Appeal from Circuit Court, Douglas County. Charles S. Woodrich, Judge. No. 36696.
Benhardt E. Schmidt, Portland, argued the cause and filed the brief for appellant.
Brian R. Barnes, Deputy District Attorney, Roseburg, argued the cause for respondent. With him on the brief was Doyle L. Schiffman, District Attorney, Roseburg.
Langtry, Judge. Schwab, Chief Judge, and Fort, Judge.
Defendant, convicted by a jury of illegal possession of a dangerous drug, former ORS 475.100, appeals from the resulting judgment.
Defendant and two others, Pinski, the owner of the camper vehicle in which all three were traveling, and another companion named Elkington, stopped at a service station in Roseburg to pick up a car belonging to Pinski. The police were called and Officer Daly arrived to interrogate Pinski concerning switched license plates on the car which had been left for repairs when the threesome were on their way from the Portland area to Mexico in the two vehicles.
Officer Daly took Pinski, in the absence of the defendant and Elkington, into a police car, ostensibly in connection with the switched license plates and read him his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974 (1966)). Officer Daly in his testimony acknowledged that he was suspicious that the camper contained narcotics because he knew the party was returning from Mexico. Pinski, at the officer's request, executed a consent to search his camper vehicle. By the time the search began four police officers were present. Two, including Daly, entered the camper and made an exhaustive search of it for illegal drugs. None of the three suspects were inside the camper while the search was going on. A levi jacket was on the floor of a closet in the camper, and in its pockets was found a baggie, "one of these small plastic sandwich baggies, which contained four or five white double-scored tablets, which I immediately recognized as being what is known as mini bennies or amphetamine type tablets."
Officer Daly then took the jacket outside without disclosing what he had found in its pockets and asked Pinski if the jacket were his. Pinski indicated that the jacket belonged to the defendant. The record contains contradictory testimony on whether the defendant
was present when Pinski made this statement; and Officer Daly, who testified that the defendant was present, could not remember if he then asked the defendant if the jacket were his or if the defendant had responded directly to Pinski's statement. In any event the defendant admitted to Officer Daly that the jacket was his. The defendant testified that at that point he was "under the impression that we had no choice" about leaving -- that Officer Daly had taken his vehicle operator's license and had refused to return it. This was never denied in Officer Daly's testimony.
The defendant then went to the police station where he was read his Miranda rights for the first time and made a further statement admitting possession of the four tablets which contained the dangerous drug amphetamine. The trio was then released and continued their journey to Portland.
The next day a search warrant for the camper was obtained by the federal authorities. The resulting search revealed a cache of 125 kilos of marihuana skillfully hidden in the camper. This evidence was later ordered suppressed by the United States District ...