Opinion
No. 40509
Submitted on briefs July 19, 1972
Affirmed July 27, 1972
Appeal from Circuit Court, Linn County.
WENDELL H. TOMPKINS, Judge.
Terry K. Haenny, Salem, filed the brief for appellant.
Lee Johnson, Attorney General, John W. Osburn, Solicitor General, and Thomas H. Denney, Assistant Attorney General, Salem, filed the brief for respondent.
Before SCHWAB, Chief Judge, and LANGTRY and THORNTON, Judges.
AFFIRMED.
Defendant appeals from a conviction for possession of marihuana, assigning as error the denial of his motion to suppress the evidence that was the basis of this charge.
While driving a pickup truck, defendant was stopped by a police officer for a traffic violation. As defendant pulled out his wallet, after being asked to produce his driver's license, a pack of cigarette papers fell to the ground. As defendant handed over his license, the officer smelled what he believed to be the odor of burned marihuana. Officer McClellan had had narcotics training that included training in the recognition of the odor of burning marihuana. The officer then searched defendant, and found a baggie of marihuana in his pants pocket.
The credible testimony of a police officer who has training in recognizing the odor of burned marihuana that he did, in fact, smell what he believed to be marihuana, coupled with having observed defendant in possession of cigarette papers, established probable cause to make this search. See, State v. Devine, 9 Or. App. 424, 496 P.2d 51, Sup Ct review denied (1972); State v. Hartman, 5 Or. App. 156, 483 P.2d 107, Sup Ct review denied (1971).
The cases cited by defendant are not to the contrary. In both Chapman v. United States, 365 U.S. 610, 81 S Ct 776, 5 L Ed 2d 828 (1961), and Johnson v. United States, 333 U.S. 10, 68 S Ct 367, 92 L Ed 436 (1948), the court at least implicitly recognized that the detection of the odor of contraband, coupled with the other circumstances of those cases, could have provided adequate grounds for the issuance of a search warrant. The searches in both cases were held invalid not because of an absence of probable cause, but because the police failed to obtain warrants to search the premises involved, and because no reason for an immediate warrantless search was shown in either case.
In this case, however, where the search of a person is involved, it would obviously have been impractical to obtain a warrant to search defendant without detaining him even longer than the search itself would take. See, State v. Erickson, 4 Or. App. 119, 476 P.2d 944 (1970).
Affirmed.