Appeal from Circuit Court, Jefferson County. J. R. Campbell, Judge. No. 4840.
Walter I. Edmonds, Jr., Redmond, argued the cause for appellant. With him on the briefs were Larkin, Bryant & Edmonds, Redmond.
Philip M. Roberts, District Attorney, Prineville, argued the cause and filed the brief for respondent.
Thornton, Judge. Schwab, Chief Judge, and Foley, Judge.
Defendant appeals from his conviction for criminal activity in drugs, specifically for transportation of marihuana.*fn1 ORS 167.207. After jury trial, and a guilty verdict, the court suspended the imposition of the defendant's sentence and placed him on probation for three years.
On appeal, defendant's sole assignment of error is that the trial judge erred in failing to grant defendant's motion for acquittal upon the grounds that there was no proof by the state that defendant was transporting "a usable amount of marijuana."
At about 10:30 p.m. on the evening of February 18, 1972, Patrolman Moffitt of the Prineville Police Department stopped defendant to warn him concerning his improper driving. The officer testified that there were several other youths in the vehicle with defendant; that no odor of marihuana was present in the auto at this time. Following this incident and about 1:30 a.m. on the morning of the 19th, Deputy Sheriff Irwin of the Crook County Sheriff's office observed the same vehicle on Highway 26, a short
distance east of the city limits of Prineville, traveling at what he believed to be an excessive rate of speed. He followed the vehicle for some distance and, after it stopped, approached it to advise the driver, the defendant, of his speeding.
When Deputy Irwin reached the vehicle he observed approximately six occupants in addition to defendant. In the course of questioning the defendant he detected the odor of burned marihuana, with which he was familiar, coming from the vehicle. He mentioned this to the defendant who denied that any marihuana had been smoked in the car. However, Irwin testified that defendant invited him to search the vehicle.*fn2
At this time Deputy Irwin searched only the glove compartment of the vehicle, finding a plastic bottle apparently adapted for smoking. He seized this item and then released the defendant and his passengers.
Wishing to search further, and desiring aid in his search, the deputy next radioed headquarters requesting assistance. At about 2 a.m. Deputy Irwin again stopped the defendant's vehicle, placed the occupants, including defendant, under arrest and, with help from other police officers, searched all occupants and the vehicle.
During this search the deputy found and seized a "vest-pocket" briar pipe of a type usually employed for smoking tobacco. He also found and seized what appeared to be the mostly-smoked butt of a hand-rolled marihuana cigarette, in the car. Deputy Irwin ...