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Oregon v. Gwinn

February 12, 1973

STATE OF OREGON, APPELLANT,
v.
WALTER HARRIS GWINN, RESPONDENT



Appeal from Circuit Court, Baker County. Lyle R. Wolff, Judge. No. 1082.

Jesse R. Himmelsbach, Jr., District Attorney, Baker, argued the cause and filed the briefs for appellant.

Harold Banta, Baker, argued the cause for respondent. With him on the brief were Banta, Silven, Young & Marlette, Baker.

Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.

Langtry

The defendant was indicted under ORS 474.020(1) for unlawful possession of marihuana in November 1971. He moved for suppression of marihuana seized in searches by police officers which he claims were unreasonable. The trial court denied the motion with reference to a baggie of marihuana which was taken from defendant's person in a search at the state police office when he was taken there after his arrest on a state highway outside Baker, Oregon. The motion was sustained as to 25 two-pound bricks of marihuana which were taken from defendant's vehicle pursuant to a search warrant which was obtained the morning after defendant's arrest. The state has appealed pursuant to ORS 138.060(4) from the part of the order which suppressed the latter evidence. The defendant cannot appeal at this juncture from the other part of the order which denied his motion as to the baggie of marihuana. ORS 138.040.

Preceding arrest, the police officer had become curious about the defendant and his vehicle which he observed at night upon the highway when it came up

behind his police vehicle, and then dropped back. He stopped defendant, asking to check his operator's license. The defendant produced a valid and current Oregon operator's license. The officer asked for the registration certificate for the vehicle. The defendant produced from the glove compartment a certificate of title which had been filled out and signed for transfer within previous weeks in Arizona. The signatures of the sellers were identical in all respects to those of the owners shown on the certificate, but the defendant, who said he was the purchaser, had not signed it in the proper space. This certificate indicated a license number for the 1966 vehicle which did not check with the current Arizona license plates upon it. The officer asked to look at the identification number of the automobile on the inside of the door and was shown it by the defendant. That number checked with the certificate of title identification number. Defendant said that the certificate of title paper was all he had for it. A current and several previous years' registration certificates were clipped to the sun visor at all times and they showed that the current license plates upon the vehicle were proper, because the current plates had been substituted for the originals several years earlier. The fact they were there was discovered the next day.

The police officer told defendant he wanted to look into the trunk of the vehicle. The defendant remonstrated asking whether he had to allow the officer to look there. The officer told him that he would be arrested for switched license plates and after that the trunk would be looked into anyway. In his testimony the officer said that he would not have let defendant go at that time, that is, the defendant was in custody. Thus induced, the defendant produced a key and the trunk was opened. The officer testified that

he was looking for license plates which had been removed in a switch, and that he suspected the automobile was stolen.

In the trunk were two cardboard boxes which were taped tightly shut. The officer testified he immediately suspected they contained marihuana because of their tight and odor-inhibiting bindings and asked defendant if marihuana was in them.*fn1 He testified that by defendant's expression he felt he had hit upon the correct answer. The defendant said he did not know what was in the boxes and that he had not looked in the trunk when he purchased the vehicle. The officer closed the lid of the trunk and arrested defendant for having switched license plates upon his vehicle, which is a traffic offense under ORS 481.255. The officer had the defendant assume a spread-eagle position against the police officer's car and made a pat-down search for weapons, finding nothing suspicious. It was night and cold and the defendant asked to go to his car to get his jacket. The officer told him to stay away from the car, that he was going to search it for weapons, and had defendant remain in the police car handcuffed until another officer arrived to drive the vehicle into town.

The defendant was taken to the police station. The officer prepared and gave him a citation for switched plates, and indorsed the amount of bail on the citation as "$27." The defendant's person was then thoroughly searched and the baggie of ...


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