State v. Tallman , 76 Or. App. 715 ( 1985 )

VAN HOOMISSEN, J.,

dissenting.

I would reverse the trial court’s order suppressing evidence found during the search of defendant’s car. Therefore, I respectfully dissent.

The deputy found a baggie of marijuana on the floor board of defendant’s car. He found a recently smoked water pipe under the front seat. He noted a strong odor of incense and the smell of burnt marijuana. On becoming aware of the deputy’s presence, defendant and his companion made “furtive” movements, as if they were trying to hide something. On that evidence, I would hold that the deputy had probable cause to believe that there was more marijuana in the car. Considering the totality of the circumstances, it was not unreasonable for him to continue searching the interior of the car.

While the explanations and conclusions described in the final paragraph of the majority’s opinion are plausible, they are not the only explanations and conclusions that the deputy could reasonably have drawn. The trial court ruled that the deputy had probable cause to search the car. I agree. He had an objective basis for believing that defendant had more marijuana than that in the baggie and, therefore, he had probable cause to search further. See State v. Anspach, 298 Or 375, 692 P2d 602 (1984); State v. Caraher, 293 Or 741, 653 P2d 942 (1982); State v. Kirsch, 69 Or App 418, 686 P2d 446 (1984); State v. Brody, 69 Or App 469, 686 P2d 451 (1984); State v. Turchik, 53 Or App 499, 632 P2d 497 (1981); State v. Mepham, 46 Or App 839, 613 P2d 500, rev den 289 Or 588 (1980); State v. Krohn, 15 Or App 63, 514 P2d 1359 (1973), rev den (1974).

The majority’s result attributes an intent to the legislature that I do not see in the statutes or in any legislative history cited by the majority. The legislature intended to give users of small quantities of marijuana, less than an ounce, a break. I think that it would be stunned to learn that a majority of this court believes that it intended to give the same concession to people, like defendant, who abuse the law’s leniency.