State v. Fugate

• Decision Date: 20 December 2006
• Docket Number: CR030051; A122496.
• Citation: 210 Or. App. 8,150 P.3d 409
• Parties: STATE of Oregon, Respondent, v. Michael FUGATE, Appellant.
• Court: Oregon Court of Appeals

150 P.3d 409

210 Or. App. 8

STATE of Oregon, Respondent, v. Michael FUGATE, Appellant.

CR030051; A122496.

Court of Appeals of Oregon.

Argued and Submitted July 31, 2006.

Decided December 20, 2006.

COPYRIGHT MATERIAL OMITTED

Stephanie Hortsch, Deputy Public Defender, argued the cause for appellant. On the brief were Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Monica L. Finch, Deputy Public Defender, Office of Public Defense Services.

Benjamin R. Hartman, 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 HASELTON, Presiding Judge, and BREWER, Chief Judge, and ROSENBLUM, Judge.

BREWER, C.J.

Defendant appeals a judgment convicting him, after a trial on stipulated facts, of possession of a controlled substance. Former ORS 475.992 (2003), renumbered as ORS 475.840 (2005). Defendant asserts that the trial court erred in denying his motion to suppress evidence of the contents of a folded piece of tin foil that a police officer opened after defendant handed it to him. The trial court determined that defendant consented to the search. Defendant contends that the search violated Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution because it exceeded the scope of his consent. Because the pertinent facts are undisputed, we review that issue as one of law. State v. Arroyo-Sotelo, 131 Or.App. 290, 294-95, 884 P.2d 901 (1994). We reverse and remand.

On January 9, 2002, Officers Huber and Ray went to the home of James Bowie. Ray was following up on the investigation of a stabbing incident. Ray had received information that a red pickup truck was involved in the incident and that the pickup might be found at Bowie's residence. Huber was familiar with Bowie's residence and agreed to accompany Ray.

The officers arrived at Bowie's residence and knocked on the door, and Bowie answered. Bowie stepped outside to speak with the officers. Huber asked for consent to enter the residence, and Bowie gave consent. Huber went inside while Ray remained outside and talked to Bowie about the truck.

Huber found five people, including defendant, inside the residence. Huber was acquainted with all of them except for defendant. Huber asked everyone present for identification, and each person gave him either an identification card or other identifying information. Huber ran a warrant check on all of the people inside the house and then returned their identification cards.

While inside the house, Huber saw a "hard plastic black carrying case that appeared to be a carrying case for a car stereo." Because the officers were interested in the red pickup truck and because almost everyone in the residence told Huber that "none of them had driven to the residence," Huber asked whom the case belonged to. Defendant said that the case was his. Huber asked what the case contained, and defendant answered that a stereo was inside. Huber asked if he could see it, and defendant opened the case, removed the stereo face plate, closed the case, and showed Huber the stereo.

When defendant opened the case, Huber noticed that defendant lifted it in a manner suggesting that he was trying to keep Huber from seeing something. Huber also noticed a silver object in the case. Huber asked defendant what else was inside the case, and defendant opened it and removed the silver object. At that point, Huber could tell that the object was tin foil.

Huber testified that tin foil "is commonly used for the consumption, inhalation, and storage of illegal narcotics." Huber suspected that the tin foil contained controlled substances based on his previous contacts with "individuals that were in that room." However, Huber did not believe that he had probable cause to conclude that a controlled substance was inside the tin foil. When defendant removed the tin foil from the case, Huber asked defendant "if I could see it." Defendant handed the tin foil to Huber. Huber asked defendant what was inside the foil, and defendant said that he did not know. Huber then unfolded the foil and saw what appeared to be burnt residue. Huber asked defendant "what he used the tinfoil for," and defendant again said that he did not know. Huber then asked defendant to step outside the residence, and defendant complied. Huber then questioned defendant further. Defendant admitted that the tin foil was his and said that he had used it earlier that day to smoke "crank."¹

Huber asked defendant if he had any more methamphetamine, and defendant said no. Huber asked for consent to search defendant, and defendant consented. Huber did not find any other drugs. Huber asked defendant what he and the other people were doing inside the residence before the officers arrived. When defendant hesitated, Huber told him that he did not have to answer that question, and defendant said that he would rather not answer.

Before trial, defendant moved to suppress evidence of the methamphetamine residue that Huber found inside the tin foil. Among other grounds for suppression,² defendant asserted that, by opening the folded tin foil, the officer exceeded the scope of any consent that defendant had manifested by handing the foil to him. The trial court denied the motion. Regarding the scope of consent issue, the court said:

"It is not clear to me if [defendant] consented to the opening of the foil, but he did consent to Officer Huber looking at it. Looking at it, at least in the context of a folded piece of foil, reasonably implies looking in it. If that were not enough, I think Officer Huber's training and experience suggests that it may contain a controlled substance.

"He does look in the foil and determines that there is a residue of a controlled substance, or a burnt controlled substance inside of the aluminum foil and he makes some further inquiry. He asks if it is methamphetamine and eventually that is admitted. * * *

"* * * * *

"* * * Essentially, everything that was obtained was obtained in the course of a mere encounter or was obtained through consent. Therefore, the motion to suppress is denied."

Evidence that Huber opened the tin foil and found the methamphetamine residue inside, and defendant's statements after that discovery was made, were admitted in the ensuing stipulated facts trial.

Consent to a search is a recognized exception to the warrant requirement of both the state and federal constitutions. State v. Weaver, 319 Or. 212, 219, 874 P.2d 1322 (1994) (discussing consent exception to the warrant requirement under Article I, section 9); see also Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (same under the Fourth Amendment). However, the scope of the permissible search is limited to the consent given. State v. Allen, 112 Or.App. 70, 74, 826 P.2d 127, rev. den., 314 Or. 176, 836 P.2d 1345 (1992). When the state relies on consent to support a search, it must prove by a preponderance of the evidence that officials complied with any limitations on the scope of the consent. State v. Paulson, 313 Or. 346, 351-52, 833 P.2d 1278 (1992). The scope of a person's consent does not turn on what the person subjectively intended. State v. Jacobsen, 142 Or.App. 341, 349, 922 P.2d 677 (1996). Rather, it turns on what a reasonable person would have intended. Arroyo-Sotelo, 131 Or.App. at 294-96, 884 P.2d 901. The specific request that the officer made, the stated object of the search, and the surrounding circumstances all bear on our determination of the scope of a person's consent. Id.

At the threshold, the state argues that we need not address whether the officer exceeded the scope of defendant's consent when he unfolded the tin foil. The state asserts that, in any event, the folded tin foil announced its contents and, therefore, the examination of those contents did not constitute a search.³

In State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986), the Supreme Court stated:

"Some containers, those that by their very nature announce their contents (such as by touch or smell) do not support a cognizable privacy interest under Article I, section 9. Transparent containers (such as clear plastic baggies or pill bottles) announce their contents. The contents of transparent containers are visible virtually to the same extent as if the contents had been discovered in `plain view,' outside the confines of any container. * * * No warrant is required for the opening and seizure of the contents of transparent containers or containers that otherwise announce their contents."

In State v. Herbert, 302 Or. 237, 242, 729 P.2d 547 (1986), the court elaborated:

"Some containers of illicit drugs may be 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. Examples of such unique containers might be balloons or tinfoil bindles."

(Emphasis added.) The state relies on Herbert and State v. McCrory, 84 Or.App. 390, 734 P.2d 359 (1987), for the proposition that "tin foil bindles are precisely the sort of containers that announce their contents[.]"

We disagree with that proposition; it confuses the inquiry whether probable cause to search existed with the issue whether a search occurred at all. "Probable cause" to conduct a warrantless search does not require certainty. State v. Collicott, 56 Or.App. 605, 608, 642 P.2d 1187, rev. den., 293 Or. 190, 648 P.2d 852 (1982). In general, probable cause to search exists when a reasonable person would believe it is more likely than not that the objects of a search will be found at the location to be searched. State v. Anspach, 298 Or. 375, 380, 692 P.2d 602 (1984). By contrast, the contents of opaque containers that "a...