State v. Turchik , 53 Or. App. 499 ( 1981 )

VAN HOOMISSEN, J.

Defendant appeals his jury conviction for possession of a controlled substance. ORS 475.992. The issue on appeal is whether the police had probable cause to conduct a warrantless search of defendant’s vehicle, and, if so, whether exigent circumstances justified the warrantless search of a closed shoebox found inside the vehicle.

As Officers Stroup and Hawkins were patrolling Highway 97 in Klamath County, they observed a 1976 Volkswagon Rabbit cross the center line twice, the second time in the path of an oncoming truck and trailer. They stopped the vehicle and asked the defendant, the driver of the vehicle, for his driver’s license. After observing defendant having difficulty producing his license, and because Stroup smelled an odor of alcohol on defendant’s breath, the officers decided to conduct field sobriety tests.

While Officer Hawkins administered the tests, Stroup went to the passenger side of the vehicle, where he observed an open can of beer, later found to be about half-full, between the feet of a passenger. He asked the two passengers to get out of the car. When they did, Stroup observed a plastic baggie containing green vegetable matter in plain view between the passenger door and the front seat. Based upon his training and experience, Stroup believed the baggie contained marijuana. Stroup questioned defendant and his passengers about who owned the marijuana. He received conflicting stories, the passengers maintaining the marijuana was theirs and the defendant stating that the marijuana belonged to all three of them.¹ Stroup cited the two passengers for possession of less than an ounce of marijuana. ORS 475.992(4)(f).

Officer Stroup then searched the right front floor of the vehicle, where he found and opened a styrofoam cooler which contained open and unopened cans of beer. His search of the front passenger area of the vehicle revealed cigarette paper and a smaller bag of vegetable matter on the dashboard. Stroup continued searching the vehicle, which contained clothing and personal property of the defendant being transported to the Klamath Falls area where the defendant was moving. In the rear compartment of the vehicle Stroup found a closed shoebox. There was nothing unusual about the shoebox. Officer Stroup candidly admitted that he had no particular suspicion that the shoebox contained marijuana, but that he intended to open everything in the car in the course of his search. Stroup opened the shoebox. Inside he found a plastic bag of what appeared to be marijuana seeds, which he seized. Defendant was then cited for the open container violation, a Class B traffic infraction, ORS 487.841, and released. Subsequent analysis confirmed the shoebox contained 6.2 ounces of non-sterilized marijuana seeds. Defendant was indicted for Possession of a Controlled Substance, based upon the evidence discovered by Officer Stroup in the shoebox.

At trial defendant challenged the warrantless search of his car and, more particularly, the warrantless search and seizure of the closed shoebox. Defendant’s pretrial motion to suppress was denied.²

Defendant contends: (1) the search of the car was not based on probable cause; and (2) there were no exigent circumstances to support the search and seizure of a closed container found inside the vehicle. The state contends: (1) the warrantless search of the defendant’s vehicle was reasonable in that it was based upon probable cause and exigent circumstances; and (2) the shoebox was not a repository of personal effects in which the defendant had a reasonable expectation of privacy, and therefore no warrant was required to open it and search its contents. We find that the search of the vehicle was lawful, but that the search of the shoebox containing marijuana was not. Therefore, we reverse.

Defendant does not challenge the initial stop of his vehicle nor the seizure of the open container of beer. We find that the officer’s observations and the statements of the defendant and his passengers gave the officers probable cause to search the vehicle for more marijuana and open containers and that exigent circumstances justified that warrantless search.³

The next question is whether the police were justified in conducting a warrantless search of the closed shoebox found in defendant’s vehicle. We are not here concerned directly with the so-called "automobile exception” to the warrant requirement of the Fourth Amendment. The warrantless search of the vehicle was permissible based upon probable cause and exigent circumstances. Rather, we are concerned with the reasonableness of the warrantless search of the closed shoebox.⁴

Absent exigent circumstances, the police must obtain a warrant before searching a closed container found in a vehicle, even if they have probable cause to believe the container contains contraband. Robbins v. California, 453 US 420, 101 S Ct 2841, 69 L Ed 2d 744, (1981); Arkansas v. Sanders, 442 US 753, 99 S Ct 2586, 61 L Ed 2d 235 (1979); United States v. Chadwick, 433 US 1, 97 S Ct 2476, 53 L Ed 2d 538 (1977); see also State v. Groda, 285 Or 321, 591 P2d 1354 (1979).⁵

The burden of proving the validity of a warrantless search is on the state. ORS 133.693(4). Here the state does not argue the existence of exigent circumstances to open and search the shoebox. Rather, it attempts to excuse the warrantless search on the grounds that the shoebox was not a repository of personal effects in which the defendant had a reasonable expectation of privacy.⁶

We hold that on the evidence in this case the defendant enjoyed a reasonable expectation of privacy in his closed shoebox. We see no rational basis for distinguishing this case from Robbins v. California, supra (packages wrapped in opaque plastic), Arkansas v. Sanders, supra and United States v. Chadwick, supra (luggage); State v. Downes, 285 Or 369, 591 P2d 1352 (1979) (closed cosmetic kit found within a closed trunk); State v. Groda, supra (closed briefcase found in trunk); State v. Keller, 265 Or 622, 510 P2d 568 (1973) (fishing tackle box); State v. Williams, 48 Or App 293, 616 P2d 1178 (1980) (cassette tape case); or State v. DeLong, 43 Or App 183, 602 P2d 665 (1979), rev den 288 Or 571 (1980) (camera case). The trial court erred when it denied defendant’s motion to suppress.

Reversed and remanded for trial.

1 Based upon the evidence, the officers had probable cause at this time to arrest the defendant for unlawful possession of marijuana. ORS 475.992(4)(f); ORS 161.565: ORS 161.505: ORS 133.310.

2 The trial court found:

"Now, the Court finds that the Officer had probable cause to ask the person to step out and to search the front compartment of the car observing the open beer container in plain view from a place where he was entitled to be. After the passenger stepped out he noticed the baggie of marijuana in plain view. His underlying objective at that time was to determine whether or not the driver was under the influence of intoxicants of some sort. It was the other officer who was conducting the field sobriety test at the time that Officer Stroup was making the observations in the car. He had discovered in a lawful manner the baggie of marijuana and the container in the glove compartment which had what appeared to be burnt residue of marijuana. This was all very similar to the [State v.] DeLong., [43 Or App 183, 602 P2d 665 (1979), rev den 288 Or 571 (1980)] case. The Court finds that Officer Stroup had a well warranted suspicion at the time that he pursued his search of the vehicle and really the pivotal issue in these motions is whether or not that shoebox was a closed container. No judge likes to be reversed on the same principle but the Court has examined the case of Arkansas vs. Sanders [442 US 753, 99 S Ct 2586, 61 L Ed 2d 235 (1979)] which is the principle basis on which the DeLong, case would be decided and holds in this case that a warrant to open the shoebox and to search it was not required in this case. The motion to suppress the articles found in the shoebox is denied. * * *”

3 Chambers v. Maroney, 399 US 42, 90 S Ct 1975, 26 L Ed 2d 419 (1970); Carroll v. United States, 267 US 132, 45 S Ct 280, 69 L Ed 543, 39 ALR 790 (1925); State v. Greene, 285 Or 337, 591 P2d 1362 (1979); State v. Groda, 285 Or 321, 591 P2d 1354 (1979); State v. Stacey, 17 Or App 662, 523 P2d 612, rev den (1974); State v. Krohn, 15 Or App 63, 514 P2d 1359 (1973), rev den (1974).

No amount of probable cause can justify a warrantless search or seizure, absent exigent circumstances. Coolidge v. New Hampshire, 403 US 443, 468, 91 S Ct 2022, 29 L Ed 2d 564 (1971). Exigent circumstances exist where police officers reasonably believe an immediate search is necessary to prevent the loss of evidence. State v. Matsen/Wilson, 287 Or 581, 601 P2d 784 (1979).

4 Walter v. United States, 447 US 649, 100 S Ct 2395, 65 L Ed 2d 410 (1980); Arkansas v. Sanders, 442 US 753, 99 S Ct 2586, 61 L Ed 2d 235 (1979); State v. Downes, 285 Or 369, 591 P2d 1352 (1979); State v. Groda, 285 Or 321, 591 P2d 1354 (1979); State v. Keller, 265 Or 622, 510 P2d 568 (1973); State v. Williams, 48 Or App 293, 616 P2d 1178 (1980); State v. DeLong, 43 Or App 183, 602 P2d 665 (1979), rev den 288 Or 571 (1980).

5 Certain exceptions to this general rule are not involved in this case (e.g., contents can be inferred from the outward appearance of container, plain view, opening incident to a lawful custodial arrest, consent).

6 Justice Harlan, concurring in Katz v. United States, 389 US 347, 361, 88 S Ct 507, 19 L Ed 2d 576 (1967):

"* * * [TJhere is a twofold requirement, first that a person have exhibited an actual [subjective] expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.’ * * *” 389 US at 361.