State v. Bennett ( 1986 )

JONES, J.

In this case, the state petitions for review from the Court of Appeals decision that affirmed the trial court’s pretrial order suppressing physical evidence discovered in a warrantless search of a car trunk. As in State v. Brown, 301 Or 268, 721 P2d 1357 (1986), the issue is whether, following the arrest of the defendant after he was stopped in his car, the warrantless search of the passenger compartment and trunk of defendant’s car was lawful.

The trial court suppressed all physical evidence discovered during the search of the vehicle. The court thought that our decision in State v. Lowry, 295 Or 337, 667 P2d 996 (1983), required suppression because the officers had time to obtain a search warrant. On appeal, the Court of Appeals held that the search of the interior of the passenger compartment of the vehicle was justified as a search incident to arrest and reversed the trial court as to the evidence thus obtained. 72 Or App 733, 692 P2d 213 (1985). The Court of Appeals held, however, that the search of the trunk and its contents exceeded the permissible scope of a search incident to arrest, and affirmed the trial court as to the suppression of the evidence discovered in the trunk. We conclude that the searches of the passenger compartment and the trunk were lawful. Therefore, we affirm in part and reverse in part.

FACTS

About an hour before defendant’s arrest, a confidential, reliable informant told police that three men were trying to sell about ten pounds of marijuana that they had in their car. The informant described the men and their car and said that he had seen the marijuana in the car trunk.

Police stopped a car matching the informant’s description. Defendant was driving. As Officer Galloway approached the vehicle, he saw defendant in the driver’s seat and asked for his driver’s license and the vehicle registration. Through the open window, Galloway smelled the odor of smoked marijuana and the “very powerful odor of cut marijuana.” The officer was familiar with those odors after ten years of police experience.

Defendant declined Galloway’s request to step out of the car. When Galloway saw defendant reach down for something with his right hand by the side of the seat, the officer, fearing for his own safety, drew his revolver and ordered defendant out of the car. Galloway escorted defendant to the rear of the car and searched him for weapons. Although he found no weapons on defendant’s person, he did feel a bulky object in an upper pocket, which turned out to be a large wad of cash. At Officer Larsen’s request, Galloway then handcuffed defendant and placed him in a patrol car.

Officer Larsen opened the passenger door and removed Mr. Beach. From that point forward Larsen smelled the odor of green marijuana. After placing Beach in Galloway’s patrol car, Larsen spoke with defendant as they stood at the rear of the stopped vehicle. Larsen told defendant that the police had probable cause to believe that he possessed a large quantity of marijuana. Defendant denied that the car contained marijuana and refused consent to search.

At trial when asked why he did not obtain a warrant prior to the stop of the automobile, Officer Larsen replied:

“The automobile was mobile. And with it being mobile, I would not be able to determine where that vehicle was at a latter time. That was upon first observing the vehicle. And then upon stopping the vehicle, that it did not seem reasonable at that time.”

He estimated that it would have taken about four hours to obtain a written search warrant and at least an hour and one-half to obtain a telephonic one.

Larsen began searching the car on the driver’s side, progressed to the back seat, and ultimately searched the trunk. He seized a notebook from the right passenger floorboard. The only closed container in the passenger compartment was a suitcase, and there was some clothing on the back seat. Larsen did not look under the hood, “rip [the car] apart,” or search the glove box. Larsen opened the locked trunk of the car with the keys from the ignition. Inside the trunk he found two military-type footlockers, a brown backpack, two knapsacks, a brown briefcase, a military-style green camouflage bag and a grocery bag.

The footlockers were not locked, but the officers could not see inside them. Officers Larsen and Werner removed the footlockers from the trunk and opened them. Inside were numerous bags of marijuana. Larsen’s search of the closed brown backpack revealed $9,650 in cash.

Officer Werner seized a .22 caliber pistol located in a suitcase on the back seat of the vehicle. She opened the green camouflage bag from the trunk and found marijuana in it. The briefcase was opened; it contained money and identification of defendant. Werner also seized a .45 caliber automatic handgun from the grocery bag in the trunk. She recalled smelling marijuana “in its green form” from the time the car door was first opened. Werner testified that the officers “were searching incident to arrest.”

ANALYSIS

The proper sequence in evaluating any contested governmental intrusion is first to analyze it under state law before reaching a federal law claim. If the conduct is lawful under the state constitution, only then need the federal issues be addressed. See, e.g., State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983); Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981); State v. Scharf, 288 Or 451, 454-55, 605 P2d 690 (1980).

This case is a textbook application of Article I, section 9, of the Oregon Constitution as interpreted in State v. Brown, supra. This was a classic valid warrantless search and seizure of a mobile automobile as set forth in Brown. The search and seizure did not violate the Oregon Constitution.

Furthermore, the search did not violate the federal constitution. United States v. Ross, 456 US 798, 102 S Ct 2157, 72 L Ed 2d 572 (1982). At first blush, the search of the footlockers appears unlawful under United States v. Chadwick, 433 US 1, 97 S Ct 2476, 53 L Ed 2d 538 (1977). In that case the United States Supreme Court suppressed evidence that police obtained through a warrantless search of a footlocker in an automobile trunk. To be sure, the case at bar involves the warrantless search of a footlocker in an automobile trunk. But in both Chadwick and the subsequent case of Arkansas v. Sanders, 442 US 753, 764, 99 S Ct 2586, 61 L Ed 2d 235 (1979), which held that “a warrant generally is required before personal luggage can be searched and that the extent to which the Fourth Amendment applies to containers and other parcels depends not at all upon whether they are seized from an automobile,” probable cause was confined to the container — a footlocker in Chadwick and a green suitcase in Sanders — and not to the entire vehicle. In each case police officers waited until the container had been placed inside a vehicle and then proceeded to make a warrantless search of the container. The temporary presence of the footlocker and the suitcase in the vehicles was fortuitous and did not relieve the officers of the task of obtaining a warrant for the search. They had that duty before the containers were placed in the vehicles. Here, and in Ross, there was no probable cause to search for any particular container within the vehicle. All the officers had probable cause to believe was that ten pounds of marijuana were somewhere in the car. Thus, Chadwick and Sanders are inapposite.

As to the state constitution, State v. Brown would uphold the search as constitutionally valid because a magistrate could have authorized the search of the entire vehicle and its contents. United States v. Ross would do the same under the federal constitution. Therefore, the trial court improperly suppressed the evidence and the Court of Appeals improperly excluded the evidence seized from the trunk of the automobile.

Because we hold that this search was permissible under Article I, section 9, under the automobile exception to the warrant requirement as set forth in Brown, we need not address the constitutionality of ORS 167.247(f)¹ insofar as it can be read to allow such a search absent the stop of a mobile vehicle. In this opinion we do not reach the issue of war-rantless searches of unoccupied, parked or immobile vehicles. Another reason for not addressing the validity of this statute is that it was never relied on as a justification for the search in this case and was not cited by the state on appeal. Since the statute was not raised as a ground for validating the search of defendant’s automobile in the Court of Appeals or in this court, and because the search was otherwise lawful, we do not now address the statute’s constitutionality.

The Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the circuit court.

1 ORS 167.247(1), the portion of the statute which addresses the authority of police officers to search, provides:

“A district attorney or peace officer charged with the enforcement of ORS 167.212 and 167.222, having personal knowledge or reasonable information that controlled substances are being unlawfully transported or possessed in any boat, vehicle or other conveyance, may search the same without warrant and without an affidavit being filed. If controlled substances are found in or upon such conveyance, he may seize them, arrest any person in charge of the conveyance and as soon as possible take the arrested person and the seized controlled substances before any court in the county in which the seizure is made. He shall also, without delay, make and file a complaint for any crime justified by the evidence obtained.”