State v. Anfield , 100 Or. App. 692 ( 1990 )

NEWMAN, J.

Defendant appeals two convictions for possession of a controlled substance. ORS 475.992.¹ He assigns as error that the court denied his motion to suppress evidence obtained from him. We affirm.

At the suppression hearing, the court either found or could have found these facts. On June 8, 1987, at about 3:00 a.m., Officer Justus responded to a report of an accident in which a car had hit a tree. When he arrived at the scene, he saw another officer conversing with defendant. Defendant claimed that a friend had been driving the car but had left. Defendant was standing at the rear of the car holding a black zippered bag in one hand. He dropped the bag at arm’s length onto the asphalt and walked over to the passenger side to unload the car. Justus thought the bag looked like gun bags that he had seen at a sporting goods store and at the shooting range. The bag appeared to Justus to contain something “real heavy,” because it bent with the weight of its contents. When defendant dropped it on the asphalt, Justus heard a loud metallic “clunk, like, you know, two metal things crashing into each other when it hit the ground.” To Justus, “it sounded like guns * * * like it was metal guns in there.”

Justus lifted the bag a couple of inches off the ground, squeezed it and felt it, because “I was concerned that it had guns in it.” He felt “the outlines of the guns in there.” He unzipped the bag, saw two guns and arrested defendant for carrying concealed weapons. Justus then searched defendant and found in his shirt pocket a bottle of Tylenol with codeine and a small jar of tar heroin. He then searched defendant further, removed his wallet and found more tar heroin.

Defendant argues that Justus made a warrantless, illegal seizure of the bag when he picked it up and squeezed it and that he made an unlawful search when he looked into it. He also asserts that Justus did not have probable cause to arrest defendant for a weapons offense and that, even if the arrest was lawful, his search incident to the arrest was not limited to a search for evidence of the weapons offense for which defendant was arrested.

The court did not err in denying the motion to suppress, in which defendant relied on both Article I, section 9, and the Fourth Amendment. We address the state constitutional issue first. State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983). Under State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987), Justus was entitled to lift and squeeze the bag, because he had acquired a reasonable suspicion, based on specific and articulable facts, that defendant was carrying concealed weapons. In Bates, a police officer stopped the defendant for a Class D traffic infraction, and another officer arrived to give assistance. The officers noticed an object on the floorboard under the driver’s seat and asked the driver, the defendant, to pull it out. When he did not comply, one officer ordered him from the car at gunpoint and then removed the object, a closed black bag. The officer opened it and found ammunition and drugs. He explained that he had removed the bag and opened it, because he was concerned for his safety for these reasons: The vehicle had out-of-state plates; the time was 4:40 a.m.; the area was a “high crime area”; the driver’s appearance disturbed him; there were a VCR and a television set on the back seat; and the driver did not comply with his instructions to remove the object from under his seat. The Supreme Court discounted all the reasons for the search except the presence of the bag.

The officers in Bates testified only that what they saw under the seat appeared to be a bag. They did not testify that they thought the object might be a weapon or a case designed to hold a weapon, and there was no sign of a weapon in the car. The court stated that,

“[w]ithout any indication that the sack either was a weapon or contained one, the officers nonetheless sought to determine its contents.” 304 Or at 526.

The court reversed the denial of the motion to suppress. It held that the specific facts that the officer articulated did not create a reasonable belief that the defendant posed an immediate threat. Accordingly, the officers had no authority in the light of Article I, section 9, to require the defendant to remove the bag from under his seat or to open it. The court stated, however, that Article I, section 9,

“does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawftil encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present.” (Emphasis supplied.) 304 Or at 524.

Here, the specific and articulable facts do support the officer’s reasonable suspicion that defendant posed an immediate threat of serious physical injury to him or his fellow officer and allowed him to take reasonable steps to protect himself and the other officer. Unlike in Bates, Justus identified the bag as a gun bag. Its heavy appearance and the metallic sound that he heard when defendant dropped it made him reasonably suspect that it actually contained guns. It was also reasonable for Justus to be concerned, as he testified that he was, that the bag might contain concealed guns. If the bag contained concealed guns, defendant might pick it up, open it and withdraw the guns. He took a reasonable step to protect himself and his fellow officer from an immediate threat of serious physical injury by lifting the bag and squeezing it to determine whether, in fact, it contained guns. Moreover, unlike in State v. Messer, 71 Or App 506, 692 P2d 713 (1984),² Justus was not engaged in “mere conversation” with defendant but, to use the words of the court in Bates, was engaged in a “lawful encounter”: Justus was investigating an accident that involved defendant, as he had a duty to do.

When Justus lifted the bag and squeezed it, he felt the guns. That gave him probable cause, see ORS 131.005(H),³ to arrest defendant for the offense of carrying a firearm concealed upon the person without a license, former ORS 166.250(1) (b), and to search the bag incident to that arrest. After the search of the bag, Justus arrested defendant for carrying concealed weapons. Defendant argues that probable cause to arrest was absent, because the two guns were in the bag that he had dropped on the ground and, therefore, Justus had no substantial objective basis for believing that defendant had carried the two guns “upon” his person. We disagree. When Justus first arrived at the scene, he saw defendant holding the bag.

Defendant also argues that there was no probable cause to arrest him for a weapons offense, because the officer had no reason to know whether defendant was licensed to carry the guns. The officer, however, had probable cause to arrest defendant, even though he did not know whether defendant had a license. See State v. Gerlack, 87 Or App 184, 186, 741 P2d 926 (1987);⁴ see also State v. Brown, 301 Or 268, 721 P2d 1357 (1986).

Incident to the arrest for carrying concealed weapons, Justus could also search defendant for other weapons. In connection with that search, he discovered the Tylenol with codeine and the small jar of heroin. At that point, Justus could also search incident to an arrest for possession of a controlled substance. State v. Flores, 68 Or App 617, 685 P2d 999, rev den 298 Or 151 (1984). He then found the wallet and could open it. State v. Owens, 302 Or 196, 729 P2d 524 (1986); State v. Caraher, 293 Or 741, 653 P2d 942 (1982). He found more heroin.

Defendant makes no separate argument under the Fourth Amendment.

Affirmed.

1 The court dismissed two counts of unlawful possession of a weapon. ORS 166.250.

2 In Messer, an officer saw two persons sitting in a car parked in a lot late at night and saw a sheathed knife between them. The court held that the officer was not justified in taking steps to protect himself by seizing the knife, because there was no basis for a stop and he could leave the area if he feared for his safety.

3 ORS 131.005(11) provides:

“ ‘Probable cause’ means that there is a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it.”

4 In State v. Gerlack, supra, we held that the defendant had the burden to prove that he had a license to carry a concealed weapon.