State v. Herbert

• Decision Date: 11 October 1985
• Parties: STATE of Oregon, Appellant, v. Jerald C. HERBERT, Respondent. 29153; CA A28263.
• Court: Oregon Court of Appeals

Page 220

705 P.2d 220

75 Or.App. 106

STATE of Oregon, Appellant, v. Jerald C. HERBERT, Respondent.

29153; CA A28263.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted Oct. 24, 1983.

Resubmitted in banc March 6, 1985.

Decided Aug. 21, 1985.

Reconsideration Denied Oct. 11, 1985.

Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for respondent. With him on brief was Gary D. Babcock, Public Defender, Salem.

NEWMAN, Judge.

Defendant was indicted for possession of a controlled substance. ORS 475.992(4). The state appeals a pretrial order that granted defendant's motion to suppress property seized from defendant just after his arrest. ORS 138.060(3). We affirm in part and reverse in part.

Two officers of the St. Helens Police Department saw defendant in a store parking lot. Officer Yokum knew that there was an outstanding warrant for defendant's arrest for failure to appear on a charge of driving while suspended. Yokum approached defendant and arrested him. Defendant told Yokum that he wanted to get some identification from the truck in which he had come to the store. The truck belonged to a friend. Defendant walked to the passenger side of the truck, got into the truck and sat down in the passenger seat. Yokum stood nearby. The friend stood on the other side of the truck. Defendant reached into the bib pocket of his overalls, pulled out a fold of paper and put it on the shelf underneath the glove compartment. The "paperfold" was opaque and measured one inch by one-half inch. Its edges were folded in. Yokum took it from the shelf and asked defendant, "What is this?" Defendant answered, "What is what?" Yokum showed it to defendant, but he did not respond. Yokum seized the paperfold. The officers then took defendant to jail. The second officer testified that, after defendant was jailed, the officer opened the paperfold at the police station and made a "field test" of its contents. That test revealed "the presence of cocaine." The police then sent the paperfold for analysis to the State Police crime laboratory, which identified its contents as cocaine.

Yokum did not know defendant to be a drug user or dealer and, when he arrested him for failure to appear, he did not suspect that defendant was carrying contraband. Yokum testified, however, that he had seized the paperfold because he believed that it contained cocaine, that he had received training at the police academy in recognizing cocaine and its packaging, that he had seen similar paperfolds two or three times, that on each occasion they had contained cocaine and that they are commonly used to store cocaine. Yokum testified that, from his experience, he knew that persons who have just been arrested will sometimes attempt to get rid of contraband in their possession. Yokum thought that defendant was trying to distract him with one hand when he put the paperfold on the shelf with his other hand and that he appeared to feign ignorance when the officer asked him about it.

The 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 court stated:

"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 more circumstances present than those here to support probable cause to seize."

The court suppressed the paperfold and its contents and all information or knowledge gained either directly or indirectly from the seizure.

A seizure and a search are separate constitutional events. We must consider the seizure of the paperfold separately from the subsequent searches of its contents. In its appeal, the state confined its brief to the issue of seizure of the paperfold. Moreover, the state did not contend below or on appeal that there was probable cause to arrest defendant for possession of a controlled substance or that the officer seized the paperfold or searched it incident to such an arrest. Because in this state's appeal it did not preserve these arguments, we do not consider them. See State v. Hickmann, 273 Or. 358, 540 P.2d 1406 (1975). The state only argues that there was probable cause to seize the paperfold and that the seizure was lawful, because the police were lawfully present, defendant voluntarily exposed the paperfold in the car and the police believed that it contained contraband.

The seizure of the paperfold was lawful. Probable cause to support a warrantless seizure under Article I, section 9, requires more than a suspicion, no matter how well warranted. It requires a reasonable belief that the paperfold contained contraband. See State v. Anspach, 298 Or. 375, 380, 692 P.2d 602 (1984). Although we are bound by the trial court's finding of historical facts, Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968), we are not bound by its constitutional conclusions. Yokum's experience and training, the shape of the paperfold, defendant's arrest and imminent incarceration, his return to his friend's truck and failure to get the identification he had told Yokum he sought, his furtive gestures, his evasive responses to Yokum's question about the paperfold and his placement of the paperfold in the truck gave Yokum probable cause, under Article I, section 9, to believe that the paperfold contained contraband. ¹ Moreover, defendant had exposed the paperfold to plain view when he placed it on the shelf under the glove compartment, and Yokum was lawfully present when he saw and seized the paperfold. We hold that the seizure of the paperfold was valid under Article I, section 9. State v. Johnson, 232 Or. 118, 374 P.2d 481 (1962); see also State v. Elkins, 245 Or. 279, 283, 422 P.2d 250 (1966). ² The seizure was also valid for the same reasons under the Fourth Amendment. Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982).

We must consider, however, the validity of the subsequent opening of the paperfold and the testing of its contents. As noted, the state did not assert that the police seized or searched the paperfold incident to an arrest of defendant for possession of a controlled substance, and we do not consider that position in this state's appeal. ³ Moreover, the seizure of the paperfold was of an object not related to defendant's arrest for failure to appear. Accordingly, this case falls squarely under State v. Lowry, 295 Or. 337, 667 P.2d 996 (1983), where the police seized an amber pill bottle that was not related to the reason for the defendant's arrest for driving under the influence of intoxicants, and the subsequent search of the pill bottle was not incident to that arrest. ⁴ The court examined the validity of the opening of the pill bottle and the testing of its contents.

In Lowry the defendant's automobile was stopped for a faulty headlight, a traffic infraction. The defendant was subsequently arrested for driving under the influence of intoxicants. After the arrest and while the defendant was handcuffed, an officer, without a warrant, seized from his person a small, transparent amber pill bottle containing a white powder, which the police later tested without a warrant and found to be cocaine. Lowry expressly omits the seizure as a basis for suppression, 295 Or. at 349, 667 P.2d 996, and accepts that, because the pill bottle could be seized for a limited time to determine by "tests" if its contents were contraband, its seizure was lawful. Lowry states that "testing is a form of search," 295 Or. at 345, 667 P.2d 996, and held that the evidence should have been suppressed, because the lawful seizure of the pill bottle did not justify the subsequent warrantless opening of the bottle and the testing of its contents.

The court stated that "effects" that are

"unrelated to the reason for the arrest may be seized if their nature as contraband is evident on sight or, if this determination requires tests of an unknown substance or opening of a closed container, to secure them for the least amount of time needed to obtain a warrant for this purpose upon a showing of probable cause that further search is justified. Because that was not done in this case, the search of the pill bottle and testing of its contents went beyond what is...