majority">*595WARREN, J.

Defendant appeals his conviction for possession of a controlled substance. ORS 475.992(4). He assigns as error the trial court’s denial of his motion to suppress. We affirm.

Defendant was a passenger in a pickup truck that was stopped because of the driver’s erratic driving. After the vehicle had been stopped, Officers Elkins and Warren determined that the driver was under the influence of either methamphetamine or cocaine. They were familiar with the pickup and knew that there was an outstanding arrest warrant for the owner for possession and manufacture of methamphetamine. The owner had been described as armed and dangerous. The officers knew that neither the driver nor defendant was the owner of the pickup.

With the driver’s consent, the officers searched the cab of the truck, where they found a pipe with marijuana residue. Elkins also noticed some makeshift laboratory stands in the back of the truck. During the search, defendant remained hunched over inside the cab and appeared nervous. During a pat down for weapons, Warren lifted defendant’s shirttail to check his waistband for weapons. In the waistband, he found a small, opaque sandwich box. With the aid of a flashlight and the police car’s headlights, the officers determined that the box contained plastic bags holding a white powdery substance.

The officers arrested defendant for possession of a controlled substance, ORS 475.992(4), and transported him to the police station. There, under ordinary light, they could see more clearly that the bags in the box contained white powder. Without first obtaining a warrant, the officers opened the box and confirmed that the substance was methamphetamine.

Defendant does not challenge the stop of the vehicle or the consent search of the cab. Warren testified that, during a weapons pat down, it is not uncommon for him to lift a suspect’s shirt to check for weapons. He also testified that he had previously seen drugs carried in a manner similar to the way in which defendant was carrying the small plastic box and that, after the box was examined under lights, he was certain that there was either cocaine or methamphetamine in it.

*596Defendant argues that the evidence of the methamphetamines should have been suppressed, because the search of his person, the seizure and the subsequent search of the box were unlawful. He argues that the officers had no basis to frisk him for weapons under ORS 131.625(1):

“A peace officer may frisk a stopped person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and presently dangerous to the officer or other person present.”

The officers knew that there was an arrest warrant for the owner of the pickup for the manufacture and transportation of methamphetamines. They saw equipment commonly used for such manufacture in the back of the truck and, from their training and experience, knew that people involved in the manufacture and transportation of that drug commonly carry weapons. The driver showed signs that he was under the influence of methamphetamine or cocaine. In addition, defendant was nervous and hunched over, as though he might be hiding something. The circumstances justified the suspicion that defendant was armed and dangerous. See State v. Bates, 304 Or 519, 526, 747 P2d 991 (1987).

Defendant next argues that the frisk was overly intrusive, citing ORS 131.605(2), which defines a frisk as “an external patting of a person’s outer clothing.” By raising defendant’s shirt, Warren failed to follow the statute strictly. However, had he first conducted a pat down at the waist, he would have felt the hard plastic box and would have been entitled to lift the shirt to pull it out. State v. Ridderbush, 71 Or App 418, 692 P2d 667 (1985).1 The method of search used was not overly intrusive.

In order to be able lawfully to seize the container, the officers had to have probable cause to believe that it contained contraband. State v. Elkins, 245 Or 279, 284, 422 P2d 250 (1966). Defendant does not challenge the trial court’s finding that, through the lid, the officers saw sealed plastic baggies *597that appeared to contain a white powder.2 Warren testified that he had seen drugs packaged that way before. The existence of the substance concealed on defendant’s body, added to the other circumstances that we have discussed previously, which associated defendant with the manufacture and transportation of methamphetamine, created probable cause to believe that the box contained contraband and gave the officers the right to seize it.

Defendant argues that Elkins unlawfully used the technological enhancement of a flashlight to search the outside of the box. Elkins testified that, in the ordinary light of the police station, he could see through the top of the box even more clearly than with the flashlight. It is not unlawful for an officer to use a flashlight to examine the outside of a container and to see no more than is visible under normal indoor lighting.3

Defendant next argues that the officers unlawfully opened the box without a warrant. In State v. Owens, supra, 302 Or at 206, the Supreme Court held that there is no privacy interest in transparent containers or other containers that otherwise announce their contents. In Owens, a transparent vial containing white powder announced its contents. Similarly, in this case, the box allowed enough visibility through the top to announce its contents. A warrant was not required.

Affirmed.

During a pat down for weapons, the officer found a small box in the defendant’s pocket. The officer had information that, a week earlier, the defendant had carried a knife. We stated in dictum that the officer had the authority to remove the box from the defendant’s pocket and to open it in order to protect his safety. State v. Ridderbush, supra, 71 Or App at 422.

An examination of the box admitted in evidence shows, as the dissent points out, that the box is very difficult to see through. That does not defeat the trial court’s fact findings, which defendant does not challenge, that the officers could see the contents.

In State v. Jackson, 296 Or 430, 438 n 4, 677 P2d 21 (1984), the Supreme Court stated that it was an an open question whether the use of a flashlight at night to illuminate the interior of a stopped vehicle violates Article I, section 9. To be unlawful, a search must violate a protected privacy interest. State v. Tanner, 304 Or 312, 745 P2d 757 (1987). There is no privacy interest in the exterior of a box removed from a defendant during a lawful frisk. See State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986).

Citation profile

How this case has been treated — in progress