State v. Boundy

DEITS, J. Defendant appeals her conviction for possession of a controlled substance. ORS 475.992(4). She assigns error to the trial court’s denial of her motion to suppress evidence found in her purse. We affirm. On May 29, 1990, Corvallis police stopped a car driven by John Boundy, in which defendant was a passenger. Deputy Sheriff Hall was participating in a 15-month investigation of John for drug trafficking and, while following him that evening, had seen him participate in what Hall believed to be a drug transaction in a Salem area shopping mall parking lot. He contacted the Corvallis police and requested that they stop John’s car and search him. Hall had seen John pull into the shopping mall and park his car in the middle of the parking lot. The store appeared to be closed, and there were very few cars in the lot. Hall had noticed a passenger, but could not identify the person. John got out of his car and walked to some pay phones located in front of some smaller stores in the mall. He returned to his car and got in. A few minutes later, another man walked over from the pay phones to the car and got in on the passenger side. He got out minutes later and walked over to a red car parked in the lot. He reached through the car window, walked back to the pay phones, then back to John’s car. At that time, both men left the car and went to the pay phones. They both appeared to be talking on the phone. The man then left in the red car. John also drove away, eventually heading south on 1-5 until he reached the Albany exit. At Hall’s request, the car was stopped by other officers in Corvallis. John and defendant were arrested and searched. The police discovered cocaine on John and a rolled up dollar bill with traces of cocaine on it in defendant’s purse. Both defendant and John filed motions to suppress. At the consolidated hearing, they argued that the arrest and search were unlawful, because the police lacked probable cause to believe that John had committed a crime and that the vehicle contained evidence of a crime. The trial court concluded that Hall had probable cause to believe that John had “received a quantity of drugs” during his meeting in the Salem parking lot and denied both motions to suppress. [641] Defendant assigns error to the denial of her motion to suppress. She acknowledges that, under the “automobile exception,” State v. Brown, 301 Or 268, 721 P2d 1357 (1986), if the police had probable cause to believe that the car in which she was riding contained evidence of a crime, it would have been permissible to search it and its contents when it was stopped by the police in Corvallis.1 For probable cause, there must be a substantial objective basis to believe that, more likely than not, a crime has been committed and that evidence of the crime will be found in the automobile. State v. Brown, supra, 301 Or at 275. In decidingif there was probable cause, we examine the totality of the circumstances, including the officer’s training and experience. See State v. Cole/Hood, 87 Or App 93, 741 P2d 525, rev den 304 Or 280 (1987). If we could consider only Hall’s observations on May 29, there may not have been probable cause to support the search. However, considering Hall’s specialized training and knowledge and the information obtained from his 15-month investigation, together with his observations, we conclude that there was probable cause to believe that a crime had been committed and that there was evidence of the crime in the car. During the 15-month investigation, Hall learned from a confidential informant that there was a Corvallis drug dealer called “John,” who drove a car fitting the description of John’s. The informant told Hall that the drugs were obtained in Salem, with the transactions occurring in public places such as parking lots: Hall knew that John’s criminal record included a number of arrests and convictions for possession and delivery of controlled substances. As part of his investigation, Hall had arranged for undercover narcotics purchases through two informants, Cole and Smith. Cole participated in a controlled purchase of narcotics from a man named “John,” who lived in a multi-unit complex. Hall [642] discovered that the Boundys lived in one of the units in the complex and saw John’s car parked in front of the building. Smith participated in two controlled buys with Hall. During the second buy, Hall and the informant met John in a bar, where the informant took money from Hall, left the bar with John, returned with the drugs and asked for more money, returned to John, then returned to Hall. Defendant argues that the information from Hall’s informants may not be used to support probable cause, because they were not reliable. However, in determining that Hall had probable cause, the trial court recognized that the information from the confidential informant was not reliable and should be given little weight. In addition, Hall obtained most of the same information from his other informants. Defendant contends that the information from Cole was not reliable, because no one actually saw any transaction between John and Cole. Nevertheless, the circumstances support Hall’s inference that the drug transaction involved John. See State v. Luttrell, 58 Or App 306, 648 P2d 383 (1982). Moreover, Hall’s controlled buys with Smith substantially corroborate the information from Cole and thereby demonstrate the reliability of both informants. See State v. Souders/Brissett, 74 Or App 123, 700 P2d 1050, rev den 300 Or 112 (1985). Considering the totality of the circumstances, we conclude that Hall reasonably believed that it was more likely than not that John’s meeting in the mall parking lot was a drug transaction and that there would be evidence of that transaction in the car at the time of the stop. Accordingly, the search of the vehicle and its contents was permissible under the “automobile exception.” Defendant also argues that, even if the police could lawfully stop and search the car, there was no probable cause to support the seizure of the dollar bill from her purse. However, at the consolidated hearing on the motions to suppress, no specific argument was made concerning the seizure of the bill. Because it was not argued below, the trial court did not make findings relating to its seizure, nor is there evidence in the record concerning it. We will not address that issue, because it was not preserved. Affirmed. Footnotes [1] The dissent wants to address the additional issue of whether, as part of the stop of the Boundy vehicle, it was permissible to search defendant or her purse. However, defendant does notmake the argument on appeal in either of the two briefs that she filed. In her first brief, she argues thát the police lacked probable cause to stop and search the car. In the second brief, she makes no argument that she could not be searched as part of the search of the car. Rather, she argues that the officers who seized the dollar bill from her purse were required to articulate facts that demonstrated probable cause to believe that the bill was contraband or evidence of a crime and that they did not do so.