State v. Currin

• Decision Date: 02 October 2013
• Docket Number: A148700.,CFH100319
• Citation: 311 P.3d 903,258 Or.App. 715
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Angela Marie CURRIN, Defendant–Appellant.
• Court: Oregon Court of Appeals

258 Or.App. 715

311 P.3d 903

STATE of Oregon, Plaintiff–Respondent,

v.Angela Marie CURRIN, Defendant–Appellant.

CFH100319; A148700.

Court of Appeals of Oregon.

Argued and submitted July 30, 2013.

Decided Oct. 2, 2013.

Neil Francis Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Matthew J. Lysne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO and EGAN, Judges.

EGAN, J.

Defendant appeals a judgment of conviction for one count of unlawful delivery of methamphetamine, ORS 475.890, assigning error to the trial court's denial of her motion to suppress evidence that was discovered in a plain white envelope. Defendant contends that the officer who discovered the envelope lacked probable cause to believe that it contained contraband and, thus, that its warrantless seizure was unlawful under Article I, section 9, of the Oregon Constitution. Defendant also contends that the trial court erred by not suppressing statements that she made in response to police questioning about the envelope's contents. For the following reasons, we reverse and remand.

The pertinent facts are undisputed. Hermiston Police Officer Roberts responded to a report of a man “hanging around” at an apartment building that Roberts knew to be an area in which drug activity was “fairly common.” When Roberts arrived at the building to investigate, he spotted a man matching the description that he had been given. The man was walking towards a parked pickup truck, but, upon seeing Roberts approaching, he reversed course and retreated inside the apartment building. Defendant was in the pickup truck; Roberts approached and immediately recognized defendant, although he could not remember defendant's name. Roberts recalled that he had previously arrested defendant for driving under the influence of a controlled substance and, on a separate occasion, for possession of methamphetamine. Roberts asked defendant who the man was; defendant stated that “his name is Shannon,” but then stated that she thought that his name was instead “Sean or John or something like that.”

Roberts left defendant sitting in the pickup truck and went to the apartment that he had seen the man enter. The man identified himself as Shannon Taylor and he and Roberts conversed for three or four minutes. Roberts then left to return to his car, but noticed that defendant was still sitting in the parked pickup truck. He ran a records check on the vehicle, which revealed that it was registered to a man with the last name Heifer; Roberts remembered that he had previously seized methamphetamine lab components while executing a search warrant at Heifer's residence. Roberts also recalled that he had previously arrested Heifer in that same pickup truck for possession of methamphetamine. Roberts reapproached the pickup truck and asked defendant why she was still parked there. Defendant responded that she was waiting for a friend and indicated that the truck belonged to her husband. When Roberts then asked defendant if she had anything that she should not have in the vehicle, defendant replied, “I don't think so.” Roberts then asked for her consent to search the vehicle; defendant declined to provide that consent. Roberts ran a records check, which revealed an outstanding warrant for defendant's arrest from Washington State. Accordingly, Roberts informed defendant that he was placing her under arrest.

Roberts opened the pickup truck door and asked defendant to step out of the vehicle. As he did so, he noticed that defendant was holding a plain, unmarked white envelope. Roberts told defendant to “[g]o ahead and put the envelope down and step out.” Defendant then started to put the envelope in her purse, but suddenly, according to Roberts, after defendant had put the envelope halfway into the purse, she paused for a moment, lifted her head up, and tossed the envelope on the passenger-side floor. At the suppression hearing, Roberts testified that he had interpreted defendant's pause as a reflection of her thinking—“What do I do now?”—and that he thought defendant was trying to conceal a controlled substance from discovery during the arrest process.

Roberts placed defendant in handcuffs and then returned to the pickup truck and retrievedthe envelope. Upon picking it up, Roberts immediately felt a paperfold inside; he testified that, in his experience, such a paperfold is very commonly used to contain controlled substances. Roberts read defendant her Miranda rights and then asked her what was inside the envelope. After initially denying that she knew, defendant stated that the envelope contained “annie,” which Roberts understood to be a street term for a type of methamphetamine. Subsequent testing confirmed Roberts's understanding of the envelope's contents.

Defendant filed a motion to suppress the contents of the envelope and the statements that she made in response to Robert's questioning. The trial court denied the motion, concluding that Roberts had probable cause to believe that the envelope contained contraband prior to questioning defendant about its contents. The court thus concluded that “[t]he envelope[,] being in plain view [,] could be seized given the probable cause the officer had.” Defendant timely appeals; she contends that Roberts lacked probable cause to seize the envelope and that the trial court therefore erred under Article I, section 9, of the Oregon Constitution by denying her motion.¹ The state responds that Roberts was justified in seizing the envelope because he had probable cause to believe that it contained contraband.

“A warrantless search is lawful only if it falls within one of the few specifically established and well-delineated exceptions to the warrant requirement. Likewise, a seizure may be justified in the absence of a warrant, but only if the circumstances come within one of the exceptions to the warrant requirement.” State v. Peterson, 114 Or.App. 126, 128, 834 P.2d 488,rev. dismissed,315 Or. 272, 844 P.2d 207 (1992) (citations omitted). The trial court concluded that the automobile exception did not apply in this case because “[d]efendant's vehicle was immobile and so no exigency applied to search the vehicle.” ² The court also concluded that the search-incident-to-arrest exception did not apply.³ The state does not, on appeal, attempt to justify the seizure of the envelope under either of those exceptions. Rather, the plain-view doctrine is the only ground on which the state attempts to justify the warrantless seizure.

Under the plain-view doctrine, an officer may seize an item if the officer can do so from a position where that officer is entitled to be and the incriminating character of the item to be seized is “immediately apparent.” State v. Carter, 200 Or.App. 262, 113 P.3d 969 (2005), aff'd,342 Or. 39, 147 P.3d 1151 (2006) (internal quotation marks omitted). In Carter, the Supreme Court stated that, in the context of evidence discovered in plain view during the execution of a search warrant, the plain-view doctrine “permitted the officers to seize evidence without a warrant if, in the course of executing this search warrant and while they were in a place where they had a right to be, they had probable cause to believe that evidence that they saw was either contraband or evidence of a crime.” 342 Or. at 45, 147 P.3d 1151. In State v. Owens, 302 Or. 196, 202–03, 729 P.2d 524 (1986), the Supreme Court stated, in the context of a search incident to arrest, that “[w]hen an officer has probable cause to believe that an object he has lawfully discovered is contraband and, therefore, that a crime is being committed in his presence, he has the right to seize it.” See also Texas v. Brown, 460 U.S. 730, 740–42, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (stating that, in the Fourth Amendment plain-view context, “immediately apparent” is equivalent to the probable cause standard).

Defendant does not argue—and did not argue to the trial court—that Roberts was not lawfully entitled to reach into the car to retrieve the envelope. We are therefore confinedto consider two issues in this appeal: (1) Did Roberts have probable cause to believe that the envelope contained contraband or evidence of a crime at the time he seized it; and (2) if he did not, is suppression of the evidence required?

“The determination of probable cause is a legal, not a factual, conclusion. Probable cause does not require certainty.” State v. Herbert, 302 Or. 237, 241, 729 P.2d 547 (1986). Instead, “[p]robable cause means a well-warranted suspicion. It requires substantially less than proof beyond a reasonable doubt, but something more than a mere possibility.” State v. Alpert, 52 Or.App. 815, 821, 629 P.2d 878 (1981) (citations and internal quotation marks omitted). For purposes of Article I, section 9, probable cause requires that the officer “subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure”; additionally, “[that] belief must be objectively reasonable in the circumstances.” Owens, 302 Or. at 204, 729 P.2d 524.

In Herbert, a case that the state urges is similar to the present one, the Supreme Court upheld the warrantless seizure of an opaque paperfold based on its conclusion that the officer had probable cause to believe that the paperfold contained contraband. 302 Or. at 242, 729 P.2d 547. There, an officer was arresting a defendant on a warrant for failing to appear on a prior charge. The defendant asked to retrieve identification from his truck and, while he was ostensibly doing so, the officer noticed the defendant pull out a small paperfold from his overalls and place it on a shelf beneath the truck's glove compartment. The officer seized the paperfold and...