State v. Gilkey

• Decision Date: 24 January 2001
• Citation: 172 Or. App. 95,18 P.3d 402
• Parties: STATE of Oregon, Respondent, v. Patricia Ann GILKEY, Appellant. State of Oregon, Respondent, v. Jerald Todd White, Appellant.
• Court: Oregon Court of Appeals

18 P.3d 402

172 Or. App. 95

STATE of Oregon, Respondent, v. Patricia Ann GILKEY, Appellant.

State of Oregon, Respondent, v. Jerald Todd White, Appellant.

(98CR2114; 98CR2116; CA A105583 (Control); A105644)

Court of Appeals of Oregon.

Argued and Submitted October 31, 2000.

Decided January 24, 2001.

Steven W. Humber, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, State Public Defender.

Holly Ann Vance, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and WOLLHEIM, Judge, and CENICEROS, Senior Judge.

HASELTON, P.J.

Defendants¹ appeal from their respective judgments of conviction and sentences for possession of a controlled substance. ORS 475.992. Defendants assert that the trial court erred in denying their motions to suppress evidence obtained when police seized items from defendant White's person and then, without a warrant, opened and inspected the contents of one of the seized items, an opaque container. We conclude that the seizure of the items from White's person and the retention of those items was justified by officer safety concerns. However, we further conclude that the warrantless search of the opaque container was neither justified by officer safety concerns nor supported by probable cause coupled with exigent circumstances. Accordingly, we reverse and remand.

On August 8, 1998, a citizen informed the Coos Bay police that several people in a car at the Empire boat ramp in Coos Bay were taking turns drinking from a light bulb. Because light bulbs are commonly associated with methamphetamine use, Officer Craddock responded to the report and ultimately stopped a car that matched the informant's description a few blocks from the boat ramp.

After making the stop, Craddock approached the car and asked the three occupants, including defendants White and Gilkey, for identification. Craddock noticed that the third occupant exhibited signs of being under the influence of drugs, including rapid speech, constricted eyes, a whitish coating on her tongue, and eyelid and body tremors. A records check revealed an outstanding probation violation warrant for Gilkey, and Craddock arrested her pursuant to that warrant.

After arresting Gilkey, Craddock asked all of the occupants to get out of the car so he could conduct a "wingspan" search of the area where Gilkey had been sitting. At some point during the search of the car, Officer Foster, who had arrived as back-up, observed White turn away from the officers and slowly reach into his left front pants pocket. Foster, frightened that White could be reaching for a weapon, yelled to warn Craddock and then grabbed White's hand. Craddock then removed three objects from White's hand: a pocket knife, a new ChapStick container, and an older ChapStick container with a piece of silver tape on one end. Craddock immediately popped the top off the older ChapStick container. Inside, he found a bindle of methamphetamine. White was then arrested for possession of a controlled substance. Ultimately, defendants were charged with possession of a controlled substance in violation of ORS 475.992.

Defendants both filed pretrial motions to suppress, inter alia, the methamphetamine found in the old ChapStick container. Those motions each asserted, in part, that the search of the container was unlawful and, consequently, that "the seizure of any and all evidence obtained" as a result of the search, including the methamphetamine and "all oral derivative evidence," must be suppressed.

At the suppression hearing, Foster testified that defendant White's attempt to surreptitiously reach into the front pocket of his pants "frightened" him, because "the guy could have had a gun in there. He could have had a weapon of some kind." In addition, Foster expressed safety concerns regarding the ChapStick container itself: "It's been my experience [that ChapStick containers could hold] knives, razor blades, sticking items such as dirks. Sometimes I've found— I think, on one occasion I found a cuff key or something like that." He also testified that he had previously found controlled substances, including methamphetamine, in ChapStick tubes.

Craddock also testified. He said that he popped the top off of the old ChapStick container and inspected its contents because he "didn't know whether there was contraband or possibly weapons in it." He further testified that he, personally, had never found controlled substances in a ChapStick tube before, and acknowledged that a ChapStick container, like a film canister, could contain legitimate items, such as ChapStick, breath mints, or nothing at all. The trial court refused to suppress the evidence, holding that officer safety concerns justified seizing the ChapStick container and that there was probable cause to search its contents:

"Under the circumstances then existing, defendant's conduct gave rise to the officer's belief that defendant was armed and dangerous, and furthermore, defendant's conduct combined with the officer's experience provided probable cause to open the container for evidence of a crime [i.e., PCS]."

Defendants were convicted following a stipulated facts trial for possession of controlled substance and were each sentenced to 18 months' probation.

On appeal, defendants assign error to the trial court's refusal to suppress the evidence, including the bindle of methamphetamine, found as a result of the warrantless search of the older ChapStick tube. Particularly, defendants argue that that evidence was unlawfully obtained because: (1) the warrantless seizure of the container from White was unlawful; and (2) neither officer safety concerns nor probable cause justified the warrantless opening of the ChapStick tube after it had been seized by the police.²

We begin by addressing whether Foster and Craddock lawfully seized the container from White. Defendants assert that the seizure violated their constitutional right to freedom from unreasonable search and seizure³ and was without justification. We disagree.

Under the analysis set forth by the Supreme Court, the warrantless seizure of the items in defendant White's hand, including the old ChapStick tube, was lawful so long as that seizure was justified by officer safety concerns. State v. Bates, 304 Or. 519, 747 P.2d 991 (1987). In particular, an officer is permitted to take

"reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present." Id. at 524, 747 P.2d 991.

Defendants argue that, under that standard, the record "does not establish a genuine and reasonable fear justifying the intrusion into and seizure of the contents of White's pockets." The state responds by suggesting that, given the circumstances of the stop, "a reasonable officer could have concluded from defendant's furtive attempt to pull something out of his pocket that he possessed a weapon and that he was attempting to use it." We agree with the state.

As noted, White made a surreptitious and furtive movement, reaching into his pocket during the course of a drug-related stop that had already resulted in the arrest of one of the car's occupants for an outstanding probation violation. That movement did, in fact, "frighten" Foster, because "the guy could have had a gun in there. He could have had a weapon of some kind. * * * I didn't know." Under the totality of those "specific and articulable" circumstances, officer safety concerns fully justified the initial seizure of the items in White's hand. Bates, 304 Or. at 524, 747 P.2d 991.

The officers were similarly justified in retaining the old ChapStick container after Craddock seized it from White. See State v. Blevins, 142 Or.App. 237, 920 P.2d 1131 (1996),

rev. den. 327 Or. 521, 971 P.2d 408 (1998). Seizure of a closed container on officer safety grounds is valid only if there exists "reasonable suspicion that the object `might' contain a weapon." Id. at 244, 920 P.2d 1131. Such reasonable suspicion exists where: (1) the container has the physical capacity to conceal a weapon; and (2) "under the totality of the circumstances, there was a reasonable suspicion that it did contain a weapon." Id.

Blevins is exemplary. There, we upheld, on officer safety grounds, the seizure of a small (one inch by two inches) cylindrical container, because it could contain a weapon such as a needle or a razor. We noted that the seizure of the cylindrical container was valid because of the defendant's nervousness and furtive actions and because the officer testified that, "based on his training and experience, persons encountered in traffic stops use small items, such as razor blades or needles, as weapons." Id. at 245, 920 P.2d 1131. We held that the totality of circumstances justified the seizure of the container, and specifically noted:

"A reasonable suspicion that a container discovered during a pat down contains a weapon does not require certainty that it does. That would require clairvoyance and could not accommodate a reasonable belief that turned out to be wrong. What is involved is a belief that the object felt is capable of containing a weapon and that, based upon the circumstances of the encounter, there is a reasonable likelihood that it does. That is what the officer testified to here; no more is required." Id.

The same reasoning controls here. Foster testified that, in his experience as an officer, he had found weapons, including knives, razor blades, and "sticking items such as dirks," inside ChapStick containers. In addition, the circumstances of the stop—and particularly White's furtive attempt to reach into his pocket after...