State v. Jackson

• Decision Date: 15 February 1984
• Docket Number: Nos. 10-81-11077,s. 10-81-11077
• Citation: 677 P.2d 21,296 Or. 430
• Parties: STATE of Oregon, Respondent on review, v. Daryl Scott JACKSON, Petitioner on review. ; CA A24955, 10-81-02508; CA A24956; SC 29473. . *
• Court: Oregon Supreme Court

Page 21

677 P.2d 21

296 Or. 430

STATE of Oregon, Respondent on review, v. Daryl Scott JACKSON, Petitioner on review.

Nos. 10-81-11077; CA A24955, 10-81-02508; CA A24956; SC 29473.

Supreme Court of Oregon,

In Banc. ^*

Argued and Submitted July 6, 1983.

Decided Feb. 15, 1984.

Robert J. McCrea, Eugene, argued the cause for petitioner on review. With him on the petition and brief was Morrow, McCrea & Divita, P.C., Eugene.

Robert E. Barton, Asst. Atty. Gen., Salem, argued the cause for respondent on review. On the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

JONES, Justice.

The issue is whether the trial court should be reversed for ordering suppression of evidence obtained by a traffic officer's flashlight observation of the interior of a motor vehicle that he had stopped for a traffic infraction.

We quote from the trial court's findings:

"On the night of February 20, 1981, Defendant as the operator of a van entered upon East 11th Avenue from an alley between Mill and Ferry Streets in the City of Eugene, Oregon. East 11th Avenue is a one way street but no signing to that effect was posted for motorists coming onto it from that alley and Defendant turned the wrong way, discovered the error at the first intersection he came to and exited 11th Avenue at that point. Officer Tatum of the Eugene Police Department observed these movements and stopped Defendant's vehicle.

"Defendant's vehicle bore California plates and, upon request of the officer, Defendant displayed a valid California operator's license and valid California vehicle registration.

"The officer returned to his patrol unit and then resumed contact with Defendant.

" * * *

"For some reason the officer then proceeded from the driver's side around the front of the van to the passenger side, and a step or two beyond where he was then positioned beside the sliding door used for ingress and egress from the compartment of the van behind the driver's and passenger's seats. The officer flashed his light through the window at the sliding door and observed two beer cans which he thought might contain alcohol and thus be in violation of 'the open container' law.

"The location of these cans is in dispute. The officer testified they were on the console between the driver and passenger seats. The Defendant testified they were on a stool behind those seats. A more probing search would have been necessary to see them if they were where the officer recalled them being than would have been required had they been at the location described by the Defendant.

"The presence of the open beer cans motivated the officer to enter the vehicle whereupon he came upon other unrelated contraband." ¹ Eventually, defendant "was issued citations for the possession of less than an ounce and for open container."

The defendant later was indicted on felony charges of unlawful possession of controlled substances, i.e., LSD and cocaine, which were substances found by the officer when he searched in the van.

In the trial court, the defendant moved to suppress the evidence obtained from his vehicle on the ground that it was unlawfully obtained because:

"(1) The searches and seizures were performed without a warrant;

"(2) No probable cause existed;

"(3) No exigent circumstances existed;

"(4) There was no valid consent;

"(5) The searches and seizures were not otherwise lawful or justified."

He subjoined to his motion as authorities upon which he relied the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 9, of the Oregon Constitution.

On appeal, 62 Or.App. 7, 660 P.2d 183, the defendant contended that the officer had unlawfully detained defendant after all matters concerning the initial stop had been "satisfactorily processed" and that the officer "examined the interior of his vehicle visually during this detention." He cited to the trial court State v. Carter/Dawson, 287 Or. 479, 600 P.2d 873 (1979), and State v. Wight, 48 Or.App. 731, 617 P.2d 928 (1980), in support of that contention. Because the defendant prevailed at the trial court level on this first issue, his other contentions raised at trial were not asserted in this appeal. ²

The trial court, having made the findings quoted above, came to the following conclusions:

"It is the opinion and conclusion of this Court that the officer having made the stop for driving the wrong way on a one way street and having concluded that defendant was the lawful owner and operator of the vehicle had, at that point, nothing before him to arouse a reasonable suspicion that he should conduct further inquiry or inspection or examination of the contents of the vehicle. Nothing was before him to reasonably provoke his circling to the opposite side of the van and conducting a flashlight search into the interior spaces of the van from that or any vantage point.

"The officer testified he though he observed the Defendant bump or knock over the beer cans. This occurred before he saw beer cans in the vehicle. This Court discerns nothing in that testimony to suggest the movement was furtive, was done to conceal anything, was an effort to reach or conceal a weapon or was in any manner untoward or of a nature leading a person to suspect further investigation or search would be required.

"This Court concludes the principles applied in State v. Carter/Dawson control and that evidence was wrongfully seized and should therefore be suppressed. However, such of the evidence seized which is contraband must be destroyed rather than returned to the Defendant."

As mentioned, because the trial court found that the officer conducted an investigation beyond what the trial court concluded was permissible under State v. Carter- /Dawson, supra, the trial court did not find it necessary to resolve conflicts in the evidence that would be pertinent to other legal issues raised by defendant's motion to suppress.

The state appealed, contending that the trial court had misapplied the "rationale and holding" of Carter/Dawson. The state, therefore, asked the Court of Appeals to reverse the trial court's order of suppression and to remand the case to the trial court for resolution of the factual disputes presented by the evidence and for further consideration of the legality of the "search and seizure" of items inside the vehicle.

The defendant, in his brief in the Court of Appeals, defended the trial court's application of Carter/Dawson and contended that that case and State v. Wight, supra, established an "Oregon rule" not dependent upon Fourth Amendment law. The defendant argues that the officer's circling the front of the van and shining the flashlight into the passenger side window was an impermissibly intrusive invasion of his privacy, not necessitated by the traffic stop or by other exigent circumstances. The defendant claims that the officer began an investigation unrelated to the traffic stop without any articulable sensory perceptions to justify such action. The state urges that the central issue is the permissible "duration of a stop" for a minor traffic infraction.

The Court of Appeals adopted the state's argument by concluding that the extension of the time of the stop by that action of the officer was "de minimis." The Court of Appeals stated:

"Defendant's primary argument seems to be that anything that could be termed an 'investigation' unrelated to the offense for which defendant was stopped is unlawful under Carter/Dawson.3 Although we used the word 'investigation' in that opinion, we are not willing to extend Carter/Dawson to prohibit the officer's actions here. We agree with the state that ' * * * the holding of that case does not require a police officer to confine himself to the bare minimum of activities necessary to issue a traffic citation.' Therefore the evidence was improperly suppressed.

This brings us to a consideration of the decision in Carter/Dawson.

When Carter/Dawson was first argued before this court, the question of the intrusiveness of a police officer's behavior was at issue. Our concern for this issue caused us to order reargument of the case; however, both sides responded that the only issue before this court was the validity of the traffic stop itself. Consequently, the intrusiveness issue was not considered. In the present case, the validity of the traffic stop is not in dispute. To analyze the intrusiveness issue, we revisit the Court of Appeals decision in State v. Carter/Dawson, 34 Or.App. 21, 578 P.2d 790 (1978).

In Carter/Dawson, a police officer stopped a car for a speeding violation. After a cursory examination of licenses and a running of a "records check," the officer asked questions about the car's contents, attempted to elicit permission to look in the car and then observed marijuana and related paraphernalia. The Court of Appeals concluded that such an investigation after a negative records check was impermissibly intrusive. The court said:

"Two bodies of law are germane to what an officer may do after making a traffic stop in Oregon. One is constitutional. An officer may, constitutionally, search the person of the driver incident to custodial arrest, State v. Florance, [270 Or. 169, 527 P.2d 1202 (1974) ], but assuming State v. Krogness, 238 Or. 135, 388 P.2d 120 [1963], cert. den. 377 U.S. 992 [84 S.Ct. 1919, 12 L.Ed.2d 1045] (1964), is still good law, may not, constitutionally, search the interior of the vehicle based solely on a stop for a traffic offense.

"Moreover, constitutional law provides that a stop can be no more intrusive than necessarily required by the objective reason giving rise to the stop. State v. Evans, 16 Or.App. 189, 517 P.2d 1225, rev. den. (1974). ORS 131.615 appears to codify the constitutional limitation:

' * * *

'(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.

'(3) The inquiry shall be considered reasonable only if limited to...