STATE v. MIEBACH, 35 Or. App. 251 (1978)

580 P.2d 1082

STATE OF OREGON, Appellant, v. ROBERT GRAVES MIEBACH, Respondent.

No. 77-3651, CA 10026Oregon Court of Appeals.Argued May 15, 1978.
Affirmed July 5, 1978.

Appeal from the Circuit Court, Lane County, James R. Hargreaves, Judge.

Jonathan H. Fussner, Assistant District Attorney, Eugene, argued the cause for appellant. With him on the brief was J. Pat Horton, District Attorney, Eugene.

James E. Mountain, Jr., Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Before Schwab, Chief Judge, and Thornton, Tanzer and Buttler, Judges.

PER CURIAM.

Affirmed.

Thornton, J., dissenting opinion.

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PER CURIAM.

The order of suppression is affirmed. Chimel v. California, 395 U.S. 752, 89 S Ct 2034, 23 L Ed 2d 685 (1969); Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).

Affirmed.

THORNTON, J., dissenting.

A group of police officers went to defendant’s residence to arrest another individual who was reported to be living there. While some of the officers went to the front door with an arrest warrant, Detective Wight was dispatched to the backyard of the house to guard against escape. As Wight went through the backyard to his lookout point near the rear of the house, he happened to observe a small plastic greenhouse next to the house in which some type of green plants were growing. Several minutes later, after completing his lookout mission and just before leaving the backyard to rejoin the other officers, he went over and took another look at the contents of the greenhouse. He testified that the structure was only 6 to 10 feet from where he had been standing. Officer Wight was able to see inside through a gap in the plastic sheeting covering the greenhouse. He immediately recognized the green vegetable matter to be marihuana plants.

The majority concludes that the officer was not entitled to step over to this greenhouse and have a closer look at the plants he saw there minutes before.

I submit that this ruling unduly restricts the scope of police authority to investigate possible illegal activity. As I see it this was a permissible plain view observation made from a place where the officer had a right to be. See, State v. Brown, 1 Or. App. 322, 461 P.2d 836 (1969), rev den (1970); State v. Henderson, 8 Or. App. 252, 493 P.2d 75, rev den (1972); State v. Alexander, 9 Or. App. 42, 495 P.2d 51, rev den (1972); State v.

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Mahon/Sheedy, 17 Or. App. 177, 521 P.2d 37, rev den (1974).

The instant case is totally distinguishable on the facts fro Chimel v. California, 395 U.S. 752, 89 S Ct 2034, 23 L Ed 2d 685
(1969), cited and relied upon by the majority. The facts in the above listed decisions are more comparable to those at bar than those in Chimel. In each we upheld the officer’s actions. I would do the same here.

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