State v. Gilbert

• Decision Date: 29 March 1976
• Citation: 547 P.2d 632,24 Or.App. 907
• Parties: STATE of Oregon, Appellant, v. Charles Edward GILBERT, Respondent.
• Court: Oregon Court of Appeals

Page 632

547 P.2d 632

24 Or.App. 907

STATE of Oregon, Appellant, v. Charles Edward GILBERT, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Feb. 17, 1976.

Decided March 29, 1976.

Thomas H. Denney, 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 LANGTRY and THORNTON, JJ.

THORNTON, Judge.

Defendant was charged by information with criminal activity in drugs, in violation of ORS 167.207.

Prior to trial defendant moved to suppress the drugs (Ritalin tablets) taken from defendant's person on the ground that they were unlawfully seized. The trial judge allowed defendant's motion

The state appeals.

The essential facts are as follows: About 7:45 p.m. on August 15, 1975, Officer Gearheart of the Portland Police Bureau received a telephone call from an informant advising him that defendant was standing in a doorway north of 3975 N. Mississippi Avenue and was in possession of a quantity of Ritalin in a nonprescription bottle.

The officer testified that he did not attempt to get a search warrant because he knew from experience that people involved in the drug traffic are extremely mobile, and that in the time it would take to obtain a warrant the suspect was likely to leave the scene or dispose of the drugs in his possession, or both. Accordingly, the officer went to the described location where he encountered the defendant and another person, whom the informant had also described to him. The officer identified himself, patted them down to insure that they were unarmed, advised them of their constitutional rights, informed defendant why he intended to search him and proceeded to do so. The officer found a small brown pharmaceutical bottle in one of defendant's pockets with the name 'Lilly' printed on the top. He opened the bottle and found it contained eight pinkish or peach-colored tablets, each of which bore the name 'Ciba' and the number '34' on one side. He recognized them as 'Ritalin' tablets and seized them.

The officer testified that he believed the informant to be reliable because he had on two previous occasions purchased drugs under police directions, and on one other occasion had furnished information which had led to the seizure of a quantity of heroin and the arrest of two people.

The trial court ruled that as a matter of law the officer did not have probable cause to search defendant's person because one can possess Ritalin lawfully if one has a prescription for the drug, and since the officer had not been specifically informed prior to the search that defendant did not have a prescription to possess the drug the seizure was unlawful.

The state contends that in establishing probable cause that a crime has been committed, it is only necessary to show that the apparent facts were such as to cause a reasonable man to conclude that the offense charged was committed, citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and related authorities including State v. Keith, 2 Or.App. 133, 465 P.2d 724, Sup.Ct. Review denied (1970).

Defendant argues that the trial judge's ruling was entirely correct because the police did not have probable cause to believe that a crime was being committed from either (a) the information received from the informant or (b) the alleged fact that defendant was in possession of a prescription drug in a nonlabeled prescription container.

Defendant does not challenge the reliability of the unnamed informant nor does he contend...