State v. Wallace

• Decision Date: 16 May 1977
• Citation: 29 Or.App. 429,563 P.2d 1237
• Parties: STATE of Oregon, Appellant, v. Eddy Allen WALLACE, Respondent.
• Court: Oregon Court of Appeals

Page 1237

563 P.2d 1237

29 Or.App. 429

STATE of Oregon, Appellant, v. Eddy Allen WALLACE, Respondent.

Court of Appeals of Oregon.

Argued and Submitted April 25, 1977.

Decided May 16, 1977.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Before SCHWAB, C.J., and THORNTON and TANZER, JJ.

THORNTON, Judge.

The issue presented in this appeal is whether the trial court erred in allowing defendant's motion to suppress a quantity of hashish seized from the defendant's person at the time of his arrest.

The essential facts are as follows:

On the evening of September 28, 1976, the manager of a Eugene theater received a complaint from an unidentified patron that some young persons were smoking marihuana and drinking beer in the audience portion of the theater. The patron insisted that the manager call the police. After telephoning the police the manager went back to the lobby and was informed by the complaining patron that the individuals involved were in the theater's restroom. The manager waited for them and was talking with them when Officer Guy of the city police arrived. The manager told the officer that a patron had complained that the three young men, one of whom was later identified as the defendant, had been drinking beer and smoking inside the theater. The officer then started talking with the three suspects and asked them if they had any marihuana on them. The response from each of them was, 'No.'

As the officer talked to defendant he smelled a strong odor of burned marihuana, but could not determine whether it came from defendant particularly because the odor seemed to emanate from all three persons. The officer testified that he could see a 'little lump' in the defendant's pocket and he asked defendant what was in the pocket. The defendant answered, 'Nothing.' The officer then reached into the pocket and extracted a small plastic bag which he believed to contain marihuana because of the type of package but which was ascertained later to be hashish. When the officer extracted the plastic bag, defendant pushed him backward and an altercation ensued which was not abated until a second officer arrived and helped subdue defendant. After defendant was booked a small quantity of marihuana was found on his person.

The state's evidence established that the arresting officer was trained and experienced in drug enforcement, including the recognition of the smell of burned marihuana.

The trial court suppressed the seized hashish because:

'6. The Court finds that the officer could have investigated further; he could have told * * * (defendant) to sit down and could have inquired further.

'7. Upon the facts available to the officer considering the time, the place and the information which he had, the acts of reaching into * * * (defendant's) pocket and of attempting to take and/or taking something out of that pocket were...