State v. Bucholz

De MUNIZ, J.

Defendant appeals his conviction for unlawful possession of a controlled substance. ORS 475.992. He claims that the trial court erred when it denied his motion to suppress evidence found during a warrantless search of a backpack. We reverse and remand.

In reviewing the lawfulness of a warrantless search, we are bound by the trial court’s findings of historical facts, if they are supported by the evidence. State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991). While on patrol, Officer Barrong saw a car that was emitting visible exhaust. The driver did not signal before turning into the parking lot of a grocery store. Barrong stopped the car and asked the driver for her license and registration. She told him her name, but said that she did not have her license with her. Defendant, who was seated in the front passenger seat, told the officer that the car belonged to defendant’s father. Neither the driver nor defendant produced the vehicle registration certificate. Barrong noticed a backpack on the floor near Knight, a passenger in the back seat. He asked whose it was, but no one answered. Barrong asked if he could look in the backpack, “thinking maybe the vehicle registration was in it.” Knight handed the pack to Barrong, and nobody in the car objected. Barrong took the pack, went back to his patrol car and ran name checks on the occupants of the stopped car. He then looked in the pack and found drug paraphernalia, including a cotton ball that later tested positive for methamphetamine. He also found a wallet that belonged to defendant.

Defendant concedes that Barrong lawfully stopped the car in which defendant was a passenger. The officer could see exhaust emissions, and the driver had failed to signal before turning into a parking lot.¹ When an officer makes a lawful traffic stop, he may detain the driver The officer may ask to see the driver’s license, because he is entitled to know the driver’s identity. State v. Tourtillott, 289 Or 845, 867-68, 618 P2d 423 (1980), cert den 451 US 972 (1981). The officer may also ask to see the vehicle registration. State v. Hicks, 89 Or App 540, 543, 749 P2d 1221 (1988).

“for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation.” ORS 810.410(3)(b).

In State v. Porter, 312 Or 112, 116-20, 817 P2d 1306 (1991), the Supreme Court thoroughly examined the legislative history of ORS 810.410(3) and concluded:

“[T]he legislature sought to keep traffic infractions decriminalized and to reduce the attendant law enforcement methods as much as necessary to accomplish that goal. [The legislature intended] to permit only minimal intrusions on Oregon drivers stopped for traffic infractions.” 312 Or at 119.

To give some teeth to its conclusion that an intrusion authorized by ORS 810.410(3) must be limited, the court declared:

“ORS 810.410(3) defines the authority of the police to respond to a traffic infraction; by implication, the statute proscribes any further action by the police, including a search, unless it has some basis other than the traffic infraction.” 312 Or at 120. (Emphasis supplied.)

Barrong testified that he asked to look in the pack, because he thought that he might find the vehicle registration in it. The trial court found that, “at the time he asked for consent, [Barrong] was still looking for evidence of the vehicle’s ownership.” That finding is supported by the evidence, and we are bound by it. State v. Stevens, supra, 311 Or at 126; Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). Barrong’s testimony and the trial court’s finding establish that his request for consent to search was made solely on the basis of the traffic infraction. He had no “basis other than the infraction” for requesting consent to search the pack. As a matter of law, he was forbidden from asking to look in the pack during the stop. The trial court erred when it denied defendant’s motion to suppress.

Reversed and remanded for a new trial.

1 ORS 815.250 forbids the operation of a motor vehicle whose exhaust system is not in good working order. ORS 811.400 requires a driver to use appropriate signals before turning.