State v. Fisher

• Decision Date: 08 June 1971
• Citation: 484 P.2d 864,92 Adv.Sh. 881,5 Or.App. 483
• Parties: STATE of Oregon, Appellant, v. Nicholas Harry FISHER, Respondent.
• Court: Oregon Court of Appeals

Page 864

484 P.2d 864

5 Or.App. 483

STATE of Oregon, Appellant, v. Nicholas Harry FISHER, Respondent.

Court of Appeals of Oregon, Department 1.

Argued and Submitted March 15, 1971.

Decided May 6, 1971.

Rehearing Denied June 8, 1971.

James C. Farrell, Deputy Dist. Atty., Roseburg, argued the cause for appellant. With him on the brief was Doyle L. Schiffman, Dist. Atty. Roseburg.

Arthur A. Wilson, Roseburg, argued the cause and filed the brief for respondent.

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

SCHWAB, Chief Judge.

Defendant was indicted for unlawful possession of marihuana in violation of ORS 474.020. Prior to trial he successfully moved to suppress the evidence, marihuana, seized by the arresting policeman. The state appeals under the provisions of ORS 138.060(4), ¹ contending that the order of suppression was not supported by the evidence.

The arresting officer testified that he stopped the defendant as a routine traffic matter solely to advise him that his rear license plate was loose. He testified that during the colloquy that followed he became concerned because of sudden, suspicious movements made by defendant's passenger, and that he therefore conducted a search for weapons which resulted in his finding marihuana in the glove compartment of the automobile. ² The passenger testified that he did not make any sudden or suspicious movements.

A routine traffic stop is of itself not sufficient cause for making a warrantless search. In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the Supreme Court, speaking of policemen, stated:

'* * * In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous * * *.' 392 U.S. at 64, 88 S.Ct. at 1903.

See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In the case of a warrantless search the burden of proving reasonable cause rests with the state. State v. Roderick, 243 Or. 105, 412 P.2d 17 (1966). The trial judge, after hearing the conflicting testimony, obviously found that the state had failed to meet its burden. In his memorandum opinion he stated:

'It is urged by the State that the conduct of the defendant and his passenger was of a sufficiently suspicious character that the officer was justified in conducting a search of the vehicle for possible weapons. As noted above, the reason for the officer's suspicions is not apparent from the record itself and appears to be more subjective on the part of the officer than based upon any objective observations made by him.'

It is not our function to try a matter such as this de novo. In Alcorn v. Gladden, 237 Or. 106, 111, 390 P.2d 625, 628 (1964), the court said:

'* * * ORS 138.220 provides that in criminal actions 'the judgment or order appealed from can be reviewed only as to questions of law appearing on the record.' We are not authorized to reexamine disputed questions of fact * * *.'

In Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621, 622 (1968), the court said:

'It has been called to the court's attention * * * that the scope of review by this court of questions concerning voluntariness of admissions and confessions has not always been consistent. As a result, it would appear appropriate to discuss in some detail what we consider our proper scope of review of questions concerning the voluntariness of admissions and confessions.

'What actually transpired is a question of fact for the trial court or jury. If the evidence sustains such historical factual findings they will not be disturbed by this court. If findings are not made on all such facts, and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion, e.g., voluntariness or lack thereof, made by the trial court or jury. Whether these historical facts as found are sufficient to sustain a finding of voluntariness which meets state and federal constitutional concepts of due process is another question, and one which falls within our proper scope of appellate review * * *.'

In the case at bar there was a clear conflict in the testimony. The conflict has been resolved by the trier of fact; his findings will not be disturbed by this court. ³

Affirmed.

THORNTON, Judge dissenting.

The search and seizure here occurred shortly after a passenger car driven by defendant and hearing out-of-state license plates was halted by a police officer on routine traffic patrol. The officer testified that after he turned on his red warning light to signal the driver to stop he saw the passenger, who was sitting next to the driver, lean down lowering his right shoulder as if placing or reaching for some object beneath him on the floorboard. Following his normal procedure, the officer first asked defendant for his operator's license and instructed the passenger to keep his hands in sight. The defendant produced and showed the officer an Oregon driver's license in the name of Michael James White, although he was operating a car with Washington license plates. (The police did not learn defendant's true identity until much later). The officer then asked him to produce a car registration card. The defendant replied that he did not have one because he had just purchased the car the week before and had not received a registration yet. The officer testified that shortly after commencing his questioning the passenger made a sudden hand movement for the glove compartment of the car; that he then looked directly at the man, who thereupon returned his hands to their former position. The officer averred that in the next few minutes the passenger made three similar moves, including placing one hand beneath a blanket which was on the front seat. Each time the officer looked directly at the passenger, his hands were returned to their former position.

The passenger, while acknowledging some hand movements, denied reaching toward the glove compartment or beneath the blanket. He did not deny the officer's testimony as to his earlier action. The defendant testified that his back was to the passenger and he could not see what the passenger did with his hands at all times. The officer stated that becoming concerned for his own safety he ordered the passenger to get out of the car. (The defendant was already standing outside the car.) The passenger then got out and stood against the rear door on the opposite side while the officer searched for weapons in the...