{"id":3765,"date":"2010-01-23T10:06:34","date_gmt":"2010-01-24T00:01:00","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-01-23T10:04:55","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3765","title":{"rendered":"OR: Rule that possession of an ounce or less of marijuana does not support a SI does not apply to automobile exception"},"content":{"rendered":"

Likely possession of marijuana in a backpack in a car justified its search under the automobile exception. The fact that there might have been less than an ounce was not determinative as to application of the automobile exception. State v. Smalley<\/a>, 2010 Ore. App. LEXIS 21 (January 20, 2010):<\/p>\n

According to defendant, Bingman stands for the proposition that, first, the automobile exception requires probable cause to believe that a crime, not a mere violation, has occurred, and second, that a strong odor cannot by itself form the basis for an objectively reasonable belief that an automobile contains more than an ounce of marijuana. Additional evidence is necessary, defendant contends, and, in the present case, there is nothing beyond odor.<\/p>\n

We reject defendant’s argument. Bingman overstated the import of Tallman. That case, as noted, holds only that possession of less than an ounce of marijuana cannot, by itself, support probable cause for an arrest or a search incident to an arrest. It says nothing about an automobile search. In fact, this court has never directly confronted the question whether the automobile exception encompasses situations in which an officer has probable cause to believe a violation, as opposed to a crime, has occurred. See ORS 161.505 (offense is either crime or violation)- But see ORS 131.005(6) (“criminal action” includes prosecution for commission of a violation). However, the Supreme Court in Brown specified that “probable cause to believe that a lawfully stopped automobile which was mobile at the time of the stop contains contraband or crime evidence justifies an immediate warrantless search of the entire automobile.” 301 Ore. at 277 (emphasis added). By using the phrase, “contraband or crime evidence,” the court signaled its understanding that the two things were not identical and that probable cause to believe in the presence of either could justify an automobile search; see also ORS 133.535(2) (“contraband” is subject to search and seizure).<\/p><\/blockquote>\n

The officers did not have exigent circumstances to enter defendant\u2019s house without a warrant where they waited an hour before they decided to enter. Nothing was seized however, and the subsequent search warrant was issued with probable cause, given the \u201cgreat deference\u201d that search warrants get, and that was an independent basis for the search. State v. Mills<\/a>, 2010 Tenn. Crim. App. LEXIS 43 (January 15, 2010).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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