State v. Tremaine, 80-4363-C-2

• Decision Date: 08 March 1982
• Docket Number: No. 80-4363-C-2,80-4363-C-2
• Citation: 641 P.2d 637,56 Or.App. 271
• Parties: STATE of Oregon, Appellant, v. Kenneth Edward TREMAINE, Respondent. ; CA A20370. *
• Court: Oregon Court of Appeals

Page 637

641 P.2d 637

56 Or.App. 271

STATE of Oregon, Appellant, v. Kenneth Edward TREMAINE, Respondent.

No. 80-4363-C-2; CA A20370.

Court of Appeals of Oregon, In Banc ^*.

Argued and Submitted July 10, 1981.

Resubmitted In Banc Feb. 4, 1982.

Decided March 8, 1982.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Marilyn C. McManus, Deputy Public Defender, Salem, argued the cause for respondent. With her on the brief was Gary Babcock, Public Defender, Salem.

GILLETTE, Judge.

Pursuant to ORS 138.060(3), the state appeals from a pre-trial order suppressing evidence found during a warrantless search of defendant's motor vehicle. We reverse.

Shortly after midnight on December 4, 1980, police officers Jones and Johnston, driving separate patrol cars, responded to an emergency call at the Minute Market in Phoenix, Oregon. Discovering no emergency there or at the Budget Truck Stop, the only other local all-night business, the officers suspected that the emergency call was actually a "set-up" for a burglary elsewhere. They began checking the area for suspicious activity.

As Jones drove past a business known as Southern Oregon Color Processing, he noticed a dark van parked near the front door. The firm usually had a porch light burning at night, but that night it did not. Because the police were usually notified when someone was legitimately in the building at that time of night, Jones radioed Johnston to check the front of the building while he checked the rear. As Johnston approached, his headlights illuminated the van, and he could see defendant sitting behind the wheel. Defendant looked at Johnston, back at the door of the building and then again at Johnston. Johnston could see another man, dressed in dark clothing, outside the van and moving toward the front door of the building. Jones then pulled up behind the van. Defendant drove off "in a very hurried manner," with Jones in pursuit. Johnston looked again for the other man but could not see him.

Defendant's van ran a stop sign, traveled about two blocks, turned into a motel parking lot and narrowly missed a telephone pole before coming to a sudden stop. Defendant jumped out of the van and took off running. He finally stopped after Jones' third order to halt. He was handcuffed, put under arrest for attempting to elude a police officer and then asked why he ran. Defendant answered that he had been drinking in the van, the doors of which, the officers then discovered, were closed and locked. Defendant claimed not to know where the keys were. After he was searched and the keys were not found, he was placed in a patrol car.

The officers could see through the windows that the van was full of clothes but, according to one of them, "didn't think a whole lot about it at the time," because it was a "live-in type" van. They checked the immediate area "real quickly" to try to find the other man who had been seen near the building. Unsuccessful in that, they returned to the van and proceeded to open it with a coat hanger.

Officer Johnston testified that he saw a wine bottle and three beer bottles through the window of the van before the attempt to enter the van with the coat hanger. However, he did not say whether the bottles were open, empty or filled. Jones testified he went into the van in order "to check for an open container because that is the reason (defendant) said that he ran." Jones said that, once inside the van, he saw

" * * * a wine bottle laying tipped over with the cap off in the front seat by the gas pedal, (and) three beer bottles had rolled out from between the seats."

In looking to see if there was anything else between the seats, he noticed a prybar and a crowbar sticking out of an open, large, green, cloth duffel bag. He pulled out the bag and found it also contained a drill, saws, a bolt cutter and a large screwdriver. He then advised defendant he was under arrest for possession of burglar's tools and read him his Miranda ¹ rights.

Jones testified that he decided to impound the vehicle, called for a tow truck and, in beginning an "inventory," discovered that the clothes, piled two to three feet deep, had price tags from the Craft Guild, an Ashland store, still attached. He then radioed the Ashland police, who confirmed that there had been a burglary at the Craft Guild and dispatched an officer to the motel parking lot. Jones said:

" * * * (W)e just closed the door to the van and waited till he got there. We were just going to let him decide if he wanted to impound the vehicle at Ashland to obtain a search warrant to try to check it out for anything else."

Defendant was subsequently charged with burglary in the first degree.

In granting defendant's motion to suppress the evidence found in the van, the trial court stated:

" * * * The fact of the matter is, as I see it, and looking at the opinions handed down by the various Appellate Courts, the big problem is what authority the officers then had to go into this vehicle. (Defendant) is now in custody. It can be assumed that he's going to be detained. The vehicle can be placed in custodial protection by the officers if there's reason to feel that it should be searched. The big problem is what was their authority to then make a search of the vehicle without a warrant authorizing them to do so.

"The Court of the State has said that even had they made a warrantless search of a vehicle and found a fishing tackle box in there unlocked, they had no right to open it and search for contents without a warrant to do so, search warrant. If that is the law, and I understand that is the law, then if I correctly interpret what our Courts are saying, there's all the more reason, when this was completely locked, the whole vehicle, why an officer should not make a search without getting a warrant. There's nothing to indicate that a warrant could not be obtained. There's nothing to indicate that the officers could not have kept this vehicle in protective custody pending obtaining such a warrant." (Emphasis supplied.)

The state and defendant both assume, incorrectly, that the trial court's order was based upon its conclusion that the evidence seized was the "fruit" of defendant's custodial confession taken without a waiver of his Miranda rights. ² See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Garrison, 21 Or.App. 155, 534 P.2d 210, rev. den. (1975). The state contends that the trial court ignored Johnston's testimony that he saw the wine and beer bottles in plain view from a lawful vantage point outside the van. ³ According to the state, this testimony, if believed by the trial court, would satisfy one exception to the "fruit of the poisonous tree" doctrine and justify the warrantless search of defendant's van. We do not agree that any "exception" to the "fruit of the poisonous tree" doctrine is applicable here.

Our ultimate problem with this case is this: the trial judge did not specifically rule upon whether or not he believed Johnston's testimony. To the trial judge, suppression was justified because the van was itself a "closed container" which could only be searched with a warrant. As explained below, we reject that analysis. As we view the case, Johnston's testimony is pivotal-if it is believed, the trial judge's order was incorrect; otherwise, it was correct.

Our concern may be illustrated this way: when Johnston arrived at the motel, defendant had already fled, been apprehended and been brought back. He was charged, appropriately, with attempting to elude a police officer. One who attempts to elude normally does so for a reason. Jones sought the reason impermissibly, by interrogating defendant without advising him of his rights. Johnston sought the reason legally, by looking into the locked van from outside. The court's concern that this was a "closed container" was misplaced-this was a locked automobile, subject to search pursuant to well-established principles having nothing directly to do with the "closed container" rule.

What Johnston says he saw in the van, i.e., the bottles, would be admissible evidence of either the crime of attempting to elude (as evidence of motive) or possession of an open container (as evidence of that crime itself). Johnston, if believed, therefore had probable cause to search the van to seize the evidence he saw. ⁴ We also think he had probable cause to do so without a warrant, although the justification for that view is not as easy to reach as the state's brief suggests.

Assuming arguendo that Officer Johnston saw open containers ⁵ through the window of the van, the search cannot be justified by the "plain view" rule standing alone. While objects falling in the plain view of an officer who has a right to be in a position to see them are subject to seizure, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), that is not true when an intrusion into a constitutionally protected area must be made in order to make the seizure. State v. Frink, 42 Or.App. 171, 600 P.2d 456 (1979); State v. Drouhard, 31 Or.App. 1083, 572 P.2d 331 (1977), rev. den. (1978). Although there is a lesser expectation of privacy in an automobile than in a home, South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), an automobile is nonetheless afforded Fourth Amendment protection from unreasonable searches and seizures. See, e.g., Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Fondren, 285 Or. 361, 591 P.2d 1374 (1979). Moreover " * * * (P)lain view alone is never enough. * * * (N)o amount of probable cause can justify a warrantless search or seizure absent 'exigent circumstances.' " (Emphasis supplied.) Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The "plain view" doctrine, in other words, may...