State v. Smalley, 074980FE

CourtCourt of Appeals of Oregon
Citation225 P.3d 844,233 Or. App. 263
Docket NumberA138399.,074980FE
PartiesSTATE of Oregon, Plaintiff-Appellant, v. Fred Jonathon SMALLEY, Defendant-Respondent.
Decision Date20 January 2010
225 P.3d 844
233 Or. App. 263
STATE of Oregon, Plaintiff-Appellant,
Fred Jonathon SMALLEY, Defendant-Respondent.
Court of Appeals of Oregon.
Argued and Submitted on August 27, 2009.
Decided January 20, 2010.

[225 P.3d 845]

Douglas F. Zier, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Joshua B. Crowther, Senior Deputy Public Defender, argued the cause for respondent. On the brief were Peter Gartlan, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Appellate Division, Office of Public Defense Services.

Before SCHUMAN, Presiding Judge, and BREWER, Chief Judge, and RIGGS, Senior Judge.


233 Or. App. 265

The state appeals an order suppressing evidence found during a warrantless search of defendant's backpack. ORS 138.060(1)(c). It argues that the search was lawful under the automobile exception to the warrant requirement. We agree. Accordingly, we reverse and remand.

The relevant facts are not in dispute. Medford Police Officer Jewell conducted a lawful traffic stop of a pickup truck in which defendant was a passenger. During the course of that stop, Jewell obtained the driver's consent to search the truck. Upon opening the driver's-side door, Jewell noticed the odor of marijuana. When he lifted the seat forward, the odor became stronger. Behind the seat, he found a backpack. As he got closer to the backpack, the odor of marijuana became still stronger; according to his testimony, it was "obvious" to him that the backpack contained "a large amount of marijuana." He opened the backpack, and, indeed, it contained a large amount of marijuana-approximately 62 ounces. After the driver denied owning the backpack, defendant admitted that it was his.

Defendant was charged with unlawful manufacture of marijuana, ORS 475.856, and unlawful possession of marijuana, ORS 475.864. Before trial, he moved to suppress the evidence obtained as a result of the warrantless search of his backpack. The state argued that the search fell within the automobile exception to the warrant requirement. See State v. Brown, 301 Or. 268, 277, 721 P.2d 1357 (1986) (recognizing an exception to the warrant requirement under Article I, section 9, of the Oregon Constitution); accord State v. Meharry, 342 Or. 173, 180, 149 P.3d 1155 (2006). The trial court rejected that argument, granted defendant's motion, and ordered that the evidence be suppressed:

"After hearing the testimony and arguments of counsel the court finds that the warrantless search of defendant's backpack was in violation of Article I, section 9, of the Oregon Constitution. If the state is relying on the odor of marijuana to give it the right to search it is mistaken. Only if the closed container by its shape or openness precludes any other product would the police be justified in opening it without a warrant. There was not evidence here regarding

233 Or. App. 266

the size of the backpack or supporting the fact that it could not contain anything except marijuana. If the container was being seized as a part of the inventory of the vehicle, the automobile exception would not apply.

"A search warrant was required. Defendant's Motion to Suppress is granted."

On appeal, the state renews its argument that the search was lawful under the automobile exception. Defendant argues, in response, that "the state failed to demonstrate one of the two requirements of the exception: that [the officer] had probable cause to believe that evidence of a criminal offense (as opposed to a violation) would be found."1

225 P.3d 846

(Emphasis in original.) According to defendant, because possession of less than one ounce of marijuana is not a criminal offense, see ORS 475.864(3), the state needed to prove that the officer had probable cause to believe that defendant's backpack contained more than that amount, which, defendant asserts, it failed to do.

We review for errors of law, deferring to the trial court's factual findings where there is sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We conclude that the court erred in suppressing the evidence.

"[W]arrantless * * * searches * * * are per se unreasonable unless falling within one of the few specifically established and well-delineated exceptions to the warrant requirement." State v. Davis, 295 Or. 227, 237, 666 P.2d 802 (1983) (internal quotation marks omitted). One such exception is the automobile exception, under which

"probable cause to believe that a lawfully stopped automobile which was mobile at the time of the stop contains contraband or crime evidence justifies an immediate warrantless search of the entire automobile for the object of the search, despite the absence of any additional exigent circumstances."

233 Or. App. 267

Brown, 301 Or. at 277, 721 P.2d 1357. In those circumstances, the police may search any area of the vehicle or any container within the vehicle in which they have probable cause to believe that the contraband or crime evidence may be found. See id, 301 Or. at 279, 721 P.2d 1357 (upholding search of handbag found in car trunk); see also State v. Miller, 345 Or. 176, 186, 191 P.3d 651 (2008) (probable cause requires that an officer subjectively believe that the defendant has committed an offense and that the belief be objectively reasonable). The state need not articulate particular circumstances demonstrating the impracticality of obtaining a warrant; rather, exigency is presumed. See State v. Coleman, 167 Or.App. 86, 92, 2 P.3d 399 (2000); see also Meharry, 342 Or. at 180, 149 P.3d 1155 ("[T]he exigency that permits the police to conduct a warrantless search of a mobile vehicle arises from the fact that the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." (Internal quotation marks omitted.)).

In its order, the trial court incorrectly states that "[o]nly if the closed container by its shape or openness precludes any other product would the police be justified in opening it without a warrant." In so asserting, the trial court appears to have relied on State v. Kruchek, 156 Or.App. 617, 969 P.2d 386 (1998), aff'd by an equally divided court, 331 Or. 664, 20 P.3d 180 (2001). In that case, an officer stopped the defendant's vehicle for a traffic infraction and cited him for driving uninsured. Id. at 619, 969 P.2d 386. The officer then impounded the vehicle and began an inventory of its contents, during which he noticed a strong odor of marijuana emanating from a cooler in the back of the vehicle. Id. at 619-20, 969 P.2d 386. He opened the cooler and found marijuana. Id. at 620, 969 P.2d 386. On appeal from his conviction for possession of a controlled substance, the defendant argued that the trial court had erred in failing to grant his motion to suppress the marijuana. Id. We noted that "[t]he cooler in [the] defendant's vehicle was an opaque container that could have...

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    ...(and order any passengers out of the car to facilitate that search). At least one court has adopted this reasoning. In State v. Smalley, 233 Or.App. 263, 265, 270–271, 225 P.3d 844 (2010), the Court of Appeals of Oregon determined that, despite the decriminalization of marijuana in small am......
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    • James Publishing Practical Law Books Suppressing Criminal Evidence Fourth amendment searches and seizures
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    ...or to drive with an open container of marijuana; thus, the search was permissible, but see People v. Johnson , below. • State v. Smalley , 225 P.3d 844 (Or. Ct. App. 2010). This decision held that the odor of marijuana is sufficient to permit search of car and backpack in car, even though p......

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