State v. Mickelson

• Decision Date: 26 November 1974
• Citation: 526 P.2d 583,18 Or.App. 647
• Parties: STATE of Oregon, Appellant, v. Charlene Lorraine MICKELSON, Respondent.
• Court: Oregon Court of Appeals

Page 583

526 P.2d 583

18 Or.App. 647

STATE of Oregon, Appellant, v. Charlene Lorraine MICKELSON, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Aug. 20, 1974.

Decided Sept. 23, 1974.

Rehearing Denied Oct. 30, 1974.

Review Denied Nov. 26, 1974.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Eugene L. Parker, Portland, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and FOLEY and TANZER, JJ.

TANZER, Judge.

Defendant was indicted for criminal activity in drugs (possession of amphetamine sulfate). Her motion to suppress amphetamine tablets seized by the arresting officer was granted by the trial court and the state appeals. We affirm.

On January 17, 1974, narcotics officers executed a warrant to search an apartment and the person of a named tenant other than the defendant, for heroin. Defendant, along with others, was on the premises when the warrant was executed. She was held in the living room by Sergeant Johnson while other officers searched the rest of the apartment.

Deputy Chaney searched the rear bedroom. There he found a bank savings account passbook, correspondence and other items of personal property belonging to defendant. He then found various narcotics paraphernalia, 'hashish pipes' and a vial of hashish oil in the same room.

Sergeant Johnson went to the back room during the course of Deputy Chaney's search. Granting to the state the most favorable inferences supported by the record we conclude that he learned of the items linking defendant to the room but that he was not informed of the hashish oil and paraphernalia because it had not yet been found. He then returned to the living room and searched defendant's purse for heroin. Instead, he found several amphetamine tablets and arrested defendant for their possession.

The trial judge, on granting defendant's motion to suppress, held that there was no probable cause to arrest and search because the discovery of the personal property of the defendant did not constitute probable cause to believe that defendant resided in the rear bedroom and, consequently, did not constitute probable cause to believe she was in constructive possession of the hashish oil. The state contends that the discovery of evidence connecting defendant with one of the rooms in which narcotic drugs were found constitutes probable cause for arrest and search and that, therefore, the court erred in allowing defendant's motion.

Probable cause exists where circumstances would justify a well-warranted suspicion that the person to be arrested or searched has committed a crime. State v. Murphy, 2 Or.App. 251, 465 P.2d 900, rev. den., cert. den., 400 U.S. 944, 91 S.Ct. 246, 27 L.Ed.2d 248 (1970); State v. Keith,2 Or.App. 133, 465 P.2d 724, rev. den. (1970). The finding, in this case, of defendant's personal property in the same room as the hashish oil was sufficient to constitute probable cause to connect that person to the contraband. Cf. State v. Garrett, 7 Or.App. 54, 489 P.2d 994, rev. den. (1971).

To conclude that circumstances constituting probable cause existed, however, is not dispositive here. Sergeant Johnson did not have knowledge of Deputy Chaney's discovery of the hashish oil in the rear bedroom at the time he searched defendant and Deputy Chaney's knowledge cannot be imputed to him. To hold the search in this case justified would encourage police officers to search on the hope that the total knowledge of all those officers involved in a case will later be found to constitute...