State v. Tremaine , 56 Or. App. 271 ( 1982 )

BUTTLER, J.,

dissenting.

The court today holds that a police officer who looks through a car window and observes a wine bottle and three beer bottles lying on the floor of a motor vehicle, without observing that any of the bottles contained anything, or that any of them was open, may, without a warrant, break into the locked vehicle to conduct a search. So far as I know, there is nothing unlawful in having in an automobile empty liquor bottles or, for that matter, full ones that have not been opened or had the seal broken. See ORS 487.843.¹ Because I believe the warrantless search, on those limited facts, was unreasonable, I would affirm the suppression order. Accordingly, I dissent.

The only way one may make an arguable case that the officer had sufficient information to support a finding of probable cause is to couple his plain view of the bottles with the information, previously obtained from defendant impermissibly, that he was running from the police because he had been drinking in the van. Although the majority recognize, as did the trial court, that defendant’s “custodial confession taken without a waiver of his Miranda² rights” (56 Or App at 275) was not admissible, they say that if the trial court believed Officer Johnston’s testimony that he saw the “bottles in plain view from a lawful vantage point outside the van” (56 Or App at 275-6), that testimony would satisfy the requirement of “probable cause to search the van to seize the evidence he saw.” (56 Or App at 276.) Having said that, however, the majority drop a footnote which says that, “Johnston’s testimony, standing alone, may not establish that the bottles were open.”

The majority, the trial court and I are in agreement that the statement impermissibly obtained from defendant may not be used to determine the existence of probable cause. Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441 (1963). That leaves only Johnston’s testimony. The mere fact that he saw the bottles did not rise to the level of probable cause to believe that defendant had violated the so-called “open container” law (see n 1, supra). That law only makes it unlawful to have present in a vehicle “* * * any bottle * * * containing any alcoholic liquor, which has been opened, or a seal broken, or the contents of which have been partially removed, * * The record is devoid of any evidence that any of the bottles appeared to fall within any of the statutory proscriptions.

Because the officers did not have probable cause³ to believe that defendant had violated the “open container” law, the only justification the state advances for the search, the officers had no valid basis to search the van without a warrant.

The trial court order suppressing the evidence should be affirmed.

1 ORS 487.843(1) provides:

“It is unlawful for the registered owner of any motor vehicle, or the driver if the registered owner is not then present in the vehicle, to keep in a motor vehicle when the vehicle is upon any highway, any bottle, can, or other receptacle containing any alcoholic liquor, which has been opened, or a seal broken, or the contents of . which have been partially removed, unless the bottle, can, or other receptacle is kept in the trunk of the vehicle, or kept in some other area of the vehicle not normally occupied by the driver or passengers if the vehicle is not equipped with a trunk. For the purposes of this section, a utility compartment or glove compartment is considered within the area occupied by the driver and passengers. This section shall not apply to the living quarters of a camper or a motor home.”

2 Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966).

3 The majority comment (56 Or App at 276, n 4) that defendant “seems to concede” that the officers had probable cause to search the van, but, appropriately, do not rely on the concession. It appears that defendant misread the record, believing it showed that the officers saw burglar’s tools through the van window. His principal reliance is on the “poisonous fruit” contention.