State v. Wise-Welsh

146

Argued and submitted December 15, 2020, affirmed March 2, petition for

review denied July 28, 2022 (370 Or 198)

STATE OF OREGON,

Plaintiff-Respondent,

v.

ROSEMERY ECHO FAITH WISE-WELSH,

Defendant-Appellant.

Lane County Circuit Court

18CR70028; A170156

506 P3d 454

Debra E. Velure, Judge.

Sara F. Werboff, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

David B. Thompson, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Mooney, Presiding Judge, and Pagán, Judge, and

DeVore, Senior Judge.*

PER CURIAM

Affirmed.

______________

* Págan, J., vice DeHoog, J. pro tempore.

Cite as 318 Or App 146 (2022) 147

PER CURIAM

Defendant was convicted by a jury of one count

of unlawful possession of methamphetamine. On appeal,

defendant challenges the trial court’s denial of her motion

to suppress. We affirm.

The relevant facts are undisputed. In a parking lot

of a closed public boat ramp, an officer encountered defen-

dant with two others in a parked vehicle. The officer initially

contacted the occupants of the car to investigate the crime of

trespassing. The driver volunteered to have the officer search

the vehicle for drugs. The officer opened the passenger door

where defendant was seated and saw a glass pipe containing

crystalline residue in between the passenger seat and door.

The officer ordered defendant to leave the vehicle and saw

her open purse on the floor in front of her seat. A syringe,

with the plunger pulled back suggesting it was ready for

use, was visible inside the open purse. Believing that the

pipe contained methamphetamine and that the syringe was

likewise going to be used for ingesting methamphetamine,

the officer seized the syringe. The officer later determined

that the syringe contained methamphetamine.

Defendant moved to suppress the syringe and

statements she made after it was seized. The trial court

denied the motion and defendant was subsequently found

guilty by a jury of a single count of unlawful possession of

methamphetamine.

On appeal, defendant makes two arguments. First,

she argues that the officer unlawfully extended the stop and

the scope of the investigation beyond the initial trespass

inquiry. We reject that argument as unpreserved. Second,

she argues that the plain-view doctrine did not justify sei-

zure of the syringe because the incriminating character of

the syringe was not “immediately apparent.”

Regarding the second argument, the facts of this

case are most analogous to State v. Stock, 209 Or App 7, 146

P3d 393 (2006), where we concluded that, in the totality of

the circumstances, the search of a folded bottle cap contain-

ing a plastic bag was supported by probable cause. Although

Stock was decided in the context of a vehicle inventory

148 State v. Wise-Welsh

search, the probable cause determination is identical in the

context of the plain-view doctrine. Compare Stock, 209 Or

App at 13, with State v. Currin, 258 Or App 715, 719, 311 P3d

903 (2013) (applying the plain-view doctrine and explaining

that, under Article I, section 9, probable cause requires that

an officer subjectively believe that a crime has been com-

mitted, and thus that a person or thing is subject to seizure,

and that the belief be objectively reasonable in the circum-

stances); see also Texas v. Brown, 460 US 730, 740-42, 103

S Ct 1535, 75 L Ed 2d 502 (1983) (equating the “immediately

apparent” standard required for plain view with probable

cause for Fourth Amendment purposes).

Although we agree with defendant that syringes

are not contraband categorically subject to seizure, State v.

Oller, 277 Or App 529, 537, 371 P3d 1268 (2016), rev den, 361

Or 803 (2017), we have consistently explained that normally

benign objects may nonetheless be subject to seizure as evi-

dence of a crime. See, e.g., Stock, 209 Or App at 13. “Whether

an officer may be said to have probable cause to believe that

a particular [object] contains drugs depends on the nature of

the [object] itself, as well as on the context in which [it] was

found and on the knowledge and experience of the officer

who finds it.” Id.; see also State v. Sargent, 323 Or 455, 463,

918 P2d 819 (1996) (plain-view seizure of pager, needles, and

papers containing numbers was justified based on circum-

stances of being lawfully present in an apartment where

drug dealing was reported with persons who had history of

drug use). In light of the circumstances of this case, the offi-

cer’s subjective belief that the syringe contained contraband

was objectively reasonable. The officer had probable cause

that defendant was in possession of methamphetamine and,

thus, he properly seized the syringe under the plain-view

doctrine.

We conclude that the trial court did not err by deny-

ing the motion to suppress.

Affirmed.