State v. Reed

• Decision Date: 30 August 2000
• Citation: 9 P.3d 738,169 Or. App. 456
• Parties: STATE of Oregon, Appellant, v. Aretha Len REED, Respondent.
• Court: Oregon Court of Appeals

9 P.3d 738

169 Or. App. 456

STATE of Oregon, Appellant, v. Aretha Len REED, Respondent.

(97C-21727; CA A104112)

Court of Appeals of Oregon.

Argued and Submitted January 28, 2000.

Decided August 30, 2000.

Rolf C. Moan, Assistant Attorney General, argued the cause for appellant. With him on the brief was Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Jennelle Hall, Deputy Public Defender, argued the cause for respondent. With her on the brief was David E. Groom, Public Defender.

Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.

De MUNIZ, P.J.

The state appeals from an order suppressing evidence found in defendant's purse in the course of a search incident to her arrest for assault. ORS 138.060(3). The state argues that the trial court erred in suppressing methamphetamine found in film canisters in defendant's purse on the ground that the police officer's use of a flashlight to illuminate one of the film canisters constituted an unlawful search for purposes of Article I, section 9, of the Oregon Constitution. We affirm.

Salem Police Officer Byers stopped defendant's vehicle at approximately 10:00 p.m. on November 17, 1997, after receiving a dispatch concerning an assault by the driver of a similar vehicle. The dispatch indicated that the suspect in the assault was Aretha Reese; Byers ran a check on the license plates of defendant's vehicle and discovered that it was registered to Aretha Reed. Based on this information, he decided to stop the vehicle in order to investigate the assault. Because the dispatch indicated that a weapon had been involved in the assault, Byers removed defendant and her passengers from the vehicle and patted them down, but discovered no weapons. Byers contacted an officer who was at the scene of the assault, determined that defendant was the suspect, and placed her under arrest.

Incident to defendant's arrest, Byers looked in her purse for the handgun used in the assault. The purse was located in defendant's vehicle, and Byers described the lighting in the vehicle at the time as "pretty dim." He therefore used a four-cell flashlight to illuminate the interior of defendant's purse. In a side compartment of the purse, Byers observed three film canisters, one of which was semi-transparent. He stated that he could tell by the weight of that container that it did not contain film and that he "could see through it a white—looked like plastic rolled up and a white thing up against the side." Based on his training and experience, he concluded that that was the type of packaging frequently used for controlled substances. He opened the canister and observed a white powdery substance. He subsequently opened the other film canisters and found similar contents. Byers seized the canisters and their contents.

Defendant was charged with possession of a controlled substance, ORS 475.992, and filed a motion to suppress the evidence found in the film canisters. The trial court agreed with defendant that Byers had exceeded the permissible scope of a search incident to arrest and suppressed the evidence. The trial court found that the officer had probable cause to believe that defendant might have had a gun in her possession at the time of the arrest and therefore could look in her purse for the gun. The court further found, however, that the film canister did not announce its contents and that

"[i]t is not credible to the Court that the Officer would have been able to see these very small ziplock bags through the semitranslucent container without the assistance of some enhancement better than the lighting in this courtroom in order for him to have seen and identified it as contraband[.]"

On appeal, the state argues that the court erred in suppressing the methamphetamine found in the film canisters. The state asserts that Byers lawfully discovered the canisters while searching defendant's purse incident to arrest and that he invaded no protected privacy interest by using his flashlight to illuminate the interior of the purse. Defendant does not take issue with the propriety of her arrest and does not dispute that the officer could search her purse for the gun that was used in the assault. She argues first that the trial court finding quoted above is a finding that the officer's description of viewing the contents of the film canister was "not credible" and that we are bound by that finding because evidence in the record supports it. Defendant also argues that the officer's use of a flashlight to view what otherwise would not have been in plain view was an impermissible search that violated Article I, section 9, of the Oregon Constitution. Although we disagree with defendant's first argument, we agree with her second argument, as explained below.

We first address the preliminary question concerning the trial court's factual findings. Defendant suggests that Byers' testimony was that he viewed the contents of the semi-transparent film container without the use of his flashlight and that the trial court's finding that it was "not credible" that he could have seen the contents without some light enhancement is essentially a finding that the officer lied. The state, on the other hand, suggests at one point that "Officer Byers was able to observe the plastic bindle with the naked eye." We do not read the record of the trial court's finding to support either party's interpretation of the facts. The officer testified that he was using his flashlight to look in defendant's purse because the lighting inside the vehicle was dim. When he testified about finding and examining the film canister, he did not specifically mention that he was continuing to use the flashlight. However, as he found the canister while he was looking in defendant's purse, it is implicit in his testimony that he was using the flashlight at that time. The trial court's factual finding reflects the same understanding. It is also implicit in the officer's testimony, indicating that his initial observations of the canister included an observation that it was light in weight, that he removed the canister from the purse in the course of examining it. We read the trial court's finding as a finding that Byers used a flashlight when examining the semi-transparent film canister that he had removed from defendant's purse and that he would not have been able to see the ziplock bags and white substance within the canister had he not used the flashlight to enhance his view.¹

At the outset, we point out what is not at issue in this case. The state does not argue that the film canister "announced its contents." See State v. Lanig, 154 Or.App. 665, 669, 963 P.2d 58 (1998)

("A film canister is not so uniquely associated with the storage and transportation of drugs that, by itself, it suggests that it contains drugs."). Nor does the state suggest that Byers was entitled to search the canister incident to the crime for which defendant was arrested. Rather, the state contends that the officer was entitled to search defendant's purse for a gun incident to her arrest, that the canister came into "plain view" during the course of that search, and that once the officer determined that it was not heavy enough to contain film and observed what appeared to be drug packaging inside, he had reason to believe drugs were contained therein. Defendant does not argue that the officer's removal of the canister from her purse, as an act distinct from his use of the...