State v. Hathaway

• Decision Date: 04 August 1993
• Citation: 852 P.2d 967,120 Or.App. 530
• Parties: STATE of Oregon, Appellant, v. Kenneth Daryl HATHAWAY, Respondent. CR91-121; CA A73390.
• Court: Oregon Court of Appeals

Page 967

852 P.2d 967

120 Or.App. 530

STATE of Oregon, Appellant, v. Kenneth Daryl HATHAWAY, Respondent.

CR91-121; CA A73390.

Court of Appeals of Oregon.

Argued and Submitted Dec. 30, 1992.

Decided May 19, 1993.

Reconsideration Denied Aug. 4, 1993.

Ann Kelley, Asst. Atty. Gen., Salem, argued the cause for appellant. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

David Degner, Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Sally L. Avera, Public Defender, Salem.

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

PER CURIAM.

This is a companion case to State v. Taylor, 116 Or.App. 647, 842 P.2d 460 (1992), mod 119 Or.App. 209, 850 P.2d 1118 (1993). The trial court adopted the findings of fact made by the trial court in State v. Taylor, supra, added additional findings, and granted defendant's motion to suppress under State v. Porter, 312 Or. 112, 817 P.2d 1306 (1991). In Taylor, we said that Porter did not control, because the search of a pillowcase was not based on a traffic stop, but on the officer's observations of the contents of the vehicle in the light of other information of which he was aware. We held that the officer had a reasonable suspicion that criminal activity had occurred, which escalated into probable cause as the result of the answers given by the occupants of the car.

Although in this case the evidentiary record differs as to whether the officer recognized the pillowcase as a pillowcase when he first saw it, that difference does not affect the result. As we held in Taylor:

"Even if the court could not make that inference [that when the officer first saw the pillowcase, he recognized it as a pillowcase], it is apparent from the description given by the officer that the pillowcase was some type of bag that contained objects in it that had jagged edges. In the light of that observation and the other information that he had before he asked what was in the pillowcase, he had reasonable suspicion that justified his asking more questions." 119 Or.App. at 213, 850 P.2d 1118.

The trial court should not have granted the motion to suppress.

WARREN, Presiding Judge, dissenting.

The evidentiary record in this case includes the entire record of its companion case, State v. Taylor, 116 Or.App. 647, 842 P.2d 460 (1992), mod 119 Or.App. 209, 850 P.2d 1118 (1993). It also includes additional testimony by the officer who stopped the vehicle in which defendant was a passenger:

"Q The blanket--tell me about the blanket?

"A The blanket was wrapped around the pillow case. Parts of the pillow case was [sic ] visible there. And the blanket didn't completely cover the pillow case, one corner basically of the pillow case was showing.

"Q What did you see of the pillow case that--

"A Had a design on it, just reminded me of a pillow case, like orange flowers fringed on it.

"Q Flower print. Okay. Could you tell actually it was a pillow case, could it have been a sheet?

"A Could have been anything.

"Q You didn't say conclusively that is a pillow case when you saw it?

"A No, I didn't." (Emphasis supplied.)

On cross-examination, the officer testified:

"Q You didn't know it was a pillow case until you actually got it there?

"A Correct.

"Q And...