State v. Lane

• Decision Date: 28 June 1995
• Citation: 135 Or.App. 233,898 P.2d 1358
• Parties: STATE of Oregon, Respondent, v. Eric Lynn LANE, Appellant. C9211-36992; CA A79604.
• Court: Oregon Court of Appeals

Page 1358

898 P.2d 1358

135 Or.App. 233

STATE of Oregon, Respondent, v. Eric Lynn LANE, Appellant.

C9211-36992; CA A79604.

Court of Appeals of Oregon.

Argued and Submitted July 27, 1994.

Decided June 28, 1995.

[135 Or.App. 234-A] David E. Groom, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Douglas F. Zier, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before DEITS, P.J., and RIGGS and HASELTON, JJ.

DEITS, Presiding Judge.

Defendant appeals his conviction for possession of a controlled substance and carrying a concealed weapon. ORS 475.992(4); ORS 166.240. He contends that the trial court erred in denying his motion to suppress evidence seized pursuant to a stop. We reverse and remand.

At 2:30 a.m. on November 12, 1992, Deputy Sheriff Staton observed a pickup truck make an abrupt turn into a Plaid Pantry parking lot. Staton parked across the street and watched the truck and its two occupants for approximately 20 minutes. After Deputy McCormick responded to Staton's request for assistance, Staton drove into the lot to contact the occupants, who were seated in the truck. Staton contacted the passenger, while McCormick contacted the driver, defendant. In response to Staton's questions, the passenger said that defendant was driving him home from the Genesis Club, where they had had a few drinks. The passenger had a moderate odor of alcohol on his breath and his eyes were dilated and slightly watery. Staton placed the passenger in the patrol car until he could determine the condition of the driver. The passenger was later released.

While Staton was with the passenger, McCormick was speaking with defendant. Although defendant produced his identification when asked, he gave conflicting answers as to McCormick's questions about the truck's registration. ¹ McCormick testified that defendant seemed very nervous and agitated, that his hands were shaking, and that he never stopped moving while McCormick spoke with him. When McCormick noticed something on the console that he thought might be a knife, defendant identified it as a pipe and showed it to the officer. At the hearing, both officers described it as a marijuana pipe, and Staton stated that it contained residue of marijuana.

At some point during their conversation, McCormick asked defendant to step out of the truck. Staton then approached defendant and, based on his knowledge that defendant had been drinking and his observations of defendant's dilated and slightly bloodshot eyes, his poor balance, and the odor of alcohol on his breath, Staton arrested defendant for driving while under the influence of alcohol. During a pat-down search of defendant, Staton unzipped defendant's fanny pack and saw a switchblade, which he removed. He asked defendant for consent to search the truck, but defendant refused.

Because the Plaid Pantry parking lot was posted as a tow-away zone and because the sheriff's office was unable to contact the registered owner of the truck, Staton decided to have the truck towed to an impound lot, pursuant to the sheriff's department operating procedures. In preparation for the tow, Staton conducted an inventory search of the truck's contents, pursuant to the Multnomah County Procedures Manual. Among other items found in the truck, Staton found a gun, the marijuana pipe, a small scale, and a small, black film canister. Staton opened the canister and found a plastic bag with a substance he recognized as methamphetamine.

Shortly thereafter, McCormick removed defendant's wallet from the dashboard, for the purpose of returning it to defendant. McCormick testified that he opened the wallet to make sure that it did not contain any weapons or means of escape and to confirm defendant's identity. Inside the wallet was a plastic baggie containing what McCormick suspected to be methamphetamine. Staton questioned defendant about the substances found in the canister and the wallet, and defendant made statements in response to those questions.

Defendant was charged by indictment with possession of a controlled substance (methamphetamine), carrying a concealed weapon, and unlawful possession of a firearm. ORS 475.992(4); ORS 166.240; ORS 166.250. In a pretrial motion to suppress all physical evidence and statements, defendant argued that he was unlawfully stopped and frisked and that the officers unlawfully searched the film canister and the wallet. The trial court concluded that defendant was not stopped until McCormick asked him to step out of the truck, and that the stop was lawful based on the officers' reasonable suspicion that defendant had committed a crime. After concluding that the subsequent searches were also lawful, the court denied defendant's motion to suppress. The charge of unlawful use of a firearm was dismissed, and defendant was convicted, on stipulated facts, of the other two offenses.

On appeal, defendant assigns error to the denial of his motion to suppress. Although we are bound by the trial court's findings of historical facts that are supported by evidence in the record, Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968), we must determine if those facts are sufficient to satisfy constitutional standards. State v. Warner, 284 Or. 147, 585 P.2d 681 (1978).

Defendant first contends that he was "stopped" when the officers approached his truck from either side. ² ORS 131.605(5) defines a stop as "a temporary restraint of a person's liberty by a peace officer lawfully present in any place." ³ A person is stopped if, under the circumstances, "a reasonable person would have believed that his liberty had been temporarily restrained." State v. Ehly, 317 Or. 66, 76, 854 P.2d 421 (1993). In this case, defendant contends that, because "[n]o citizen would feel free to leave if officers approached from either side of the vehicle and began asking questions," he was stopped "as soon as the officers approached the vehicle."

It is axiomatic that not every encounter between a law enforcement officer and a citizen rises to the level of a statutory stop. As explained in State v. Kennedy, 290 Or. 493, 498, 624 P.2d 99 (1981), "a peace officer may approach a citizen, identify himself as an officer and ask some preliminary questions without making a 'stop.' " Similarly, as the court held in State v. Holmes, 311 Or. 400, 410, 813 P.2d 28 (1991),

"law enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them"

without transforming the encounter into an Article I, section 9, seizure. Accordingly, we have held that, absent other circumstances to make the encounter coercive, a police officer who approaches a parked car and questions its occupants has not shown sufficient authority to cause a reasonable person to believe that he or she is not free to leave. See, e.g., State v. Gilmore, 123 Or.App. 594, 860 P.2d 882, rev. den. 318 Or. 171, 867 P.2d 1385 (1993). The mere approach of the two officers, without more, does not constitute a qualitatively greater show of authority. We conclude that defendant was not stopped or seized within the meaning of ORS 161.615(1) or Article I, section 9, at the time the officers approached the vehicle. ⁴ The trial court did not err in so holding.

Defendant also argues that the search of his fanny pack was unlawful. In his brief to this court, however, he states that he "is not asking the court to suppress anything based on the [search]"; rather, he is only asserting that the discovery of the knife may not be used to establish probable cause to arrest. Consequently, it is unnecessary to address the propriety of that search.

Defendant next contends that the administrative procedure for inventorying the contents of his truck did not authorize Staton to open the film canister discovered in the truck. The trial court concluded that the officer lawfully discovered the film canister pursuant to a properly authorized administrative procedure for conducting inventory searches. ⁵ See State v. Atkinson, 298 Or. 1, 688 P.2d 832 (1984) (describing constitutionally permissible inventory processes). It then concluded that, although the opening of the canister could not have been justified on the basis of inventory needs, Staton had developed probable cause to believe that defendant was in possession of a controlled substance and, therefore, was justified in conducting a search incident to arrest for that crime:

"The officer found the canister [during the inventory search.] He himself has had experience and training in narcotics and where it's kept, according to his testimony. He's seen those kinds of canisters containing drugs in 20 to 30 prior occasions. And remember, too, he was already aware of the pipe, the marijuana pipe in the car. And collectively that information gave him probable cause to believe that there was some sort of Possession of [a] Controlled Substance crime, and he would have a right to make a search incident to the arrest."

We have held that an officer who is conducting an authorized inventory of an arrestee's personal property may not open a closed, opaque container for the sole purpose of inventorying its contents. State v. Ridderbush, 71 Or.App. 418, 692 P.2d 667 (1984). However, if in the course of the inventory process the officer develops probable cause to believe that the arrestee has committed a crime other than the one for which he or she was arrested, the officer may conduct a search incident to the presumed arrest for that other crime. See State v. McCrory, 84 Or.App. 390, 394, 734 P.2d 359 (1987) (seizing and opening paperfold discovered during inventory was justified by probable cause to believe that the defendant was in possession of controlled substance); see also State v. Owens, 302 Or. 196, 204, 729...