State v. Porter

• Decision Date: 19 September 1991
• Citation: 817 P.2d 1306,312 Or. 112
• Parties: STATE of Oregon, Respondent on Review, v. Charles Leslie PORTER, Petitioner on Review. CC 10-88-08835; CA A51130; SC S37485.
• Court: Oregon Supreme Court

Page 1306

817 P.2d 1306

312 Or. 112

STATE of Oregon, Respondent on Review, v. Charles Leslie PORTER, Petitioner on Review.

CC 10-88-08835; CA A51130; SC S37485.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 22, 1991.

Decided Sept. 19, 1991.

Peter Gartlan, Deputy Public Defender, Salem, argued the cause, for petitioner on review. With him on the petition, was Sally L. Avera, Public Defender, Salem.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause, for respondent on review. With her on the response to the petition, were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

GRABER, Justice.

The issue in this criminal case is whether, after discovering and seizing evidence of an open container violation ¹--an open can containing beer--an officer lawfully searched defendant's car for additional open containers. We hold that the search was unlawful and that the trial court should have suppressed evidence that resulted from it. Accordingly, we reverse the decision of the Court of Appeals, which affirmed the judgment of the trial court. State v. Porter, 102 Or.App. 22, 792 P.2d 471 (1990).

The trial court made no findings of fact when it ruled on the motion to suppress evidence. For the purpose of his petition for review, however, defendant agrees that the Court of Appeals stated the facts correctly.

On September 29, 1988, a police officer noticed defendant, because he was driving a car like the officer's. When the officer caught his eye, defendant looked away furtively. That aroused the officer's suspicion. He ran a records check and discovered that there was an arrest warrant outstanding for the car's registered owner. Because defendant matched the description of the registered owner, the officer stopped the car. After confirming that defendant was the registered owner of the car and was wanted on a Nevada fugitive warrant, the officer arrested defendant and placed him in the back seat of the patrol car.

During the stop, the officer had noticed an open beer can behind the driver's seat, so he returned to defendant's car. He picked up the beer can and determined that it contained some beer. He saw no evidence of a crime. He then searched the car for more open beer cans; that is the search at issue. Under the front seat, the officer found a mirror covered with razor marks. He then looked inside a closed box between the front bucket seats. There, he found four baggies containing methamphetamine and a "cut down" straw with white residue on it.

Defendant was indicted for possession of a controlled substance, ORS 475.992. Before trial, he moved to suppress the methamphetamine, mirror, and straw, arguing that the officer found and seized them during an unlawful search. The state contended that the search was lawful under the automobile exception to the warrant requirement. ² The trial court denied the motion. Defendant was convicted, and he appealed.

To the Court of Appeals, the state made a new argument. It contended that the officer was entitled to search for additional open containers under ORS 810.410(3)(b), which permits an "investigation reasonably related to [a] traffic infraction." The Court of Appeals affirmed on that ground, reasoning that the officer saw the open beer can in plain view during the course of a lawful stop. "That discovery justified an investigation 'reasonably related to the traffic infraction' regarding open containers." State v. Porter, supra, 102 Or.App. at 25, 792 P.2d 471. The court also concluded that, when the officer found the razor-scratched mirror, he had probable cause to believe that a crime had been committed, justifying his search of the closed box. Id. at 27, 792 P.2d 471. We allowed defendant's petition for review. ³

Defendant does not challenge the validity of the stop or of his arrest on the fugitive warrant, nor does he contend that the officer's seizure of the open beer can was unlawful. ⁴ Rather, he argues that, under ORS 810.410(3), the officer could not lawfully search for additional open containers after having found one open container and nothing more. In the alternative, he argues, if the statute permits the search, then the statute violates Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. ⁵

We begin our analysis with the statute, ORS 810.410, which provides in part:

"(2) A police officer may issue a citation to a person for a traffic infraction * * * when the traffic infraction is committed in the police officer's presence.

"(3) A police officer:

"(a) Shall not arrest a person for a traffic infraction.

"(b) May stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation." (Emphasis added.)

The key provision, subsection (3)(b), is not self-explanatory. Therefore, we consult the legislative history of the statute to determine legislative intent. Mattiza v. Foster, 311 Or. 1, 4, 803 P.2d 723 (1991).

ORS 810.410 [then codified at former ORS 484.353] was enacted in 1981, Or.Laws 1981, ch. 818, in part as a response to this court's decision in Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977). In Brown, this court wrote:

"[I]t bears on the constitutional distinction between a civil case and a 'criminal prosecution' that the Oregon Vehicle Code retains many of the pre-trial practices used in the enforcement of criminal laws. It is by now well understood that this process encompasses the stages before charge, plea, and trial as well as the trial itself. The statutes place major traffic offenses with felonies and misdemeanors in the law of arrest. ORS 133.310. A person thus arrested faces the possible use of physical restraints, such as handcuffs, a search of the person, * * *. Of course a traffic offender must be subject to being stopped, compare ORS 131.605-131.615, and in the case of apparent intoxication prevented from resuming his driving.

Often that could be accomplished by other means. But detention beyond the needs of identifying, citing, and protecting the individual or 'grounding' him, especially detention for trial unless bail is made, comports with criminal rather than with civil procedure and is surely so perceived by the public.16

The proposed statute was submitted to the 1981 Legislative Assembly as Senate Bill 55, at the request of the Special Courts Committee of the Oregon Judicial Conference. Doug Bray of the Special Courts Committee explained SB 55 to the House Judiciary Committee:

"The 1975 Legislature enacted a major reorganization of the structure of traffic offenses. The legislature established a distinction between traffic offenses which it deemed serious enough to carry criminal penalties and those which should not. These latter offenses were defined as traffic infractions. The distinguishing features of the traffic infraction were the absence of incarceration as a possible penalty and the removal of the protections extended to individuals prosecuted for criminal offenses.

"These changes to the motor vehicle code enacted from Senate Bill 1 became effective on July 1, 1976. On August 1, 1976 Mr. Hugh Duffy Brown was cited into Multnomah County District Court for the Class A traffic infraction of driving while under the influence of intoxicants. The Oregon Supreme Court, on October 12, 1977, issued its opinion in Hugh Duffy Brown v. Multnomah County District Court, 280 Or 95, 510 P2d 52 [1977]. The court concluded in Brown that the criminal law enforcement procedures retained by the legislature for infraction enforcement contained too many penal characteristics not to be a criminal prosecution under Article I, section 11 of Oregon's constitution. While the Supreme Court restricted its ruling in Brown to the particular offense before it, a close reading of Brown left no doubt that many of the penal characteristics that troubled the Supreme Court in its analysis of the Class A traffic infraction of driving while under the influence of intoxicants applied equally to the enforcement procedures for all traffic infractions and would lead to the same result if a similar analysis were applied. This analysis was reinforced clearly in a March, 1981 opinion of the Oregon Supreme Court. Justice Tongue writing for the majority in Easton v. Hurita, 290 Or 689, P2d [1290] (1981), states that infraction procedures which retain the power of full custodial arrest are not decriminalized sufficiently to withhold constitutional protections (at 697 ). Easton involved a suit for false arrest and did not require the court to rule directly on the constitutionality of the arrest authority. ⁶ There can be little doubt following Easton about how the court will rule if the issue does arise.

"The purpose of Senate Bill 55 is to establish effective law enforcement procedures for traffic infractions that can be distinguished from criminal law enforcement procedures and at the same time retain authority for police officers to stop, investigate, identify, and cite motorists for traffic infractions." Exhibit A, House Committee on the Judiciary, Subcommittee 2 (July 2, 1981--testimony of Doug Bray, Special Courts Committee).

See also Minutes, Senate Committee on Justice, May 13, 1981, p. 11 (Doug Bray provided similar explanation of the purpose of SB 55 in testimony to Senate Committee); Minutes, Senate Committee on Justice, May 13, 1981, p. 10 (Chair Wyers stated that SB 55 protects against the possibility of violating the Brown decision); Exhibit M, Senate Committee on Justice, May 13, 1981 (Philip T. Abraham, Chair, Special Courts Committee, testified that the purpose of Senate Bill 55 is to establish law enforcement procedures for traffic infractions that can be distinguished from criminal enforcement in the light of Brown ).

The purpose of SB 55 was explained similarly in floor debates of both the Senate and the House....