Appeal from Circuit Court, Malheur County. Jeff D. Dorroh, Judge. Nos. 1873-C, 1892-C.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellants.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Fort, Judge. Schwab, Chief Judge, and Foley, Judge.
Defendants, separately indicted and tried for illegal possession of heroin, appeal from the resulting judgments. The appeals, having been consolidated with the consent of the parties, assign as error in both cases the denial of a motion to suppress, and as error in
State v. Villarreal only, denial of a motion for mistrial and refusal to strike certain testimony.
The state police office in Ontario, Oregon, was advised by the owner-pharmacist of a drugstore at Vale, Oregon, by telephone, that two men had just purchased three syringes in his store, and that their behavior in and upon leaving the store had aroused the owner's suspicions concerning them. Accordingly he had taken a description of their vehicle including its out-of-state license number, which he gave to the police along with its apparent direction of travel. The dispatcher alerted two patrol cars in the vicinity who were converging on that route of travel from opposite directions. One police car followed defendants until the other met it, whereupon defendants' car was stopped.
As one officer approached the vehicle on foot, he saw the passenger apparently pushing something down between the front seat which he was occupying and its back immediately behind him. The other officer asked the driver, Villarreal, for his operator's license. He did not have one in his possession, saying he had left it at home. He produced, however, the registration certificate showing himself to be the registered owner. He acknowledged the purchase of syringes at the drugstore and produced them from the back seat. Neither defendant was wearing his jacket. The officer, who had received training in this area, observed what he believed to be old needle marks on both of Villarreal's arms of the type made from injections into a vein. Villarreal was wearing sunglasses. The officer thought his pupils were contracted and asked him to remove the sunglasses. The officer confirmed that the pupils were "very contracted."
Defendant Villarreal was then given the Miranda*fn1 warnings, but, the court found, did not voluntarily consent to the search of the car. The officer nevertheless began to search the car. Almost immediately he located hand-rolled marihuana cigarettes in the pocket of a jacket lying on the back seat.
Meanwhile the other officer began talking with Gonzales, who was seated on the passenger's side of the front seat. He, too, was in his shirt sleeves. The officer asked him if he would roll up his sleeves so he could examine Gonzales' arms. Gonzales willingly rolled up his sleeves. The officer observed "what appeared to be needle marks on his arms which were short tracks." Based on his training he recognized them as a type commonly found on drug users.
The officers then placed both defendants under arrest for unlawful possession of narcotics. The officers then continued their search of the car and stuffed down between the seat cushion and the back of the front seat where Gonzales had been sitting was found a green plastic box containing 15 individual ...