State v. Lavender , 93 Or. App. 361 ( 1988 )

ROSSMAN, J.,

dissenting.

The only question presented in this case is whether Officers Newell and Churma had probable cause to believe that a new crime was being committed in their presence. Because I believe that they did, I respectfully dissent.

The test for probable cause

“is what a [reasonable] officer actually believed, based upon the underlying facts of which he was cognizant, together with his own training and experience.” State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986).

On the basis of his extensive experience in drug work, Churma concluded that defendant was under the influence of either methamphetamine or cocaine at the time of the arrest. Further, the officers were aware that felony warrants on charges of possession of methamphetamine had been issued for defendant. Given those facts, it was reasonable for the officers to believe that defendant quickly withdrew her open purse, from their view because it contained a controlled substance. Having probable cause to believe that a crime was being committed in their presence, the officers were justified in arresting her and searching her purse for evidence thereof.

The Oregon Constitution protects citizens against unreasonable searches and seizures. It is true that none of the facts on which the officers relied, taken alone, justified searching defendant’s purse. Viewing the sequence of events and surrounding circumstances in their totality, however, the officers reasonably believed that defendant was in possession of a controlled substance. I therefore see no purpose in suppressing the evidence gained by their search of the purse. Accordingly, I would reverse.

Richardson, Van Hoomissen and Deits, JJ., join in this dissent.