State v. Evans

• Decision Date: 19 March 1974
• Citation: 517 P.2d 1225,98 Adv.Sh. 754,16 Or.App. 189
• Parties: STATE of Oregon, Appellant, v. James EVANS, Respondent.
• Court: Oregon Court of Appeals

Page 1225

517 P.2d 1225

16 Or.App. 189

STATE of Oregon, Appellant, v. James EVANS, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Nov. 27, 1973.

Decided Jan. 21, 1974.

Rehearing Denied Feb. 27, 1974.

Review Denied March 19, 1974.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

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

Before SCHWAB, C.J., and THORNTON and TANZER, JJ.

TANZER, Judge.

This is an appeal by the state from a circuit court order granting defendant's motion to suppress as evidence a plastic bag of marijuana seized from defendant's shirt pocket.

On March 16, 1973, Officers Self and Straughan of the Washington County Sheriff's Department were in their police car patrolling Banks. At 3:17 a.m., while in an area where there had been 'heavy vandalism,' the officers saw a car stop and let defendant and a companion out. Officer Self thought that he recognized one of the individuals as someone who had recently been jailed for narcotics activity, so the officers pulled their car alongside defendant and his companion to 'talk to them.' As they pulled their car even with the two pedestrians, Officer Self testified that they turned on their roof-mounted, diagonal 'alley light' to illuminate the area. As Officer Self rolled down his window and asked defendant and his companion for identification, he realized that he had been mistaken in thinking that he knew one of them. Nevertheless, dur to the hour, the officers decided to persist in their request for identification.

Defendant identified himself by means of a draft card and his companion, Hernandez, produced an Oregon driver's license. While Officer Self checked the identification, Officer Straughan got out of the car and walked around the car to where defendant and Hernandez were standing. Noticing bulges in the breast pockets of defendant's 'Levi jacket,' Officer Straughan asked whether either defendant or Hernandez had any weapons. Both denied 'emphatically' that they did. Officer Straughan then asked defendant what he had in his pockets and defendant replied 'golf balls.' Straughan asked if he could see the golf balls and defendant, aftor hesitating 'at first,' produced a golf ball from his left breast pocket. Straughan then asked if he could see the contents of the right breast pocket and defendant said he did not wish to show him. Defendant then turned away from Officer Straughan and Straughan stooped down and shined his flashlight upward at the pocket. Although the pocket was buttoned, the corner of the flap was turned partially up and Straughan, looking upwards, saw in the flashlight beam the the top quarter to half inch of a plastic bag sticking out of the pocket. He testified that there was a small quantity of what he though was probably marijuana adhering to the visible portion of the plastic bag. His conclusion was based on police training and upon experience in prior cases. Straughan seized the plastic bag (which proved upon analysis to contain marijuana) and arrested defendant.

On appeal, both parties have focused their analyses on the dispositive issue in the trial court of whether Officer Straughan was justified in seizing the plastic bag under State v. Childers, Or.App., 97 Adv.Sh. 448, 511 P.2d 447, Sup.Ct. rev. den. (1973), since he stated at the hearing on the motion to suppress only that he 'thought' the substance contained in the bag was marijuana, but was not positive. Certainly is not required. A well-warranted suspicion is sufficient to establish probable cause. State v. Keith, 2 Or.App. 133, 465 P.2d 724, Sup.Ct. rev. den. (1970); State v. Childers, supra, 97 Adv.Sh. at 454--455, 511 P.2d 447. The facts observed by Officer Straughan, as believed by the trial court, regarded in light of his training and experience, are sufficient to warrant a belief that defendant carried a packet of marijuana in his pocket. The fruits of the search should not have been suppressed on that ground.

The next question is whether the observation of the marijuana was properly made. While the observation gave probable cause to believe that defendant carried contraband, it may be relied upon to support the search only if the observation occurred from a lawful vantage. If not, then the search is constitutionally impermissible. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Corbett, Or.App., 98 Adv.Sh. 84, 516 P.2d 487 (1973).

Street encounters between patrolling policemen and citizens call the most subtle aspects of the Fourth Amendment into play. The balancing of theoretical purity and practical necessities is an exceedingly delicate process. The police legitimately require great latitude in their patrol activities to investigate any such circumstances as strategy, experience, or intuition may indicate to be possibly related to actual or potential criminal activity. They need not idly await the accumulation of probable cause before they may act. Indeed, effective police work may call for afrirmative action in circumstances which are outwardly innocent. This decision in not way in meant to restrict effective, vigorous patrol activities.

The police have no less right than any other person to approach another and make inquiry regarding circumstances of interest. Many, if not most, encounters between police and citizenry may occur without contemplation of criminal investigation. The police may be called upon to resolve a marital difficulty, assist a disabled person, untangle traffic congestion, escort an intoxicated person to shelter or any other of the myriad of helping or crime deterrence activities which we expect of the police. Tiffany, Detection of Crime, 10 (1957). The encounter becomes subject to the restrictions of the Fourth Amendment, however, when the citizen's freedom of movement is restricted or his right to privacy is intruded upon by the process of inquiry or as a development of an encounter which was initiated for noncriminal purposes. A holding of the person, no matter how minor, is a seizure within the meaning of the Fourth Amendment even though no arrest has occurred. As stated in Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968):

'* * * It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person. * * *'

Seizures of the person may be of varying intensity. The significance of Terry v. Ohio, supra, beyond its immediate holding, is the establishment of the principle that the police may seize or search a person with such a degree of intensity as may be justified by the articulable quantum of knowledge they have and by the gravity of the police purpose to be served.

Thus where police have probable cause to believe a person has committed a crime, they are authorized to deprive him entirely of liberty and to intrude completely upon his privacy, State v. Cloman, 254 Or. 1, 456 P.2d 67 (1969), or to take such lesser action as will achieve the immediate police purposes. State v. Murphy, 2 Or.App. 251, 465 P.2d 900, Sup.Ct. rev. den. (1970), cert. den. 400 U.S. 944, 91 S.Ct. 246, 27 L.Ed.2d 248 (1970); Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973).

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