State v. North

BUTTLER, J.

Defendant appeals his conviction for possession of a controlled substance, ORS 475.992, claiming that the evidence against him was obtained as a result of two illegal stops and an illegal seizure of his luggage. He contends that his initial encounter with the police was an unlawful stop, that the subsequent Stop of his vehicle was unlawful and that the war-rantless seizure of his luggage was without probable cause. We affirm.¹

The facts are not in substantial dispute. Defendant flew from Eugene to Los Angeles (a city known to the Drug Enforcement Administration as a “source” city through which cocaine is distributed nationwide) on November 9, 1981, and returned to Eugene the following day. Two police officers, who had been on the same flights to Los Angeles and back to Eugene transporting a prisoner, contacted Officers Wilson and Tindall, who were on narcotics detail at the airport. They reported that defendant went to the restroom several times and looked nervous on the return flight, implying that he fit the profile of a narcotics transporter.

Wilson and Tindall watched defendant while he waited for his luggage. Tindall testified that he observed defendant scanning the crowd, looking around, appearing nervous and smoking two or three cigarettes in the ten minutes before his luggage arrived. When the luggage appeared, defendant picked up two attache-type suitcases and proceeded out of the airport at a “pretty fast pace,” turning around on several occasions in what appeared to the officers to be attempts to see if anyone was following him.

The officers approached defendant in the airport parking lot as he was in the process of loading his luggage into his van. They identified themselves, displayed their badges and asked if they could talk with him. Defendant responded affirmatively. They then asked for his identity and questioned him about his recent flight and final destination. When asked his name, defendant stated that he was “Bill Nixon” and displayed a one-way ticket from Los Angeles in that name. He denied ownership of the vehicle he was loading, declined to display its registration and said that it had been loaned to him by a friend, “Bill Johnson,” whose exact address he did not provide. When asked for identification, defendant denied that he had any, including a driver’s license. When the officers pointed out defendant’s visible wallet, he stated, “All I have is bucks,” and declined to show it. When asked if the luggage contained narcotics, defendant responded negatively. When the officers asked if they could look, defendant stated, “I don’t think you need to.”

Tindall testified that defendant was extremely agitated during this contact. In fact, he was more nervous than anyone he had contacted under similar circumstances. Both Tindall and defendant testified that, when defendant asked twice if he could leave, he was told that he could do so. Between five and ten minutes after the initial encounter, defendant did leave the airport parking lot and was not restrained in any way from doing so.

After defendant left the airport, the officers checked his parking ticket and found that his van had been parked in the airport parking lot the day before, which was inconsistent with what defendant had told them, but consistent with the other two officers’ report that defendant had left Eugene the day before. Wilson and Tindall ran a license check on the vehicle and found that it was registered to Robert North, who fit the description of defendant. The officers concluded that defendant had not been truthful with them, and they followed him after he left the airport.

Tindall testified that, as they followed defendant down the highway, he failed to stop at a stop sign and nearly collided with a cattle truck. He did not turn onto a freeway ramp that the officers felt would be appropriate for his stated destination, Gold Hill. Given defendant’s conduct and the information the officers had acquired from him and the other sources, they radioed a marked Springfield police car to stop defendant’s van. Just before the stop, Tindall and Wilson were advised that the owner of the van, Robert North, had a “cultivation case from Jackson County on his record.” The Springfield police officers requested that defendant produce his driver’s license. Defendant complied, revealing his true identity as Robert North. He was again questioned by Wilson and Tindall.

Tindall asked defendant why he had lied about his name at the airport. The officer testified that he thought that defendant’s response was that he suspected the contact might have been a “ripoff.” Tindall understood that response to be slang for theft of drugs or money from a drug transaction. The Springfield police officer had defendant do some field sobriety tests, and Tindall advised defendant that they were going to “seize” his luggage. Although there is conflicting testimony as to defendant’s response, the state does not rely on his consent.

The officers seized the luggage and took it to the Hillsboro Police Department, where a police dog “alerted” on both pieces, indicating that they contained contraband. The following day, a search warrant was issued and the bags were searched. A quantity of cocaine was found. Defendant was charged with one count of unlawful possession of a controlled substance. At trial, he moved to suppress, claiming that: (1) the initial stop at the airport by the officers was not reasonable; (2) the stop of his vehicle on the highway was without “probable cause”; and (3) the seizure of defendant’s luggage was without probable cause. The trial court denied the motion, ruling that the airport questioning was not a stop, that the vehicle stop by the Springfield police was reasonable and that there was probable cause after the stop to believe that defendant’s luggage contained a controlled substance, justifying seizing the luggage. Defendant appeals, claiming that the court erred in denying his motion to suppress for the reasons stated above.

We agree with the trial court that the initial encounter was not a stop within the meaning of ORS 131.605(5). Defendant was at his van in the parking lot when the officers approached him, identified themselves and asked if they could talk to him. He said they could. It was closely akin to the third category of encounters described in State v. Warner, 284 Or 147, 161, 585 P2d 681 (1978). There was no effort to restrain defendant’s freedom of movement, and he was told when he asked that he was free to leave. What occurred here seems to come within the dictum in State v. Kennedy, 290 Or 493, 498, 624 P2d 99 (1981):

“It is clear, however, that a police officer may approach a citizen, identify himself as an officer and ask some preliminary questions without making a ‘stop.’ * * *.”

Accordingly, there was no “stop,” and all of the information that the officers possessed by the time they stopped defendant’s van was obtained lawfully.

Defendant contends that the stop of his van in Springfield was tainted by the earlier encounter at the airport and that the officers “did not have probable cause to make the stop of his vehicle.” Because ORS 131.615 requires only that an officer reasonably suspect that a person has committed a crime before stopping and detaining him, defendant’s probable cause argument is irrelevant. The police did have a reasonable suspicion. The error assigned, therefore, is without merit.

Defendant’s final challenge to the trial court’s ruling on his motion to suppress is that the warrantless seizure of the luggage from his vehicle following the stop was unlawful for want of probable cause to do so. He does not challenge the lawfulness of the later “dog sniff’ inspection of the luggage or the length of its detention for that purpose. See United States v. Place, 462 US 696103 S Ct 2637 77 L Ed 2d 110 (1983); State v. Lowry, 295 Or 337, 667 P2d 996 (1983). Accordingly, we consider only whether there was probable cause to “seize” the luggage from his van.

By the time the officers decided to “seize” the luggage, they knew that defendant had traveled to and from Los Angeles, a city known to be a “source” city through which cocaine is distributed nationwide. During their initial encounter with him, defendant had lied about the duration of his trip, his identity, ownership of the van and his not having a driver’s license, and the officers had found out that he had lied about those things. He refused to show them the registration for the van. He was not only very nervous, but was exceptionally agitated during that encounter, and on leaving the airport he drove through a stop sign and nearly collided with a cattle truck. The officers had also learned that defendant had been arrested for “cultivation” in Jackson County. Although defendant had told the officers that he was going to a basketball game in Gold Hill, he drove past the appropriate freeway turnoff for that destination.

After defendant was stopped by the Springfield police officers, he showed them an Oregon driver’s license in his true name. When Tindall asked defendant why he had lied to him earlier, defendant stated that he feared a “ripoff,” even though the two police officers had identified themselves and displayed their badges. When defendant was asked to whom the luggage belonged, he stated that it was not his, that he was to deliver it to someone who lived up the McKenzie River. Tindall testified that, in his experience, large quantities of narcotics normally are transported in luggage rather than on the person.

Accordingly, we conclude that the officers had sufficient information to lead them, as reasonable persons, to believe that defendant possessed a controlled substance, State v. Anspach, 298 Or 375, 692 P2d 602 (1984), and because he was not then arrested, there was practical necessity, or exigent circumstances, for taking possession of the luggage without a warrant for a sufficient period of time to permit its contents to be verified by a “dog sniff’ and to obtain a search warrant. State v. Lowry, supra. After the “dog sniff’ verified that the contents of the luggage were controlled substances, the officers obtained a search warrant to search the luggage. Defendant challenges only the warrantless “seizure” of the luggage, not the length of its detention for purposes of the “dog sniff’ or the lawfulness of the search of the luggage pursuant to search warrants.

Affirmed.

1 Defendant also claims that a jury instruction given by the trial judge was erroneous. We do not address the issue, because the claimed error was not preserved in the trial court.