State v. Taylor

• Decision Date: 02 December 1992
• Citation: 842 P.2d 460,116 Or.App. 647
• Parties: STATE of Oregon, Respondent, v. James Edward TAYLOR, Appellant. CR91-121A; CA A71460.
• Court: Oregon Court of Appeals

Page 460

842 P.2d 460

116 Or.App. 647

STATE of Oregon, Respondent, v. James Edward TAYLOR, Appellant.

CR91-121A; CA A71460.

Court of Appeals of Oregon.

Argued and Submitted Sept. 30, 1992.

Decided Dec. 2, 1992.

Jesse Wm. Barton, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.

Ann F. Kelley, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

EDMONDS, Judge.

Defendant was convicted, after a jury trial, of arson in the first degree, ORS 164.325, 2 counts of burglary in the first degree, ORS 164.225, and theft in the first degree. ORS 164.055. On appeal, he makes two assignments of error. First, he argues that the trial court erred in not suppressing evidence seized from his car. Second, he asserts that the trial court erred by imposing a 130-day sentence for the theft-related burglary conviction. We remand for resentencing.

The trial court made findings: In March, 1991, defendant and a passenger were driving on Third Street in Yamhill at approximately 10:15 p.m. A police officer stopped the car when defendant failed to signal for a turn. During the course of the stop, the officer determined that defendant's driver's license was suspended. He also saw two-way radio equipment ¹ on the back seat, two black boxes under the equipment and a bulky pillowcase with "a lot of little jagged edges sticking out" underneath the passenger's legs in the front seat.

The officer knew that burglars frequently use pillowcases to collect stolen articles while inside a victim's house. He also knew that similar radio equipment had been used in a recent armed robbery and burglary in the Yamhill area and that the crime had been committed by more than one person. He asked defendant about the pillowcase, and defendant said it was "personal and he could not tell." When questioned further, defendant said it was "women's underwear and things." That explanation was inconsistent with the appearance of the pillowcase. He asked defendant and the passenger what they were doing on Third Street. They said that they were there to see a man named Rich. The officer knew about a person named Rich who lived on Third Street, who was a convicted burglar and drug dealer and a suspect in the armed robbery and burglary.

The officer requested back-up over the radio. While he was waiting for it to arrive, he asked defendant about the radio headsets and the black boxes. Defendant explained that the headsets were for "stereo headphones." The officer knew that the headsets were for two-way radios and were not stereo headphones. Defendant then grabbed one of the boxes to show the officer that it was empty. In so doing, defendant exposed an open bottle of brandy, which the officer saw. The officer testified:

"At this point, I felt that I had a burglary that just occurred. I had the open container with the two-way radios, the pillowcase with the jagged edges in it that didn't match up with what he told me it was. He told me the headsets were stereo. They weren't. At this point, I felt I had probable cause to search the car for more alcohol and fruits of a crime."

The officer seized the pillowcase, searched it and found an armored car-type money bag. In addition, he found jewels that had names on them, none of which were defendant's or his passenger's. Defendant was subsequently arrested and charged. ²

Defendant argues that, in the light of State v. Porter, 312 Or. 112, 817 P.2d 1306 (1991), the trial court erred in denying his motion to suppress, because the officer exceeded the scope of his authority when he detained defendant for a traffic violation for longer than was necessary to complete that investigation. The state argues that the officer acquired probable cause to search the pillowcase as the contact with defendant continued. We are bound by the historical findings made by the trial court, if there is evidence to support them, and we review for errors of law. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).

There is evidence to support the trial court's findings. Defendant is correct that ORS 810.410(3)(b) ³ does not authorize the detention of a person for a traffic infraction for longer than is reasonably necessary to conduct the investigation of that offense. See State v. Dow, 116 Or.App. 542, 842 P.2d 430 (1992). In State v. Porter, supra, 312 Or. at 121, 817 P.2d 1306, the court held that an officer is not permitted to search for additional open containers of alcoholic beverages once there is evidence of an open container. Here, unlike in Porter, the observations of the radio equipment and the pillowcase during the traffic stop justified further inquiry in the light of the officer's previous information. Based on the information and his observations, the officer had a reasonable suspicion that defendant had committed a crime. ORS 131.615. ⁴ When the officer discovered the connection between defendant and a convicted burglar who was suspected of using similar radio equipment in a recent crime in the area, his suspicion escalated into probable cause to search the pillowcase for the fruits of a burglary. State v. Anfield, 313 Or. 554, 561, 836 P.2d 1337 (1992). No search warrant was required, because defendant's car was mobile at the time of the stop. The trial court did not err when it denied defendant's motion to suppress. See State v. Brown, 301 Or. 268, 721 P.2d 1357 (1986).

Defendant also assigns as error that portion of the judgment that imposed a sentence of 130 days incarceration for his theft-related burglary conviction. The written judgment provides for a sentence of 40 months on the arson conviction as the primary sentence; 130 days on the arson-related burglary, to be served concurrently with the arson sentence; 130 days on the theft-related burglary, to be served consecutively to the arson sentence; and 90 days for the theft conviction, to be served concurrently with the theft-related burglary. At the time of sentencing, defendant had already served 130 days in the county jail. The trial court's written order ⁵ provided for credit for time served on the arson conviction, leaving 37 months on the arson conviction and 130 days on the theft-related burglary conviction still to be served.

Defendant argues that, because the theft-related burglary conviction runs consecutively to the arson sentence, it must be served in prison, OAR 253-12-020(2)(d), and that the maximum term of incarceration pursuant to OAR 253-05-007 and OAR 253-04-001(2) is 90 days. The state argues that the 130-day sentence was in fact a departure sentence and, pursuant to State v. Orsi/Gauthier, 108 Or.App. 176, 813 P.2d 82 (1991), and State v. Drake, 113 Or.App. 16, 832 P.2d 44 (1992), the defendant must have objected during the sentencing in order to preserve a claim of error. Although the state did request a departure sentence for the arson conviction, the trial court made no findings on the record, pursuant to ...