State v. Kruchek

• Decision Date: 28 October 1998
• Citation: 156 Or.App. 617,969 P.2d 386
• Parties: STATE of Oregon, Respondent, v. William D. KRUCHEK, Appellant. 95-12-39452; CA A92706. . *
• Court: Oregon Court of Appeals

Page 386

969 P.2d 386

156 Or.App. 617

STATE of Oregon, Respondent, v. William D. KRUCHEK, Appellant.

95-12-39452; CA A92706.

Court of Appeals of Oregon, In Banc. ^*

Argued and Submitted Dec. 23, 1997.

Resubmitted En Banc June 10, 1998.

Decided Oct. 28, 1998.

Peter Gartlan, Deputy Public Defender, argued the cause for appellant. On the briefs were Sally L. Avera, Public Defender, and Eric M. Cumfer, Deputy Public Defender.

Kaye E. Sunderland, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

ARMSTRONG, Judge.

Defendant appeals his conviction for possession of a controlled substance, contending that the trial court erred when it denied his motion to suppress evidence of marijuana found in a plastic cooler. The trial court ruled that, because an odor of marijuana had emanated from the cooler,

"the contents of [the] cooler * * * [had announced] themselves to the officer. * * * [Hence,] defendant's privacy interests were not invaded when the officer opened the cooler."

The trial court apparently based its ruling on State v. Owens, 302 Or. 196, 729 P.2d 524 (1986), in which the Supreme Court held that "when there is probable cause to believe that a lawfully seized transparent container contains a controlled substance, opening the container, removing a modest quantity of its contents and subjecting it to chemical analysis for the sole purpose of confirming that it is a controlled substance, is not a 'search' or 'seizure' under the Oregon Constitution."

Id. at 207, 729 P.2d 524 (emphasis added). We conclude that Owens does not apply to this case and, accordingly, reverse the trial court.

The operative facts are undisputed. Portland Police Officer Gunderson parked his patrol car to watch an apartment for drug activity. He saw defendant's van pull up and park outside the apartment but did not see anyone get out of the van. He then watched the van pull away from its parking spot and make an unsignaled left turn. Gunderson pulled out behind the van, turned on his overhead lights and stopped defendant for the traffic infraction.

Gunderson approached the van and asked defendant for his driver's license, registration and proof of insurance. Defendant could not produce proof of insurance, so Gunderson gave him a traffic citation for driving uninsured. See ORS 806.010. In accordance with department policy, Gunderson then impounded the van. ¹ After impounding the van and in anticipation of its being towed, Gunderson began making an inventory of its contents. At the hearing on the motion to suppress, he testified that his intention was

"to go through the van, to make note of any weapons that [might] be present, perhaps use [sic] those for safekeeping so that a tow driver is not [h]armed by them. It is also to locate any valuables on behalf of the person who owns the van so that they are accounted for and noted in a police report in case there were to be some type of a problem at the time the van was picked up."

While inside the van, Gunderson noticed a strong odor of freshly cut marijuana. He concluded that the odor came from a small, plastic cooler located at the back of the van. He opened the cooler and found a large amount of marijuana, a scale and an automatic timer.

Defendant moved to suppress the evidence of the contents of the cooler, claiming that Gunderson should not have opened the cooler without first obtaining a warrant. The state responded that the warrantless search was valid, either because the automobile exception to the warrant requirement applied or because, under Owens, opening the cooler was not a "search" subject to the warrant requirement. The trial court concluded that the automobile exception did not apply but agreed with the state on its second theory. Defendant then agreed to a stipulated facts trial and was found guilty of possession of a controlled substance.

As a preliminary matter, we note that in Owens the Supreme Court held that, when there is probable cause to believe that a lawfully seized transparent container contains a controlled substance, opening the container for the limited purpose of confirming that belief is not a search or seizure of the container's contents under the Oregon Constitution, because opening the container does not result in any further intrusion into the owner's privacy or possessory interests. It follows from that holding that, before the police can open such a container, they must first have lawfully seized it as evidence of a crime. An inventory such as the one that took place in this case is not a search nor a seizure--rather, it is a limited administrative act designed to protect a person's property while in police custody. See, e.g., State v. Bean, 150 Or.App. 223, 229, 946 P.2d 292 (1997), rev. den. 327 Or. 448, 966 P.2d 222 (1998).

The fact that an officer has authority to conduct an inventory involving a closed container does not mean that the officer has lawfully seized the container, as required under Owens. If, in the course of an inventory, an officer develops probable cause to believe that a closed container contains a controlled substance, the officer cannot seize the container as evidence of a crime without first obtaining a warrant or establishing that an exception to the warrant requirement permits the seizure without a warrant.

In this case, defendant did not argue to the trial court or to us that the state had failed to establish a lawful basis to seize the cooler as evidence of a crime. For that reason, we must assume that the state met that requirement. It is important to recognize, however, that Owens did not dispense with the requirement that the container be lawfully seized as evidence of a crime and not merely be accessible to the police in an inventory. With that in mind, we turn to whether the officer violated Article I, section 9, by opening the cooler without first obtaining a warrant.

The trial court applied the rationale first set forth in Owens to the facts of this case and concluded that, even though the officer had opened the cooler to verify the presence of marijuana, the odor of which exuded from the chest, the opening of the cooler was not a search under Article I, section 9, because "the contents of [the] cooler * * * were announcing themselves to the officer. * * * [D]efendant's privacy interests were not invaded when the officer opened the cooler." That conclusion was incorrect.

The cooler in defendant's vehicle was an opaque container that could have contained any number of items, legal or illegal, and that happened to contain marijuana among its contents. The fact that the officer could smell marijuana in the cooler cannot, by itself, defeat the privacy interest that defendant had in the cooler. This is not a case of a paper bindle that, by its size and unique construction, could not have been anything other than a packet of drugs. See State v. McCrory, 84 Or.App. 390, 734 P.2d 359 (1987). It is not a case of a transparent container through which contraband and nothing else is readily viewed. See Owens, 302 Or. at 206, 729 P.2d 524; State v. Bechtold, 99 Or.App. 593, 783 P.2d 1008 (1989), rev. den. 309 Or. 521, 789 P.2d 1386 (1990). Nor is it a case in which an otherwise concealing container is labeled in a way that reveals its illegal contents. See State v. Ready, 148 Or.App. 149, 939 P.2d 117, rev. den. 326 Or. 68, 950 P.2d 892 (1997) (videotapes labeled "kid porn from Larry--movies then stills" announced contents as contraband). In such cases, the containers in question not only "announce" their contents but do so in a way that announces that contraband is their sole content. Owens and its progeny require that that be the case. If they did not, then opening the container would constitute a search, because it would open to scrutiny contents that were not then known. ² There is no basis, on this record, to conclude that the smell emanating from the chest announced that the chest contained marijuana and only marijuana. ³

If the trial court's conclusion were correct, then any time the police have reason to believe that a container (or, for that matter, a home) holds contraband, because they can either see the contraband or smell it, they would be justified in opening the container (or entering the home) to look for the contraband, on the ground that it has "announced" its presence. The law is clearly to the contrary. The rationale in Owens and its progeny is confined to situations in which there is no reason to believe that opening the container will result in any greater intrusion into a person's privacy than already has occurred through viewing or smelling the container. Accordingly, unless it is apparent that the container at issue holds nothing other than contraband, and that is not the case here, a warrant is required before the police lawfully can open it, unless an exception to the warrant requirement applies. ⁴

Although we conclude that the trial court erred in applying Owens to this case, the state offers alternate grounds for affirming the court's ruling. ⁵ First, it argues that the automobile exception to the warrant requirement applies to the search of the cooler. Second, it contends, for the first time on appeal, that the search was a valid search incident to arrest. Both arguments are unavailing.

The automobile exception provides that, " 'if police have probable cause to believe that a person's automobile, which is mobile when stopped by police, contains contraband or crime evidence' they may conduct a warrantless search for those items." State v. Burr, 136 Or.App. 140, 145, 901 P.2d 873, rev. den. 322 Or. 360, 907 P.2d 247 (1995) (quoting State v. Brown, 301 Or. 268, 276, 721 P.2d 1357 (1986)). The exception exists to prevent evidence of criminal activity from being moved quickly out of the locality in which the warrant must be sought. Burr, 136 Or.App. at 149, 901 P.2d 873....