State v. Gaither

• Decision Date: 30 October 1985
• Citation: 708 P.2d 646,76 Or.App. 201
• Parties: STATE of Oregon, Respondent, v. Harvey Glenn GAITHER, Appellant. C84-02-30761; CA A33448.
• Court: Oregon Court of Appeals

Page 646

708 P.2d 646

76 Or.App. 201

STATE of Oregon, Respondent, v. Harvey Glenn GAITHER, Appellant.

C84-02-30761; CA A33448.

Court of Appeals of Oregon, In Banc.

Argued and Submitted April 24, 1985.

Decided Oct. 30, 1985.

Sally L. Avera, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Linda J. DeVries, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James E. Mountain, Jr., Sol. Gen. and Dave Frohnmayer, Atty. Gen., Salem.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

NEWMAN, Judge.

Defendant appeals his conviction for possession of a controlled substance. ORS 475.992. He assigns as error the court's denial of his motion to suppress "all evidence which was the product of an illegal search" that the police made, including an aluminum foil "bindle" containing heroin. The state concedes that, if the search for the heroin was illegal, defendant's subsequent confession was also inadmissible. The court did not err in denying defendant's motion to suppress, and we affirm.

The court made no findings of historical fact, but they are not in dispute. ¹ Officer Sviler stopped defendant's car, because it had no front license plate and only one operative brake light. Defendant had no operator's license and told the officer his name was "Jimmy Gibson." Sviler recognized defendant and knew his real name. He called another officer, and they removed defendant from his car, arrested him for misuse of a driver's license ² and placed him in handcuffs. ³

Sviler knew that defendant had used drugs in the past. He asked defendant if he had any drugs or weapons on his person. Defendant said, "No." Sviler then asked defendant if he could search him. Defendant replied, "Yeah, go ahead. I don't have nothing on me." Sviler searched defendant and he found a small piece of folded tin foil in his right sock. Sviler asked defendant what was in the tin foil bindle, and he replied, "That ain't mine. You didn't find that on me." On the basis of his training and experience, Sviler was "sure" that the bindle contained heroin. Without obtaining a search warrant, he unfolded the tin foil and discovered a tarry substance which, from his training and experience, he believed to be heroin, particularly because of its appearance and odor.

The police then took defendant to jail. They gave him the Miranda warnings while he was in the back seat of the police car and interrogated him further. He made additional incriminating statements. The police conducted laboratory tests of the contents of the bindle without a warrant. The tests confirmed that the substance was heroin.

Defendant asserts that Article I, section 9, of the Oregon Constitution and the Fourth Amendment required the police to obtain a warrant to search his person, to seize the bindle, to open it and to test its contents. The state asserts that, because defendant consented to the search, the police did not need to obtain a search warrant for any purpose. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Douglas, 260 Or. 60, 68, 488 P.2d 1366 (1971).

Defendant first argues that his consent was not voluntary. The state must establish consent by "clear and convincing" evidence. State v. Kennedy, 290 Or. 493, 502, 624 P.2d 99 (1981). We are not bound by a trial judge's finding of consent if we find that the historical facts are insufficient to satisfy constitutional standards. State v. Warner, 284 Or. 147, 158, 585 P.2d 681 (1978). Under both constitutions, the proper test is whether the totality of the facts and circumstances show that consent was given by defendant's free will or was a result of coercion, express or implied. Schneckloth v. Bustamonte, supra, 412 U.S. at 226-227, 93 S.Ct. at 2047; State v. Flores, 280 Or. 273, 570 P.2d 965 (1977).

Defendant argues that, because he was in custody and the police did not give him Miranda warnings or advise him of his right to refuse to consent to a search, his consent was not voluntary. The fact of lawful custody does not render involuntary an otherwise voluntary consent. The failure of the police to give Miranda warnings and inform him of his right to refuse consent are only factors in determining voluntariness. Schneckloth v. Bustamonte, supra, 412 U.S. at 227, 93 S.Ct. at 2047; State v. Campbell, 43 Or.App. 979, 984, 607 P.2d 745 (1979).

There is no evidence that defendant's consent was obtained by illegal or coercive police conduct. The setting was not threatening. Defendant gave his consent after a brief discussion with Sviler on a public street in front of two or three people who had gathered to watch. There were no overt acts, threats of force, promises or indications of subtle forms of coercion. Defendant appears to have consented to the search in the belief that the police would not find incriminating evidence. Although defendant was under arrest, there was no indication that he was mentally deficient or unable to exercise a free choice. Accordingly, we find that his consent was voluntary.

Defendant also argues that the scope of his consent was not broad enough to allow the police to search him, to seize the bindle, to open it and to test its contents, which are separate constitutional events under the Oregon Constitution. See State v. Lowry, 295 Or. 337, 667 P.2d 996 (1983); State v. Herbert, 75 Or.App. 106, 705 P.2d 220 (1985). Each step must be justified by an exception to the warrant requirement, and "it is irrelevant whether a previous or subsequent step is within an exception." State v. Westlund, 75 Or.App. 43, 48, 705 P.2d 208 (1985). "When police rely on consent as a basis of a search, they have no more authority to search than they are given by consent. Thus, a consent to search may be confined in scope to specified items, restricted to certain areas or limited in purpose or time." State v. Lerch, 63 Or.App. 707, 712, 666 P.2d 840 (1983), aff'd 296 Or. 377, 677 P.2d 678 (1984); see also United States v. Dichiarinte, 445 F.2d 126 (7th...