State v. Pearson

• Decision Date: 08 October 1973
• Citation: 514 P.2d 884,15 Or.App. 1
• Parties: STATE of Oregon, Appellant, v. Marci Lee PEARSON, Respondent.
• Court: Oregon Court of Appeals

Page 884

514 P.2d 884

15 Or.App. 1

STATE of Oregon, Appellant, v. Marci Lee PEARSON, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Aug. 21, 1973.

Decided Oct. 8, 1973.

Doyle L. Schiffman, Dist. Atty., Roseburg, argued the cause for appellant. With him on the brief was Brian R. Barnes, Deputy Dist. Atty., Roseburg.

Donald S. Kelley, Roseburg, argued the cause for respondent. With him on the brief were Luoma, Kelley, Woodruff & Wolke, Roseburg.

Before LANGTRY, P.J., and FOLEY and THORNTON, JJ.

THORNTON, Judge.

Defendant was indicted for criminal activity in drugs. ORS 167.207. Prior to trial defendant moved to suppress evidence in the form of marihuana seized from the ash tray of her automobile, ¹ and marihuana obtained from her home. After an evidentiary hearing the circuit court granted defendant's motion to suppress as to the above evidence. The state now appeals from that portion of this order suppressing the marihuana seized from defendant's automobile.

The essential facts are not in dispute.

On January 24, 1973, the defendant left her automobile at a Roseburg garage for servicing. When the serviceman, Roger Barrick, was preparing to service the vehicle, he opened the car door and thereupon smelled what he described as a strong odor of recently burned marihuana. He immediately looked into the car's ash tray and found what he recognized to be several marihuana roach butts. The evidence was that Mr. Barrick was a Roseburg city police reserve officer and had received training in recognizing the odor of marihuana. He promptly notified the police station. Officer Havicus responded to the call. When he arrived at the garage Mr. Barrick took him to the service area, removed the ash tray from the car and showed him the ash tray and its contents. Officer Havicus agreed that the material was in fact marihuana. Mr. Barrick then dumped the contents into an envelope provided by the officer. Mr. Barrick then searched the 'jock box' of the car for drugs, but did not find any. No further search was made. Mr. Barrick then proceeded to service the automobile. The officer waited in his police car at a nearby vantage point until the owner of the automobile returned to claim it. When the defendant left with the automobile, Officer Havicus stopped her and advised her why she had been stopped. She was advised of her constitutional rights and elected to invoke them. She was then taken to the police station and another officer remained to search and secure defendant's automobile. No other contraband was found in the vehicle, but defendant later advised the police that she had some marihuana in her home and the officers seized if after securing her apparent consent. At the conclusion of the hearing the trial judge granted defendant's motion to suppress both the marihuana found in the vehicle's ash tray and that obtained from defendant's home.

In suppressing the marihuana seized from defendant's automobile the trial judge stated:

'With reference to the contents of the ashtray, the Court is of the opinion that when the car was taken into the garage for servicing, the oil change, filter change, and so on, that this constituted at least an implied consent of the cleaning of the interior of the car, including looking into the ashtray, so the discovery of the contraband in the ashtray (by Barrick) was not the product of an illegal search, even assuming that the officer at the time in question could be deemed to be a government agent. I believe there is a serious question as to that because he was strictly off duty and following his principal occupation, which was not that of a police officer * * *.'

The state's argument is twofold:

First, the seizure of the marihuana was justifiable without a search warrant because of the terms of ORS 167.247(1), which provides:

'A district attorney or peace officer charged with the enforcement of ORS 167.202 to 167.228, having personal knowledge or reasonable information that narcotic or dangerous drugs are being unlawfully transported or possessed in any boat, vehicle or other conveyance, may search the same without warrant and without an affidavit being filed. If narcotic or dangerous drugs are found in or upon such conveyance, he may seize them, arrest any person in charge of the conveyance and as soon as possible take the arrested person and the seized drugs before any court in the county in which the seizure is made. He shall also, without delay, make and file a complaint for any crime justified by the evidence obtained.'

Second, apart from the above-quoted statute, the case law has long recognized and has permitted a search and seizure of contraband from an automobile without a warrant under the above circumstances, citing Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

Defendant's argument in support of the challenged suppression order is that ORS 167.247(1) is not applicable for the following reasons:

(1) If the mechanic was acting in his capacity as a police officer, he had no right to make entry into the defendant's motor vehicle as he had no personal knowledge or reasonable information that the car contained narcotic drugs before he opened the door and made the entry.

(2) If the mechanic was acting as a mechanic (which he was at the time), then he had the right to enter the motor vehicle for the purposes of a mechanic, and any discovery of narcotic drugs would warrant seizure only pursuant to a search warrant.

In addition defendant contends that in light of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), ORS 167.247(1) is unconstitutional under Art. I, § 9, Oregon Constitution, and the Fourth and Fourteenth Amendments to the United States Constitution, absent exigent circumstances in making the search and seizure.

We conclude that under all the circumstances of this case the seizure of the marihuana discovered in the ash tray was a reasonable one, and that the trial judge erred in suppressing this evidence. For the reasons hereinafter discussed we need not consider either the applicability or the constitutionality of the provisions of ORS 167.247(1), quoted above.

We agree with the trial court that Mr. Barrick was not acting as a police officer during the sequence of events at the garage. Therefore the discovery of the roach butts by Mr. Barrick was not the product of an illegal search.

The Supreme Court has held that the Fourth Amendment applies only to governmental action and that evidence seized by a private individual acting on his own initiative need not be excluded. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048, 13 ALR 1159 (1921); Accord, State v. Becich, Or.App. 97 Adv.Sh. 195, 198, 509 P.2d 1232, S.Ct. review denied (1973); State v. Padilla, 9 Or.App. 162, 167, 496 P.2d 256 (1972); State v. Bryan, 1 Or.App. 15, 17, 457 P.2d 661 (1969). '* * * However, an illegal search by a private party can be subject to constitutional controls if the private action is participated in by police officers. Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949) * * *.' State v. Becich, supra at 198 of 97 Adv.Sh., 509 P.2d at 1234. The crucial question therefore becomes the extent of the official involvement. State v. Becich, supra; Raymond v. Superior Court, 19 Cal.App.3d 321, 96 Cal.Rptr. 678 (1971).

The question of official involvement in the present case turns on the capacity in which Mr. Barrick acted when he found the marihuana since he is a Roseburg city police reserve officer. Therefore we must determine whether this fact alone is sufficient to provide governmental action.

The state argues that Mr. Barrick was engaged in his principal occupation of garage mechanic when he discovered the contraband. Therefore, his actions were that of a private citizen. However, official involvement is not measured by the primary occupation of the actor, but by the Capacity in which he acts at the time in question. See, State v. Brothers, 4 Or.App. 253, 478 P.2d 442 (1970); Shelton v. State, Tenn.App., 479 S.W.2d 817, cert. denied 409 U.S. 852, 93 S.Ct. 65, 34 L.Ed.2d 95 (1972); People v. Wolder, 4 Cal.App.3d 984, 84 Cal.Rptr. 788 (1970); People v. Martin, 225 Cal.App.2d 91, 36 Cal.Rptr. 924 (1964); Cf., United States v. Lopez, 328 F.Supp. 1077 (DC NY 1971); State v. Becich, supra; State v. Young, 11 Or.App. 276, 501 P.2d 1001 (1972).

In Shelton v. State, supra, an off-duty Tennessee highway patrolman, while examining a car he wished to purchase, opened the car door and wrote down the serial number he found thereon. This information was subsequently used in a prosecution of the intended seller for receiving a stolen automobile. The court said that this was not an illegal search and seizure because the officer had not been acting as an officer when he recorded the serial number on the car. 479 S.W.2d at 820.

In People v. Wolder, supra, an off-duty Los Angeles policeman went to the city of Long Beach to talk with his daughter's landlord. The landlord told the officer that he was storing some boxes for the daughter, which...