express or implicit findings provided that they are supported by evidence in the record. In this case, they are. In its conclusions of law, the trial court said, "The vehicle was neither occupied nor mobile at the time Deputy Therman first observed it." Accordingly, our function is to decide whether the trial court erred when it concluded as a matter of law that the pickup was not "mobile." State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993).

The state argues that the application of the "automobile exception" to the general prohibition against warrantless searches was justified under the circumstances of this case. That exception provides that "if police have probable cause to believe that a person's automobile, which is mobile when stopped by police, contains contraband or crime evidence," they may conduct a warrantless search of the vehicle for those items. State v. Brown, 301 Or. 268, 276, 721 P.2d 1357 (1986). Defendants argue that the automobile exception does not apply to the facts of this case because the pickup was parked and they were outside its cab at the time the officers encountered it.

A review of the case law is instructive in deciding this issue. In Brown, the defendant was stopped while he was driving his automobile. When the defendant declined to consent to a search of his automobile, the officers searched the passenger's compartment and the glove box for evidence that would support the accusation that he was in possession of a weapon. The Supreme Court held:

"This case presents for us the heretofore unanswered question: Is there an 'automobile exception' to the warrant requirement of Article I, section 9, of the Oregon Constitution? We hold that there is such an exception, provided (1) that the automobile is mobile at the time it is stopped by police or other governmental authority, and (2) that probable cause exists for the search of the vehicle." 301 Or. at 274, 721 P.2d 1357.

The decision in Brown was followed by State v. Kock, 302 Or. 29, 725 P.2d 1285 (1986). In Kock, two police officers were watching the parking lot and entry area of a store where the defendant worked. The store manager had told the police before the surveillance that the defendant did not have permission to take merchandise from the store. The defendant customarily worked in the store between 4:00 and 6:30 a.m. The officers saw him come to work and enter the store between 3:30 and 4:00 a.m. He did not take anything into the store with him. At 5:42 a.m., they saw him leave the store with a box, which he took to his car. He removed a package from the box and put the package in the car. After smoking a cigarette, the defendant returned to the store, taking the box with him. When the defendant had left, the officers searched the car and seized the package.

The court held that the automobile exception did not apply. It said:

"[W]e elect to draw the so-called bright line of Brown just where we left it in that case: Searches of automobiles that have just been lawfully stopped by police may be searched without a warrant and without a demonstration of exigent circumstances when police have probable cause to believe that the automobile contains contraband or crime evidence. In this case, we assume, for the sake of argument, that there was probable cause for the search of the automobile. We nevertheless hold that any search of an automobile that was parked, immobile and...