State v. Jackson

• Decision Date: 04 June 1986
• Citation: 719 P.2d 1312,79 Or.App. 631
• Parties: STATE of Oregon, Appellant, v. Daryl Scott JACKSON, Respondent. 10-81-11077, 10-81-02508; CA A34461.
• Court: Oregon Court of Appeals

Page 1312

719 P.2d 1312

79 Or.App. 631

STATE of Oregon, Appellant, v. Daryl Scott JACKSON, Respondent.

10-81-11077, 10-81-02508; CA A34461.

Court of Appeals of Oregon.

Argued and Submitted June 28, 1985.

Decided June 4, 1986.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause and filed the brief for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Robert J. McCrea, Eugene, argued the cause and filed the brief for respondent.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ. WARDEN, Judge.

This is the second time that the state has appealed the suppression of evidence discovered during a search of defendant's van after he had been stopped at night for a traffic violation. Originally, the trial judge found that defendant had made a wrong turn on a one-way street and entered the following findings:

"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.

" * * *

"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 judge concluded that the search was illegal under the principles stated in our opinion in State v. Carter/Dawson, 34 Or.App. 21, 578 P.2d 790 (1978). We reversed. State v. Jackson, 62 Or.App. 7, 660 P.2d 183 (1983). The Supreme Court affirmed our reversal and remanded, State v. Jackson, 296 Or. 430, 677 P.2d 21 (1984), holding:

"We have determined that the officer was validly on the passenger side of the van. We cannot conclude one way or the other that his observation of the beer cans made it 'immediately apparent' that a violation of law had occurred. * * *

" * * *

"As we interpret the record, the trial judge recognized the intrusiveness issue, but never made relevant findings of fact on that issue because he felt that the act of the officer looking through the window of the right side of the van violated the Court of Appeals decision in Carter/Dawson.

" * * *

"We believe the record is capable of different interpretations whether an open container violation was 'immediately apparent.' If the trial court makes findings of fact that justify a conclusion that a violation of the law was 'immediately apparent,' the officer's subsequent search and seizure of evidence must be evaluated in light of the defendant's other listed unresolved contentions." 296 Or. at 439, 677 P.2d 21.

On remand, the judge issued a nine-page opinion and order in which he reassessed the issue of whether the officer's observation of the beer cans was the result of an unreasonably intrusive search. He concluded that it was. In so doing, he exceeded the scope of the remand. This is not a case in which new evidence was taken on remand. The trial judge considered the transcript of testimony from the first hearing and the exhibits that had been received at that time. Implicit in the original findings is that the officer's vantage point and the use of a flashlight allowed the officer to see something that was in "plain view." ¹ That finding is the law of the case and not subject to reconsideration on remand.

The judge recognized that he might be precluded from reassessing the issue of "plain view" ² and, therefore, considered whether a violation was "immediately apparent" as directed by the Supreme Court. He concluded that the appearance of the beer cans gave the officer a "well warranted" suspicion that they were full or partially full and that on the basis of that suspicion the officer had a right to enter the van. Once inside the van, he was able to see a marijuana roach, as well as a grinder which contained a white powdery or granular substance, in plain view. On the basis of evidence of the officer's experience, the judge found that there was a well-warranted suspicion that the grinder held a controlled substance.

However, although the judge denied the motion to suppress the evidence of the marijuana cigarette and the grinder, he suppressed the controlled substance found in a pouch. He reasoned that...