State v. Stacey , 17 Or. App. 662 ( 1974 )

523 P.2d 612 (1974)

STATE of Oregon, Appellant,
v.
David LeRoy STACEY, Respondent.

Court of Appeals of Oregon.

Argued and Submitted May 20, 1974. Decided June 17, 1974. Rehearing Denied July 17, 1974. Review Denied July 30, 1974.

Timothy Wood, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

John K. Hoover, 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 LANGTRY and THORNTON, JJ.

SCHWAB, Chief Judge.

Defendant was indicted for theft in the first degree, ORS 164.055(1)(d). A motion to suppress evidence, a pistol, was allowed by the circuit court. The state appeals from the order of suppression.

The evidence introduced at the suppression hearing was that during the early morning hours of July 23, 1973, a deputy sheriff from the Multnomah County sheriff's office recieved a call on his radio about a possible theft from a vehicle. When he reached the area, he was informed by two witnesses that they had seen a person carrying something across the parking lot of an automobile dealer. One of the witnesses pointed out a van that was parked in the dealer's lot, indicated that it had not been there a few minutes before and that he had seen the person in question near the van. The officer walked up to the van and noted that the door on the driver's side was slightly ajar. It is conceded that when he looked through this opening into the van, he saw a cellophane bag behind the driver's seat that he believed, through his training and experience, contained marihuana.

The officer then looked through the window of the van toward the back of the vehicle and saw numerous tapes and a tape deck. He then went over to the side door of the van, opened it, and looked inside. The stated purpose of this search was to find more narcotics, unreported stolen property, or property that had already been reported stolen.^[1]

During this search he found clothing that contained something wrapped up inside of it, which proved to be a box containing a.38 calibre pistol which had been reported stolen earlier. The pistol is the basis of the theft indictment.

The discovery of the marihuana in plain view behind the driver's seat provided probable cause to search the vehicle for more narcotics. State v. Krohn, Or. App., 97 Adv.Sh. 1959, 514 P.2d 1359 (1973), Sup.Ct. review denied (1974); State v. Keith, 2 Or. App. 133, 465 P.2d 724, Sup.Ct. review denied (1970). The late hour, the mobile nature of the van and the probable presence of the driver in the vicinity justified the failure to obtain a warrant. Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, reh. denied 400 U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1970); State v. Krohn, supra; State v. Poole, 11 Or. App. 55, 500 P.2d 726, Sup.Ct. review denied (1972); State v. Keith, supra. Since the stolen revolver was discovered during the legal search for narcotics, it is properly admissible into evidence and should not have been suppressed. State v. Elk, 249 Or. 614, 439 P.2d 1011 (1968); State v. Emfinger, 6 Or. App. 328, 487 P.2d 1393 (1971); State v. Keith, supra.

Reversed and remanded.

NOTES

[1] Unlike the situation in State v. Keller, 265 Or. 622, 510 P.2d 568 (1973), this was not an inventory of the contents of a previously impounded vehicle.