State v. Groda

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Respondent, v. Ronny GRODA, Petitioner. ; SC 25760.
• Citation: 591 P.2d 1354,285 Or. 321
• Docket Number: No. C76-12-17014,C76-12-17014
• Court: Oregon Supreme Court
• Decision Date: 27 February 1979

Page 1354

591 P.2d 1354

285 Or. 321

STATE of Oregon, Respondent, v.Ronny GRODA, Petitioner.

No. C76-12-17014; SC 25760.

Supreme Court of Oregon, In Banc.

Argued and Submitted Oct. 10, 1978.

Decided Feb. 27, 1979.

Thomas L. Mason, Portland, argued the cause and filed the briefs for petitioner.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent.On the brief were James A. Redden, Atty. Gen., Al J. Laue, Sol.Gen., and John W. Burgess, Asst. Atty. Gen., Salem.

DENECKE, Chief Justice.

This is another of the search and seizure caseswe have taken on review.State v. Groda, 32 Or.App. 287, 573 P.2d 1269(1978);State v. Greene, 30 Or.App. 1019, 568 P.2d 716(1977);State v. Fondren, 30 Or.App. 1045, 568 P.2d 721(1977);State v. Downes, 31 Or.App. 419, 571 P.2d 914(1977).

In addition to the automobile search problem we also granted review because of the issue of probable cause to search the defendant's person.

An undercover officer learned that he could get amphetamines at a house in Portland.Police officers entered the house and arrested four persons for drug offenses, including activity in amphetamines.Thousands of amphetamines were found in the house.While they were there the telephone rang, officer Huff answered, and the caller asked if Richard were there.The officer said he was busy and to call back.The caller said, "(T)his is Ronny Tell him they're done and I'm on my way over."Officer Huff related the conversation to the other officers and they decided to wait for Ronny, who they believed would arrive with amphetamines.

After the telephone call, another man entered the house and he was arrested because of an outstanding warrant.Then, a second person entered; he was searched and was found to have amphetamines on his person.He was arrested.About an hour and a half after the telephone call the defendant drove up, parked and approached the house.He identified himself as Ronny to a plain clothes officer, Officer Houck and asked Houck if she was the one waiting for the amphetamines.He went into the house and officer Houck told the officers inside that this was Ronny and he had not been searched and the officers inside searched him.In his hand he had a notebook and a small hand calculator.In his pockets he had car keys and several thousand dollars.The searchers found no drugs.An officer took the defendant's car keys and opened the trunk of defendant's car.Inside was an unlocked briefcase which the officer searched either while the briefcase remained in the trunk or immediately after he removed it.He found the drugs in the briefcase.

The defendant filed a motion to suppress, and after a hearing the trial court denied the motion both as to the evidence found by a search of defendant's person and by a search of the briefcase in the defendant's car trunk.The Court of Appeals affirmed, relying upon its decisions in State v. Greene, supra, 30 Or.App. 1019, 568 P.2d 716;andState v. Downes, supra, 31 Or.App. 419, 571 P.2d 914.

The defendant contends there was no probable cause to search his person.State v. Gressel, 276 Or. 333, 337, 554 P.2d 1014(1976).He argues that the majority of the Court of Appeals erred in concluding that the officers had probable cause to search him because the court erroneously assumed that the searching officers had all the information that Officer Houck learned from defendant as he came to the house.Officer Houck was the plain clothes officer who met defendant at the entrance to the house.There was no evidence that Officer Houck communicated to the searching officers that defendant asked her if she were the one waiting for the marijuana.

We are of the opinion that the rule announced by the Court of Appeals in State v. Mickelson, 18 Or.App. 647, 650-651, 526 P.2d 583(1974), is the proper rule for determining whether a searching officer has probable cause.We understand that rule to be that the searching officer personally must have information which constitutes probable cause, or the searching officer must be directed to make the search by an officer who personally has that knowledge.It is sufficient if the officer making the search on his own knowledge has secured the knowledge from another officer.

The contention of the defendant that there was no probable cause to search his person needs dissection.In State v. Gressel, 276 Or. 333, 337, 554 P.2d 1014(1976), we found there was no probable cause to search the defendant's person.Therefore, we did not have to determine whether the police could search the person if the only basis was that they had probable cause to believe he had evidence of a crime on his person.

Admittedly, in this case the officers did more than "stop and frisk"the defendant.The officers "took"the defendant into the kitchen, advised him of his rights, "patted him down," and took his money and car keys from his pockets.At the time the defendant was searched, he had not been told that he was under arrest.At some time, probably after the drugs were found in the briefcase, the defendant was formally arrested for the purpose of "charging him with an offense."

We conclude that when the defendant was searched he was "arrested" as that word is defined in ORS 133.005(1), which provides:

" 'Arrest' means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging him with an offense.A 'stop' as authorized under ORS 131.605 to 131.625 is not an arrest."

We consider that when the officers searched the defendant, they placed him "under actual * * * restraint."This was the conclusion we reached in State v. Krogness, 238 Or. 135, 146-147, 388 P.2d 120, 126, Cert. den. 377 U.S. 992, 84 S.Ct. 1919, 12 L.Ed.2d 1045(1964):

" * * * As a practical matter, it is difficult to explain how the police can search an individual without arresting him, since any substantial detention without his consent would fit the definition of an arrest found in such criminal cases as State v. Christensen, 151 Or. 529, 51 P.2d 835, supra, and such civil cases as Lukas v. J. C. Penney Co., 233 Or. 345, 378 P.2d 717(1963). * * * ."

A search of a person without a warrant is permissible as an incident to arrest and the search of the defendant was valid for this reason.The reason a search without a warrant is permissible as an incident to arrest is to protect the officer and to avoid the destruction or disappearance of evidence.Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685(1969);State v. Chinn, 231 Or. 259, 267, 373 P.2d 392(1962).These reasons are applicable in the search of the defendant in this case.

In order to arrest a person without a warrant, the officer must have probable cause to believe that a crime has been or is being committed by the arrested person.(In this casewe do not need to amplify on the nature of the crime.)In the present case the officers had to have probable cause to believe that the defendant was engaging in a crime encompassing the possession of drugs.

We are of the opinion that the officers searching defendant personally had information apart from that possessed by Officer Houck and not communicated to the other officers, that provided probable cause to arrest or seize the defendant.Defendant's telephone call in which he stated, "they are done and I am on my way over," stated in a conversation to a person in a house in which amphetamines were found in great quantity would most likely mean to an officer experienced in the drug traffic that amphetamines were cooked and the caller was bringing them to the house.The officers already had sufficient probable cause to arrest the people in the house for activity in drugs.One subsequent visitor to the house brought amphetamines.The defendant had in his hands a small calculator and notebook which, according to the officers, are common tools of the amphetamine trade.

As previously related, after the search of defendant's person, the officers seized defendant's car, searched the trunk, opened and searched a closed briefcase seized in the trunk, and found the drugs.We will assume, without deciding, that the officers had probable cause and there were exigent circumstances to justify the officers' seizing and searching the car pursuant to the principle of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 43, 39 A.L.R. 790(1925), andChambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419(1970).If the officers had this power, the defendant does not contest that the officers could seize, as distinguished from search, the briefcase.We hold, however, that the officers could not constitutionally search the briefcase without a warrant.We rely on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538(1977), for our decision.

In State v. Downes, 285 Or. 369, 591 P.2d 1352, decided this date, we discussed Chadwick as follows:

"In Chadwick, narcotic agents had probable cause to believe a locked footlocker shipped to Boston by rail contained marijuana.The agents observed the defendant claim the footlocker in Boston and have it carried to the trunk of a waiting car.Before the car could be started or the trunk closed, the agents arrested defendant and the others with him.The agents took the footlocker to the Federal Building.About an hour and one-half after the footlocker was brought into the building the agents opened it and found marijuana.No warrant was obtained authorizing this search.

"A majority of seven, in an opinion written by the Chief Justice, held that there being no exigent circumstances, the warrantless search could not be upheld.The government argued that the rationale of the automobile search cases demonstrates the validity of this search.The majority acknowledged that in the automobile search casesthe Court sustained warrantless searches:

" ' (I)n cases in which the possibilities of the vehicle's being removed or...