State v. Herbert

• Decision Date: 20 November 1986
• Citation: 729 P.2d 547,302 Or. 237
• Parties: STATE of Oregon, Respondent on Review, v. Jerald C. HERBERT, Petitioner on Review. TC 29153; CA A28263; SC S32163.
• Court: Oregon Supreme Court

Page 547

729 P.2d 547

302 Or. 237

STATE of Oregon, Respondent on Review, v. Jerald C. HERBERT, Petitioner on Review.

TC 29153; CA A28263; SC S32163.

Supreme Court of Oregon.

Argued and Submitted Jan. 28, 1986.

Reassigned March 4, 1986.

Decided Nov. 20, 1986.

Ernest E. Estes, Deputy Public Defender, Salem, argued the cause and filed the petition for petitioner on review. With him on the petition and additional memoranda was Gary D. Babcock, Public Defender for Oregon, Salem.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.

CARSON, Justice.

The issue in this case is whether the arresting police officer lawfully seized a paperfold ¹ that he had observed defendant remove from his clothing following defendant's arrest for a crime unrelated to criminal activity in drugs.

While crossing a store parking lot, defendant was arrested on an outstanding warrant for failure to appear on a charge of Driving While Suspended. Defendant told the arresting officer that he wanted to get some identification from the truck in which he had been riding. Defendant walked to the truck. The officer followed him. Defendant got into the truck, leaving the door open, sat down and reached into the bib pocket of his overalls. He pulled out a paperfold and, while attempting to distract the officer with his other hand, placed the paperfold on an open shelf beneath the glove compartment in the truck.

The officer testified that, based upon his training and experience in the identification of controlled substances and the circumstances surrounding defendant's removal of the paperfold from his clothing, he believed that the opaque paperfold contained contraband. He reached through the open door and picked up the paperfold, asking defendant, "What is this?" Defendant answered, "What is what?" The officer showed the paperfold to defendant, but defendant gave no response.

The officer took defendant to jail. At the police station, the officer opened the paperfold and field tested the contents. The test revealed "the presence of cocaine." The officer then sent the paperfold to the State Crime Laboratory for chemical analysis, which confirmed the contents as cocaine. No search warrant was obtained.

Defendant was indicted for Possession of a Controlled Substance. ORS 475.992(4). He filed a motion to suppress the evidence of cocaine on the grounds that the search and seizure of the paperfold were: (1) warrantless; (2) without consent; (3) not incident to arrest; and (4) not based upon probable cause. The state argued that the limited search of the truck and the seizure of the paperfold were valid under the doctrines of search incident to arrest and plain view, citing State v. Elkins, 245 Or. 279, 422 P.2d 250 (1966), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The trial court suppressed the evidence of the paperfold and its contents, concluding that the officer did not have probable cause to believe that the paperfold contained contraband, and thus that a crime was being committed in his presence, which would justify the seizure.

The state appealed the pre-trial suppression order, pursuant to ORS 138.060(3). The only issue that the state appealed was whether the police officer had probable cause lawfully to seize the paperfold from the truck in which defendant was sitting.

The Court of Appeals considered the case in banc. The majority concluded that the officer had probable cause to make a warrantless seizure of the paperfold under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. State v. Herbert, 75 Or.App. 106, 705 P.2d 220 (1985). The majority reversed the suppression order as to the paperfold and went on to consider the validity of the subsequent opening of the paperfold and the testing of its contents. The majority concluded that these subsequent events must be analyzed separately, and that because there was neither practical necessity nor exigent circumstances, a search warrant was required, citing State v. Lowry, 295 Or. 337, 667 P.2d 996 (1983). The majority affirmed the suppression of the evidence of the contents of the paperfold under Article I, section 9. Three separate opinions were also filed in that court.

Defendant petitioned for review on two grounds: (1) that the Court of Appeals did not give proper deference to the trial court's findings of historical fact or to the inferences flowing thereform; and (2) that the Court of Appeals' majority misapplied this court's decision in State v. Lowry, supra.

PROBABLE CAUSE

Appellate courts are bound by the trial court's findings of historical fact, but not by the trial court's legal conclusions. Krummacher v. Gierloff, 290 Or. 867, 869, 627 P.2d 458 (1981); Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968). The determination of probable cause is a legal, not a factual, conclusion. Probable cause does not require certainty.

The trial court made the following findings of fact:

"1. The officer had the normal training received by police officers for the detection of and identification of controlled substances.

"2. The paper fold was distinguishable from ordinary paper only by its folded shape, not by the kind of quality of paper that it was.

"3. The paper was opaque.

"4. The defendant was neither a known user or trafficker in the illicit business of controlled substances.

"5. Defendant was being arrested on a nonrelated, i.e. not related to the drug charge, traffic matter.

"6. The defendant removed the paper fold from his bib overalls front pocket in the presence of the officer and in a manner that seemed to be furtive to the officer.

"7. The officer was suspicious that the paper fold contained cocaine."

The trial court concluded:

" * * * In this case, before me, there is no bottle through which the contents can be seen, nor is there any suspicion of the presence of a controlled substance.

"It was possible that the paper fold might contain cocaine. The officer had seen it before in a paper fold and had been taught to suspect that cocaine was transported in that manner. A possibility is not enough. * * * The paper fold could have just as possibly held small, unsnelled fishhooks, pieces of a calculator which had been disassembled and were being taken to a repairman, a broken necklace or a chain that girls wear that was being taken to the jeweler, or a number of other things, such as radish seeds.

"In State v. Alpert, [52 Or.App. 815, 629 P.2d 878 (1981) ], cocaine in a bank envelope was suppressed as well as cocaine in a ladies compact. It seems to me that if the container is not transparent/translucent, or of such an odd nature (balloon with contents in shirt pocket), or a pliable container which lends itself to palpable discernment, there will have to be morecircumstances present than those here to support probable cause to seize."

Defendant argues that the trial court's statement that the paperfold could just as possibly have been used to store or transport small items, such as unsnelled fishhooks, jewelry or radish seeds, establishes that an opaque paperfold is not such a unique container of illicit drugs that it, without more, provides probable cause to believe that it contains a controlled substance. Some containers of illicit drugs may be so uniquely associated with the storage and transportation of controlled substances that their unique packaging alone might provide, to an officer with training and experience in the area of drug detection, probable cause to believe they contain a controlled substance. Examples of such unique containers might be balloons or tinfoil bindles. See, e.g., Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (officer had probable cause to believe a tied-off balloon contained an illicit substance); State v. Lowry, supra, 295 Or. at 359, 667 P.2d 996 (Jones, J., specially concurring). However, we are not here required to decide whether an opaque paperfold is such a unique container of illicit drugs. In addition to...