State v. Edmiston
| Decision Date | 01 July 2009 |
| Docket Number | 05FE0501ST.,A133360. |
| Citation | 229 Or. App. 411,211 P.3d 340 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Brian Donald EDMISTON, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Rebecca A. Duncan, Chief Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.
Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before EDMONDS, Presiding Judge, and SERCOMBE, Judge, and CARSON, Senior Judge.
The issue in this case is whether the detection of a small plastic baggie of unknown contents in defendant's possession was sufficient to furnish probable cause to arrest defendant for possession of a controlled substance, as proscribed by former ORS 475.992 (2003), renumbered as ORS 475.840 (2005). Defendant was convicted of that crime and assigns error to the trial court's denial of his motion to suppress evidence obtained as a result of searches made incident to his arrest. We review the trial court's findings for errors of law, State v. Warner, 136 Or.App. 475, 478, 901 P.2d 940 (1995), and reverse.
We state the facts consistently with the trial court's explicit and implicit findings. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993); Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). Our task is to "decide whether the trial court applied legal principles correctly to those facts." Ehly, 317 Or. at 75, 854 P.2d 421.
On March 9, 2005, Deschutes County Sheriff's Deputy Crawford stopped defendant's car because of a headlight violation. Crawford asked for defendant's license, registration, and proof of insurance. While defendant looked through a day planner notebook for the requested documents, Crawford shined his flashlight though the car window and watched. He observed a small, clear, plastic baggie in the day planner, though he could not see the contents of the baggie. Crawford took the day planner from defendant, retrieved the baggie, opened it, and discovered methamphetamine residue on the inside of the baggie. He arrested and searched defendant and discovered methamphetamine and marijuana in defendant's pockets.
Defendant moved to suppress the drug possession evidence, arguing that the deputy's seizure and search of the baggie were not justified under Article I, section 9, of the Oregon Constitution1 and that all evidence derived from that search was inadmissible. At the suppression hearing, Crawford testified that the baggie was approximately one inch by one inch in size. Crawford further stated that he had specialized drug investigation training and had seen packaged methamphetamine hundreds of times. Crawford testified that, in the "vast majority of cases," methamphetamine in quantities intended for personal use is packaged in a one inch by one inch baggie and that he had seen something other than drugs in that type of baggie on only one occasion, when the baggie contained beads.
Crawford also testified that he had attempted to purchase one inch by one inch baggies for training purposes, but was not able to purchase them at stores such as "Wal-Mart, Safeway, Fred Meyer and Shopko" because they are a "specialty item." The trial court determined that observation of the baggie was sufficient to establish probable cause to justify seizure of the baggie:
The trial court denied the motion to suppress, and this appeal followed.
On review, the parties agreed to the narrow issue before the court. That issue is whether the deputy's discovery of a portion of the baggie protruding from the day planner provided an objectively reasonable basis to believe that defendant was in possession of controlled substances, so as to justify his arrest and search incident to that arrest.2 Thus, the search and seizure in this case could be sustained if Crawford had probable cause to arrest defendant and the searches were otherwise reasonable. To establish probable cause, "[a]n officer must subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure, and this belief must be objectively reasonable in the circumstances." State v. Owens, 302 Or. 196, 204, 729 P.2d 524 (1986); see also State v. Barraza, 206 Or.App. 505, 509, 136 P.3d 1126 (2006).
The parties do not dispute that, based on his observation of the baggie, Crawford subjectively believed that defendant was in possession of a controlled substance. Defendant argues, however, that the possession of the baggie is insufficient, by itself, to establish a probability that the baggie contained controlled substances and that there was no probable cause to arrest him or to seize the baggie. The state contends that the trial court found that baggies of the type spotted are "not in common use for anything other than the packaging and possession of methamphetamine," so that defendant's possession of controlled substances was probable.
Our cases identify several factors to evaluate probable cause to arrest or search based largely on evidence of a particular container that could contain drugs. Those factors include the nature of the container itself, the context in which the container was found, and the knowledge and experience of the investigating police officer. State v. Stock, 209 Or.App. 7, 13, 146 P.3d 393 (2006). Some containers, by their very nature, are "so uniquely associated with the storage and transportation of controlled substances that their unique packaging alone might provide, to an officer with training and experience in the area of drug detection, probable cause to believe they contain a controlled substance." State v. Herbert, 302 Or. 237, 242, 729 P.2d 547 (1986). In Herbert, the Supreme Court noted that aluminum foil bindles and balloons "might be" examples of "such unique containers." Id.3
Other containers, like film canisters, may often be connected with drugs, but do not necessarily give rise to probable cause without additional evidence. For instance, we have found that discovery of a film canister, together with corroborating circumstances of criminal activity or suspicious actions directed toward the closed container, can give rise to probable cause to arrest. Compare State v. Lanig, 154 Or.App. 665, 669, 963 P.2d 58 (1998) (), and State v. Lane, 135 Or.App. 233, 242, 898 P.2d 1358 (1995) (), with State v. Poulson, 150 Or.App 164, 945 P.2d 1084 (1997) ().
In Stock, we determined that very small plastic bags, although "very frequently used to carry drugs," are "not so uniquely associated with carrying drugs that the contents of the bag[s] * * * [are] so obvious as effectively to be in plain view." 209 Or.App. at 13, 146 P.3d 393. Thus, the baggie by itself is insufficient to demonstrate an objectively reasonable basis to support probable cause to arrest defendant. The question becomes whether Crawford's knowledge, experience, and testimony that methamphetamine is packaged in small plastic baggies in the "vast majority of c...
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