State v. Gotham

DE MUNIZ, J.

Defendant appeals his conviction for possession of a controlled substance. ORS 475.992(1). He assigns as error the trial court’s denial of his motion to suppress evidence and its response to a question from the jury. We affirm.

We take the facts from the trial court’s findings, which are supported by the evidence. Officer Berg saw defendant behind the wheel of a pickup that was blocking a sidewalk. He was revving the engine, which resulted in a large amount of noise and smoke. When Berg approached him, defendant left the pickup and walked down the sidewalk. When Berg ordered him to stop, defendant sat down on the sidewalk. Berg asked him what he was doing, and defendant responded, “It doesn’t matter anyway. I’m going to die. ” Berg observed that defendant’s eyes were watery and bloodshot and that there was a strong odor of alcohol about him. When Berg asked for his license, he responded that it was suspended. Berg asked what he was doing to the pickup. He answered that he had been driving 80 miles per hour and “dropped the transmission.” He also volunteered, “I’m a drug user. I’m going into treatment next week.”

Berg placed defendant under arrest and patted him down for weapons. In the front pocket of defendant’s jeans, Berg found a small, round container. He removed it from defendant’s pocket and saw that it was opaque, made of brown plastic and measured about half an inch deep and an inch in diameter. Berg testified that he could not see into the container, but he suspected that it. contained drugs. He opened it¹ and found a substance that he suspected was tar heroin. It was later tested and found to be heroin.

Defendant moved to suppress the heroin. The trial court denied the motion, concluding that Berg had found it during a lawful search incident to his arrest of defendant for driving under the influence of intoxicants (DUII). Defendant was convicted in a jury trial.

Defendant argues that the seizure and opening of the container was not based on a lawful search incident to arrest and, even if it was, Berg lacked probable cause to open it. We disagree. Defendant does not dispute that Berg had probable cause to arrest him for DUII. Accordingly, he was authorized to search defendant incident to that arrest, so long as the search was reasonable in time and space, and was either for evidence of the crime prompting the arrest, to prevent the destruction of evidence or to protect the arresting officer. State v. Caraher, 293 Or 741, 759, 653 P2d 942 (1982); State v. Boyd, 101 Or App 649, 652, 792 P2d 462 (1990).

The odor of alcohol from defendant, his bloodshot and watery eyes, and the spinning tires gave Berg probable cause to believe that defendant was driving under the influence of intoxicants. Berg testified that he did not know whether the intoxication was the result of alcohol, drugs or both. He testified that he initiated the pat down for weapons but that, when he felt the container, he suspected it contained drugs. In the light of Berg’s training and experience, defendant’s statement that he was a drug user and his bizarre behavior, that suspicion was reasonable.

In State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986), the police, during a search incident to arrest, opened and examined the contents of two closed containers, one transparent, the other opaque. With respect to transparent containers, the court held:

“Transparent containers (such as clear plastic baggies or pill bottles) announce their contents. [Consequently,] no cognizable privacy interest inheres in their contents.” 302 Or at 206.

In contrast, the court recognized a privacy interest in opaque containers that do not “announce their contents.” Accordingly, the court held:

“[T]he Oregon Constitution authorizes the meticulous investigation of closed containers * * * found on or immediately associated with the arrestee, but only when it is reasonable to believe that evidence of a crime for which the person was arrested could be concealed there.” 302 Or at 202.

Berg had probable cause to arrest defendant for driving under the influence of intoxicants.² He reasonably believed that the opaque container held a controlled substance that would be evidence of the offense for which Berg had arrested defendant. Opening the container was lawful, as part of a search incident to arrest. State v. Owens, supra, 302 Or at 205; see also State v. Eddy, 107 Or App 489, 492, 812 P2d 42 (1991). The motion to suppress was properly denied.

Defendant argues that the trial court’s response to a question from the jury was an improper comment on the evidence in violation of Article I, section 16, of the Oregon Constitution³ and ORCP 59E.⁴ Defendant also argues that the trial court abused its discretion under ORCP 59D.⁵ During its deliberations, the jury sent these questions to the court:

“One, what is the definition of possession of a controlled substance? Two, does the term ‘illegal search and seizure’ affect this charge? Does the jury have a right to consider this in their deliberation?”

The trial court re-instructed the jury on the definition of possession of a controlled substance. It did not directly answer the “illegal search and seizure” question. It answered the last question, “No.” Defendant argues only that the court erred when it answered the last question. We disagree.

Defendant challenged the legality of the search and seizure in his motion to suppress. That was a question for the trial court to decide, not the jury. ORS 136.310; ORS 136.320; see State v. Hawk, 38 Or App 117, 119, 589 P2d 1136, rev den 286 Or 303, appeal dismissed 444 US 921 (1979). The trial court’s negative response to the question did not comment on any evidence or restrict the jury from considering any evidence that was relevant to any issue properly before it. There was no error.

Affirmed.

1 Before Berg opened the container, he asked defendant if he could open it. Although defendant responded affirmatively, the trial court found that he did not consent to the search.

2 ORS 813.010(1) provides:

“A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:

“(b) Is under the influence of intoxicating liquor or a controlled substance; or

“(c) Is under the influence of intoxicating liquor and a controlled substance.”

3 Article I, section 16, provides, in part:

“In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.”

4 ORCP 59E, which applies to criminal trials pursuant to ORS 136.330, provides:

“The judge shall not instruct with respect to matters of fact, nor comment thereon.”

5 ORCP 59D, which applies to criminal trials pursuant to ORS 136.330, provides:

“After retirement for deliberation, if the jury requests information on any point of law, the judge may require the officer having them in charge to conduct them into court. Upon the jury being brought into court, the information requested, if given, shall be given either orally or in writing in the presence of, or after notice to, the parties or their counsel.”