State v. Taylor

EDMONDS, J.

Defendant appealed his convictions for arson in the first degree, ORS 164.325, two counts of burglary in the first degree, ORS 164.225, and theft in the first degree. ORS 164.005. We affirmed. 116 Or App 647, 842 P2d 460 (1992). Defendant filed a petition for review, which we treat as a petition for reconsideration. ORAP 9.15. We allow the petition, and adhere to our earlier decision.

In that opinion, we agreed with the trial court that the officer who had stopped defendant and his passenger had reasonable suspicion to make further inquiries about the contents of the vehicle. Defendant and the dissent argue that there is no evidence that the officer recognized the bulky object underneath the passenger’s legs as a pillowcase before it was searched. The trial court made findings to the contrary that are supported by evidence. The court said:

“The following constitute my findings and conclusions based upon my review of the evidence taken at the hearing on May 10, 1991.
* * * *
“While on patrol Officer Page was aware * * * of a recent aborted armed robbery and burglary involving multiple suspects and the use of walkie-talkies. He was also aware that an individual named James Rich who lived on 3rd Street in Yamhill was a suspect in the armed robbery/burglary, a convicted burglar and drug dealer.
“Officer Page noticed a grey station wagon which he had never seen before. He followed the vehicle for a short distance. The driver committed a traffic infraction and Page stopped the vehicle. * * *
“Officer Page asked Taylor for his drivers’ license. Taylor stated he had ‘none’ and he gave Page his date of birth. Page ran his name through the MVD records and Taylor came back ‘suspended.’
“When Page returned to the car, he observed inside the vehicle a bulky pillowcase with jagged edges sticking out from underneath the passenger’s legs. He also saw in the back seat head phones with antennas which appeared to be similar to walkie-talkies or two-way radios used in the rob-beiy discussed above. Based upon his training and experience Page knew that burglars frequently used walkie-talkies and *212pillowcases to collect stolen articles while inside the victim’s house.
“Page asked defendant what was in the pillowcase. The defendant stated it was ‘personal, and he could not tell.’ Upon repeating his request, defendant said it was ‘women’s underwear and things.’ The pillowcase did not appear to contain soft items. Defendant’s explanation was inconsistent with the item’s appearance.
“Page inquired as to what they were doing on 3rd Street in Yamhill. Defendant advised ‘they were over to see a guy named “Rich.’T] Page knew the only Rich on 3rd Street was the individual described above. He then radioed for backup as he suspected defendant and his passenger of criminal activity.” (Emphasis supplied.)

We are bound by the trial court’s historical findings when there is evidence to support them. Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). Page testified:

“A. And when I walked back up to the car on the passenger — on the driver’s side and passenger in the rear seat, there was [sic] two sets of headphones, like a two-way radio type that had the microphone that comes in front of the mouth, and two antennas, one to transmit and one to receive.
“And there was [sic] two black boxes under them. I also noticed a bulky rounded thing with jagged edges underneath the passenger’s legs by the front seat. I asked the driver what was in it, and he said that it was personal, he couldn’t tell me.
* * * *
“Q. Okay. So, you asked about — what was it about the mound of things on the floorboard that made you ask questions?
“A. The part that was sticking out had a lot of little jagged edges sticking out. I kept, I asked the driver again what was in it, and he said it was personal, he couldn’t tell me.
“I said, ‘Come on, you can tell me.’
“He finally said, ‘Well, okay. It is women’s underwear and things.’
“At that point, I became extremely suspicious.
“Q. Maybe it is obvious, maybe you can explain why?
“A. Pardon me?
*213“Q. It is probably obvious, but maybe explain why you became extremely suspicious?
“A. Because the pillowcase was not shaped like a soft, like clothing would be where it would be rounded, it may have some big bulges, but not a lot of little ones.
“I felt he wasn’t telling me the truth.” (Emphasis supplied.)

He summarized his observations before he searched the pillowcase:

“At this point, I felt that I had a burglary that just occurred. I had the open container with the two-way radios, the pillowcase with the jagged edges in it that didn’t match up with what he told me it was. He told me the headsets were stereo. They weren’t.” (Emphasis supplied.)

In the light of the fact that the officer observed the bulky object underneath the passenger’s legs in the front seat of an automobile from a short distance outside the automobile, the court could reasonably infer from this testimony that the officer recognized the object as a pillowcase before he searched it.

Even if the court could not make that inference, it is apparent from the description given by the officer that the pillowcase was some type of bag that contained objects in it that had jagged edges. In the light of that observation and the other information that he had before he asked what was in the pillowcase, he had reasonable suspicion that justified his asking more questions. Thereafter, he discovered the connection between defendant and a convicted burglar who was a suspect in the other crime, and at that time, all of the information that he had constituted probable cause to search the pillowcase for the fruits of a burglary.

The dissent relies on State v. Bates, 304 Or 519, 747 P2d 99 (1987). The facts of that case are inapposite. In Bates, a police officer stopped the defendant for excessive vehicle emissions in a “high crime residential area.” The defendant was driving in an otherwise lawful manner in an automobile with Washington license plates. The officer approached the vehicle and asked the defendant for his driver’s license. In the automobile in plain view was a television and a video cassette recorder. The officer shined his flashlight down between the *214defendant’s feet and “could make out just the end of what appeared to be some kind of a bag.” The defendant refused to pull the bag into view. The officer drew his service revolver and ordered defendant out of the automobile. He retrieved the closed black bag from under the front seat, felt something hard inside it, opened it and found drugs and drug paraphernalia. The state argued that, once the defendant was validly stopped, the officer reasonably suspected that he was armed and dangerous and, therefore, the officer was entitled to take reasonable steps to protect himself. The court held that none of those circumstances, individually or collectively, justified a suspicion on the part of the officer that the defendant posed an immediate threat. The facts in Bates are far different from the facts here, where the officer was able to tie the contents of the vehicle to information of a prior crime committed in the area. The trial court did not err when it held that these facts constituted reasonable suspicion to further pursue the investigation.

Reconsideration allowed; opinion modified and adhered to as modified.