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Oregon v. Keller

June 1, 1973

STATE OF OREGON, RESPONDENT,
v.
BARBARA JEAN KELLER, PETITIONER



Petition for review allowed September 6, 1972; On review from the Court of Appeals.

Walter L. Barrie, 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.

Howard R. Lonergan, Portland, argued the cause for petitioner. With him on the brief was Glenn A. Geurts, Portland.

In Banc. Bryson, J.

Bryson

The defendant was indicted for illegal possession of dangerous drugs, ORS 475.100. Before trial, the defendant moved to suppress the evidence found by police while making an inventory search of her automobile after a lawful arrest, but without a search warrant. The trial court granted the motion to suppress the evidence (drugs, etc.) found in a tackle box but denied the motion to suppress the evidence (syringes and needles) found in an open cosmetic case and in plain view. The state appealed pursuant to ORS 138.060 (4). The Court of Appeals reversed the trial court, State v. Keller, 9 Or App 613, 497 P2d 868 (1972). We accepted review as this court has not addressed the subject of an "inventory search" of an automobile without a search warrant.

The essential facts are as follows. On October 17, 1971, officers Van Horn and Nelson of the Portland Police Department stopped the defendant while driving her automobile to see if she had a valid driver's license. They had arrested her on October 4, 1971, and knew her license had been suspended. A radio check revealed her license was still suspended, and she was

arrested for driving an automobile with a suspended driver's license. Her passenger was intoxicated, and he was arrested for being drunk on the street. Defendant and the passenger were placed in the police vehicle.

The officers called a tow truck to remove defendant's vehicle from the street and proceeded to inventory the contents of the car. The police inventory of the car's contents was pursuant to administrative requirements that police note the type of motor and transmission, tires, valuables, body damage, color of car, and weapons. During inventory of the contents of the car, the police noted an open cosmetic case on the floor in front of the driver's seat, and its contents, syringes and needles, were in plain view. They also observed a fishing tackle box, on the floor of the back seat, held closed by a "red wire tied around it."

The police removed the wire and opened the tackle box to inventory its contents and observed five vials of liquid, litmus paper, and razor blades. The liquid was later determined to be a dangerous drug, which was the basis of the indictment against defendant. Officer Nelson testified that when the box was opened there was the odor of methamphetamine, which he had smelled before in a "narcotics lab." The facts are not in dispute.

The posture of the case is a lawful arrest followed by a reasonably required inventory search of the car's contents preparatory to having the automobile towed away and impounded. The only testimony offered on the motion to suppress was given by the two officers. They both testified that the sole purpose of the search was to inventory the car's contents, and the trial court made a finding to this effect.

Under facts such as we have in the instant case,


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