State v. Williams

• Citation: 48 Or.App. 293,616 P.2d 1178
• Decision Date: 22 September 1980
• Docket Number: No. 25760,25760
• Parties: STATE of Oregon, Appellant, v. Roy WILLIAMS, Respondent. ; CA 16573.
• Court: Court of Appeals of Oregon

Page 1178

616 P.2d 1178

48 Or.App. 293

STATE of Oregon, Appellant, v. Roy WILLIAMS, Respondent.

No. 25760; CA 16573.

Court of Appeals of Oregon.

Argued and Submitted June 23, 1980.

Decided Sept. 22, 1980.

Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for appellant. On the brief were James M. Brown, Atty. Gen., Walter L. Barrie, Sol. Gen., and Jan P. Londahl, Asst. Atty. Gen., Salem.

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

Before JOSEPH, P. J., and WARDEN and WARREN, JJ.

JOSEPH, President Judge.

Defendant was indicted for possession of a controlled substance. ORS 475.992(4). The state appeals from an order granting defendant's motion to suppress evidence obtained in a warrantless search of defendant's cassette tape case located in a vehicle owned by another person who consented to a search of the vehicle. In his motion defendant made three assertions: 1) the search was the product of an illegal stop; 2) the search which followed the stop was invalid as a warrantless search without probable cause; and 3) the search was constitutionally defective as a consent search.

The trial court found that defendant had standing to object to the search and that there was a valid stop, but

"(u)nder these facts and despite the good faith but mistaken belief by the officer that he had consent to search the tape case, on balance, the defendant's reasonable expectation of privacy outweighs the right of the officer to search a closed container within the vehicle pursuant to the scope of consent given by the driver." (Emphasis in original.)

The Redmond police were requested by the Lincoln City police to contact two individuals in a tan van who allegedly had drawn a gun and threatened a person in Lincoln City. A Redmond police officer observed a tan van in a supermarket parking lot with two of the occupants, the defendant and the driver of the van, fitting the descriptions he had been given by the Lincoln City police. The officer turned on his flashing red lights and approached the vehicle.

Defendant was sitting in the front passenger seat; the driver/owner was standing outside the van. The officer spoke initially with the owner. The four other passengers, including defendant, remained inside the van. The officer discussed the information he had received from Lincoln City and asked the driver whether he had a gun. The driver told him that they had been in Lincoln City and had been involved in some altercations and that defendant had the gun, but that it was not in the van. The officer asked if he could search the van, and the owner responded, "Yeah, go ahead. There isn't nothing in there."

When the owner gave permission to search the van, defendant and the other passengers were still inside. Defendant was not aware that the owner had consented to a search. When the search began, defendant got out of the van and stood near the passenger front door. The front passenger side of the van was searched first. The officer then opened the side doors of the van and searched the back area where he observed a closed and latched stereo cassette tape case about 13 and 1/2 inches long, 10 inches wide and 6 inches deep on the floor of the right side of the van. It was behind the passenger seat where defendant had been sitting, near a pair of boots and a shirt. It was later learned that defendant owned all of those articles. The officer opened the tape case and found six baggies of what he believed to be marijuana. Defendant did not see the officer search the case, and no objection to the search of the van or the tape case was made by defendant or anyone else.

The state maintains that the search of the tape case was justified by the consent of the owner of the van to search the van. We disagree and affirm the order of suppression.

A search and seizure conducted pursuant to voluntary consent remains one of the "few specifically established and well-delineated exceptions" to the fundamental rule that a search conducted without a warrant is "per se unreasonable." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). A consent to search which is effective to validate a warrantless search may be given by a person other than the subject of the search (Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)), but a third party consent is valid only where that person had authority to give it. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

It is well established that a consent to search is valid if made by one who has

" * * * common authority over, general access to, or mutual use of the place or...