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Oregon v. Childers

June 18, 1973

STATE OF OREGON, RESPONDENT,
v.
DENNIS LOWRY CHILDERS, APPELLANT



Appeal from Circuit Court, Jackson County. James M. Main, Judge (Motion to Suppress). L. L. Sawyer, Judge (Trial). No. 72-716-C.

William A. Masters, certified law student, Willamette University, Salem, argued the cause for appellant. With him on the brief were Gary D. Babcock, Public Defender, and John K. Hoover, Deputy Public Defender, Salem.

John W. Burgess, 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.

Thornton, Judge. Schwab, Chief Judge, and Fort, Judge.

Thornton

Defendant appeals from his conviction after a bench trial for criminal activity in drugs, specifically for possession of lysergic acid diethylamide, or LSD. ORS 167.207 (1). Before trial defendant moved to suppress the drugs which were the subject of the indictment. The trial court denied the suppression motion, and on appeal the defendant asserted that this denial was error.

The defendant's arrest occurred in the early morning hours of April 26, 1972. At about 1:20 a.m. Deputy Sheriff Oachs, of the Jackson County Sheriff's office, while on motor patrol, observed a station wagon operating "very slowly" in a state park area. The vehicle proceeded down a boat ramp to within 10 or 15 feet of the Rogue river, and then stopped.

Deputy Oachs felt that this activity was unusual and suspicious. He drove up behind the parked vehicle and approached it to investigate. The defendant was the driver of the car. Deputy Oachs asked to see the defendant's driver's license. At this time the car window was rolled down. Deputy Oachs could smell a very strong odor of incense in the car, and "* * * [he] thought [he] could detect an odor of marijuana."

The defendant produced a current Oregon driver's license, and Deputy Oachs then asked defendant to walk back to the deputy's car. Deputy Oachs testified that the smell of marihuana was somewhat stronger when the defendant was outside the station wagon, but the deputy still could not positively identify the odor as that of marihuana.

In response to the officer's questions, the defendant explained that he had stopped on the boat ramp because he was tired and wanted to sleep for awhile. Deputy Oachs testified that the defendant seemed irritable and that his speech was somewhat slurred.

The defendant and Deputy Oachs then returned to the defendant's car, and Deputy Oachs requested identification from the defendant's female passenger. She could produce only a slip of paper recording a doctor's appointment for the next day in Santa Cruz, California. Although the passenger told Deputy Oachs that she was 19, the officer felt that she was considerably younger.

Deputy Oachs testified that he felt the circumstances warranted further investigation, but decided that he should summon assistance before doing so. At this point he drove away from the defendant's car and parked in another portion of the park.

The defendant's station wagon almost immediately left the park and entered the highway. Deputy Oachs followed, and soon stopped the defendant again, having noticed that defendant did not have a light over his rear license plate in violation of ORS 483.406 (2).

Deputy Oachs asked to see defendant's vehicle registration, and defendant said that he had lost it. Although Deputy Oachs had earlier requested a

records check on the defendant's car, he had not yet received any ...


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