State v. Ehly

Decision Date01 July 1993
Docket NumberCR-0958-TM
Citation317 Or. 66,854 P.2d 421
PartiesSTATE of Oregon, Respondent on Review, v. Joseph Elwood EHLY, Petitioner on Review. CC 89-; CA A63346; SC S38790.
CourtOregon Supreme Court

[317 Or. 67-A] Peter Gartlan, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the petition was Sally L. Avera, Public Defender.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her on the response to the petition were Charles S. Crookham, Atty. Gen., Virginia L. Linder, Sol. Gen., and Jas. Adams, Asst. Atty. Gen.


Defendant appeals his convictions for being a felon in possession of a firearm, ORS 166.270(1), and for unlawful possession of a controlled substance, ORS 475.992(4)(b). He contends that the trial court erred in denying his motion to suppress evidence that police officers seized after they responded to a call for assistance from a motel manager. The Court of Appeals affirmed. State v. Ehly, 109 Or.App. 456, 819 P.2d 1386 (1991). We also affirm on different grounds.

Evert, the manager of a motel in Bend, became concerned when defendant failed to check out of a motel room by the scheduled noon check out time and refused to give motel housekeepers access to the room. Evert had been told by the housekeepers that defendant had been abusive to them earlier that morning, "cussing at them through the door." Evert also was aware that defendant and some other persons had rented a room in another motel in Bend a few days earlier and that that room had been found "trashed" after defendant checked out. Evert telephoned defendant and told him that he must vacate the room by 12:15 p.m. and that he must pay his telephone charges and return the room key. When defendant responded abusively, Evert suspected that he might have trouble getting defendant to leave. Evert asked his wife to call the police for assistance.

Fifteen minutes later, Evert went to the motel room "to protect the property from damage and to collect the room key." He discovered defendant with two women, who acted as if they were hiding something. One woman immediately went into the bathroom and flushed the toilet; the other woman left. The motel room had been "trashed." The room was very "messy, and there was garbage lying all over the place, and it looked like some damage had been done." The bedspread had been slashed, heavy pieces of furniture had been moved, and food was spilled on the floor, drapes, and window area. Evert described defendant as being "semi-coherent," "belligerent[,] and nervous." Because of defendant's demeanor, Evert believed that defendant was under the influence of drugs.

Evert told defendant that he owed about $15 for telephone charges and asked for the key. The woman who had remained with defendant went outside, returned, and gave the manager $10. Defendant told Evert that he did not have the key, but that he would leave. Evert told defendant that he was free to leave, but that Evert intended to hold two bags as security for payment of the remainder of the telephone bill and the return of the key. See ORS 87.156(1) (innkeeper's lien).

Police officers Cleaves and Emerson soon arrived at the motel in response to what they characterized as a report that there was "a possible altercation in progress" with the manager of the motel involving defendant and two other persons who were in the room. 1 The officers were in uniform and arrived in a marked police car. As the officers entered the motel parking lot, they saw a man whom they knew to be Gene Gammond, and whom they also knew might be armed with an automatic handgun, leaving with an unidentified woman in a car. They knew that defendant had been seen with Gammond the day before and that the two men were friends who had been "running together."

As the officers entered the motel room, they observed Evert and defendant arguing. Defendant was "very nervous, very anxious." The officers knew that defendant was a methamphetamine user, and they believed that he was under the influence of methamphetamine at that time. 2 They also knew that defendant had prior felony convictions.

Evert told the officers that the problem was that defendant was not "vacating the room." The officers told Evert to "stand back," and he did. The officers then told defendant that he would have to leave. Defendant picked up the two bags and walked toward the door. The officers did not block the door or try in any way to prevent defendant from leaving. Defendant was not under arrest and, as far as the officers were concerned, he had not committed any crime. Defendant was not threatened and no physical force was used against him. Evert told the officers that he wanted the key and that defendant had told him, "It must be in my bags." The officers asked defendant to give Evert the key. Defendant responded that the key might be in one of the bags, but that the bags were not his; that they belonged to "a friend." When defendant did not produce the key, Corporal Cleaves asked, "Well, why don't we walk over here to the bed?" Defendant walked over to the bed and set the bags down. Cleaves asked defendant to try to find the key. Defendant agreed. 3 The officers then stood back while defendant opened and began rummaging with one hand through the smaller of the two bags, a gym bag about 18 inches wide and 24 inches long. Defendant then put both his hands into the gym bag and continued rummaging through it. Defendant's hands were concealed as he continued to rummage through the gym bag.

At that time, Corporal Cleaves became very concerned that there might be a gun in the gym bag. They knew that defendant's friend Gammond, who they believed was carrying an automatic handgun, had just left the motel. Officer Emerson then asked defendant why he did not simply dump the gym bag's contents on the bed and look for the key. Defendant did not respond to Emerson's question; he continued to rummage through the gym bag with both his hands concealed. At that time, Corporal Cleaves suspected that defendant was reaching for a gun. 4

Corporal Cleaves then put her hand on her gun and ordered defendant to "back up." She then grabbed the gym bag and dumped its contents on the bed. A loaded .32 automatic handgun fell out of the gym bag. Other things, including clothing, papers, letters, and personal belongings also fell out of the gym bag. Many of those items had defendant's name on them. Corporal Cleaves seized the handgun. Corporal Cleaves then arrested defendant for being a felon in possession of a firearm. ORS 166.270(1). 5

Corporal Cleaves then asked defendant to dump the contents of the second bag on the bed. Defendant said that the bag belonged to someone else, but he emptied it anyway. The officers then noticed a "baggie" of a suspected controlled substance--it proved to be methamphetamine--on the bed that had not been there before, which they seized. After the gun and the methamphetamine were discovered, defendant volunteered to the officers that the gun and the other contents of the bags belong to "a friend of his." The officers then arrested defendant for being a felon in possession of a firearm.

Before trial, defendant moved to suppress the handgun and the methamphetamine, arguing that a search had been carried out without consent or probable cause. 6

At the conclusion of the hearing, the trial court summarized the evidence as follows:

"[T]he police officers came into the room; the Defendant was free to go, he was not in custody. The police said he could go. On the way out, they requested that he give the key. At that point, he voluntarily put his hands in the bag. At that point, based on all the things: the Defendant being intoxicated, running with Mr. Gammond, his intoxicated state, the report of the semi-automatic pistol being in the possession of Mr. Gammond, the Defendant's background, the--Gammond's background, all these things led the officers to be wary of their--what was going to happen next, and that they were justifiably concerned about their safety. And [the Corporal] was entirely justified in dumping out the bag, and at that point the weapon came out, and at that point, the key wasn't there, and then the officer asked what was in the other bag; and then the Defendant voluntarily dumped the other bag, and, at that point, as the items were being placed back in the bag, the substance which was found, which is the contention of the possession of the controlled substance, was then found."

The court then stated:

"I'm not going to reiterate all the facts that I [summarized above], but those facts stand as my conclusions. I'll also find that although the Defendant was somewhat intoxicated, he was not so intoxicated he did not understand what was going on. He seems to have a clear memory of what happened, but certainly it stands, from my interpretation of the evidence, that he was in an intoxicated state, and by the officers' testimony it appeared to be that of drugs. I further find that it was the Defendant who volunteered to place his hands into the bag initially, and certainly the officer--both officers were well justified, based on training and all the factors which I have indicated heretofore, that they were justified in being concerned about their safety, and the immediate dumping out of the bag seems to be the only reasonable action the police officers could have taken, at that point, to insure their safety, at that time, they found the weapon. I'll further find that the Defendant was freely given the opportunity to disclose the contents of the second bag, and that given the opportunity, he dumped those, and, I might add, it was only after the police officer was helping him put the stuff back in, that they found this container that apparently had methamphetamine. The Defendant was not in custody, he volunteered to go into his bag to retrieve the...

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