State v. Miller

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Before JOSEPH, P. J., RICHARDSON, J., and SCHWAB; RICHARDSON
• Citation: State v. Miller, 45 Or.App. 407, 608 P.2d 595 (Or. App. 1980)
• Decision Date: 24 March 1980
• Docket Number: No. 79-624,79-624
• Parties: STATE of Oregon, Respondent, v. Jerry Joel MILLER, Appellant. ; CA 15211.

Page 595

608 P.2d 595

45 Or.App. 407

STATE of Oregon, Respondent, v. Jerry Joel MILLER, Appellant.

No. 79-624; CA 15211.

Court of Appeals of Oregon.

Argued and Submitted Jan. 23, 1980.

Decided March 24, 1980.

Walter B. Hogan, Coquille, argued the cause for appellant. With him on the brief was Maurice V. Engelgau, Coquille.

James M. Brown, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before JOSEPH, P. J., RICHARDSON, J., and SCHWAB, Chief Judge. ^*

RICHARDSON, Judge.

Defendant appeals his convictions for possession of a controlled substance, ORS 475.992(4), and carrying a concealed weapon, ORS 166.250. He contends the court erred in denying his motion to suppress evidence seized without a warrant from the vehicle he was driving.

The evidence presented at the hearing on the motion disclosed the following sequence of events. At approximately 1:44 a. m. Deputy Sheriffs Cook and Ellison were parked in an unmarked vehicle in a boat ramp parking area. They observed the defendant and his passenger in a pickup, enter the parking area at a high rate of speed. The pickup made a 360 degree sliding turn around the vehicle in which the deputies were seated and then it left the parking lot without stopping at a stop sign. The officers pursued the vehicle at speeds of 65 to 70 miles per hour. The defendant's vehicle was subsequently stopped by another deputy who received the radio report of the pursuit. Defendant concedes the stop was lawful. After being stopped defendant and the passenger got out of the pickup. Cook and Ellison arrived approximately a minute later. At this time there were three other officers present. Ellison talked with defendant and the passenger and noted an odor of an alcoholic beverage on their breath. Defendant admitted that he had consumed some beer. At this point Ellison contemplated charging defendant, the driver of the pickup, with reckless driving, attempting to elude a police officer and driving under the influence of intoxicants.

Ellison walked over to the pickup to check and see if there was any alcoholic beverage inside. He shined his flashlight through the passenger window and saw three or four inches of a baseball bat protruding from under the seat on the passenger side of the pickup. He opened the door and removed the bat. As he did so a brown paper sack, which was under the seat, fell to the floorboard. He opened the sack and saw what he concluded was marijuana.

Defendant and his passenger were then arrested for possession of a controlled substance and advised of their rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). Both men were then searched. During the course of that search several rounds of ammunition were found on the person of the passenger, and when asked if they had a weapon, defendant responded that there was a gun under the vehicle's seat. A revolver was removed from the vehicle.

Defendant argues, citing 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), and State v. O'Neal, 251 Or. 163, 444 P.2d 951 (1968), overruled, State v. Florance, 270 Or. 169, 184, 527 P.2d 1202 (1974), that the officers did not have probable cause to search defendant's vehicle. There was no basis, it is contended, for believing a crime other than the traffic offenses had been committed. Defendant also contends that the baseball bat is not contraband under ORS 166.510, e. g., State v. Page, 43 Or.App. 417, 602 P.2d 1139 (1979), and that there was no basis for a reasonable fear that the officers were in danger of injury with the bat.

It is clear from the record that the baseball bat was observed by the officer prior to any intrusion into the vehicle. Because the bat was seen by aid of the flashlight, without any intrusion into the vehicle, there was, in fact, no search. If there is no trespass by the law enforcement officer, the observation, aided by a light, of that which is in open view is not a search. State v. Riley, 240 Or. 521, 402 P.2d 741 (1965). The question remains whether the seizure of the bat meets constitutional requirements.

A law enforcement officer, in the process of making an arrest or questioning a person suspected of criminal activity, may take reasonably necessary measures to protect himself and other persons from injury. State v. Riley, supra; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). If the reasonable needs of protection require the officer to enter constitutionally protected areas, such as a vehicle, the inquiry is the reasonableness under all the circumstances of the intrusion.

Defendant, apparently anticipating our holding in State v. Page, supra, argues that it is not illegal under ORS 166.510 to possess a baseball bat. From this proposition he contends that the officer viewing the bat did not have probable cause to believe it was contraband and thus seizable. The right of an officer to protect himself and others during the process of an arrest does not depend on his observation of an illegal weapon. The risk of harm from a particular weapon exists because of the weapon, not whether it is legally or illegally possessed.

Defendant next argues that a baseball bat is a common sports item and there is no basis for the officer considering it to be a weapon. The officer who seized the bat and two...