State v. Downes

Citation285 Or. 369,591 P.2d 1352
Decision Date27 February 1979
Docket NumberNo. 76-4039,CA,76-4039
PartiesSTATE of Oregon, Respondent, v. Arthur Robert DOWNES, a/k/a Lawrence Downes, Petitioner. 7366, SC 25654.
CourtSupreme Court of Oregon

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen. and Al J. Laue, Sol. Gen., Salem.

Stephen Kanter, Portland, filed a brief amicus curiae in behalf of Oregon American Civil Liberties Union.

DENECKE, Chief Justice.

This is one of the four automobile search and seizure cases in which we granted petitions for review to attempt to clarify the law in this regard. State v. Greene, 30 Or.App. 1019, 568 P.2d 716 (1977); State v. Fondren, 30 Or.App. 1045, 568 P.2d 721 (1977); State v. Groda, 32 Or.App. 287, 573 P.2d 1269 (1978).

The question raised in this case is whether an officer, without a warrant, can constitutionally search a closed container found in a vehicle which the officer had the right to stop, search and seize.

The motion to suppress was heard on stipulated facts. The defendant was suspected of manufacturing drugs. The defendant, while driving a converted school bus on a public highway, was validly stopped by officers. Inside the bus, in plain view, the officers saw property they knew was stolen and the officers, therefore, arrested defendant. The bus was driven by the officers or someone on their behalf back to a "towing" or "police" lot in Eugene, Oregon. Some time thereafter, probably while defendant was in jail, officers opened a closed, unlocked trunk found in the bus. Inside the truck was a cosmetic kit or flight kit. The officers opened this and inside was a bag which contained the drug.

Defendant was charged with criminal conspiracy to commit criminal activity in drugs. The trial court suppressed the use of the drugs found in the trunk in evidence. The state appealed, and the Court of Appeals reversed. State v. Downes, 31 Or.App. 419, 571 P.2d 914 (1977).

At the hearing on the motion to suppress and in its brief before the Court of Appeals the state argued that the search was constitutionally permissible as an inventory search. State v. Keller, 265 Or. 622, 510 P.2d 568 (1973), held to the contrary. We there held that the police were not constitutionally authorized, in taking inventory of the contents of a rightfully impoundedvehicle, to open a closed fishing tackle box found in the vehicle. We observed that if the officers had probable cause to believe the tackle box contained contraband or evidence of a crime they should have applied for a search warrant. The search in the present case cannot be justified as an inventory search.

The state also argued, and the Court of Appeals concluded, that the search could be justified under the principle first stated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925), and particularly as amplified in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Carroll held a vehicle could be searched without a warrant if the officers had probable cause to believe it had contraband or evidence of a crime and there were exigent circumstances which prevented the officer from first applying for a warrant. Chambers held whether there were exigent circumstances should be tested as of the time when the vehicle was seized, not later when it was in the police lot. Chambers upheld a search that included a search of a compartment under the dash.

On the basis of Chambers, the Court of Appeals was justified in deciding the search was valid. However, at about the same time that the Court of Appeals decided this case, the Supreme Court decided United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and made a distinction which Chambers did not foretell.

In Chadwick, narcotics agents had probable cause to believe a locked footlocker shipped to Boston by rail contained marijuana. The agents observed the defendant claim the footlocker in Boston and have it carried to the trunk of a waiting car. Before the car could be started or the trunk closed, the agents arrested defendant and the others with him. The agents took the footlocker to the Federal Building. About an hour and one-half after the...

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23 cases
  • State v. Brown, CA
    • United States
    • Supreme Court of Oregon
    • September 22, 1981
    ...supra; State v. Groda, 285 Or. 321, 591 P.2d 1354 (1979); State v. Fondren, 285 Or. 361, 591 P.2d 1374 (1979); State v. Downes, 285 Or. 369, 591 P.2d 1352 (1979). The defendant also argues that the size or location of the closed container should not make any difference. In other words, it i......
  • State v. Goff, 14151
    • United States
    • Supreme Court of West Virginia
    • December 2, 1980
    ...People v. Grana, 185 Colo. 126, 527 P.2d 543 (1974); State v. Parker, 153 N.J.Super. 481, 380 A.2d 291 (1977); State v. Downes, 285 Or. 369, 591 P.2d 1352 (1979); State v. McDougal, 68 Wis.2d 399, 228 N.W.2d 671 (1975).8 The instruction in Byers was:" 'The Court instructs the jury that the ......
  • State v. Lowry, TC
    • United States
    • Supreme Court of Oregon
    • July 26, 1983
    ...observed in plain view in the vehicle, as happened, for instance, in State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981); State v. Downes, 285 Or. 369, 591 P.2d 1352 (1979); State v. Jackson, 62 Or.App. 7, 660 P.2d 183, rev. allowed 295 Or. 31 (1983); State v. Tremaine, 56 Or.App. 271, 641 P.2......
  • State v. Prober, 77-609-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • September 30, 1980
    ...(1974); State v. Boster, 217 Kan. 618, 539 P.2d 294, 302 (1975); State v. Hatfield, 364 So.2d 578, 582 (La.1978); State v. Downes, 285 Or. 369, 591 P.2d 1352, 1353 (1979); and State v. Catlette, 88 S.D. 406, 221 N.W.2d 25, 29 (1974) (disapproving searches of trunks).6 By "other compartments......
  • Request a trial to view additional results

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