Opinion
No. 73-5368
Submitted on record and appellant's brief November 20, 1974
Reversed and remanded December 9, 1974
Appeal from Circuit Court, Lane County.
PHILLIP J. ROTH, Judge.
Lee Johnson, Attorney General, and W. Michael Gillette, Solicitor General, Salem, for appellant.
No appearance by respondent.
Before SCHWAB, Chief Judge, and FORT and TANZER, Judges.
REVERSED AND REMANDED.
The state appeals from an order suppressing as evidence some amphetamines found during a search of the defendant. The trial court found that the seizure was violative of the rule of State v. Elkins, 245 Or. 279, 422 P.2d 250 (1966), in that the officer did not have probable cause to believe the seized material to be contraband.
The material facts are not in dispute. The defendant was stopped in traffic and arrested pursuant to an outstanding warrant. In the course of a search pursuant to arrest, the officers found a vial of pills. Based upon his training and experience, the officer testified, he recognized the white double-scored tablets as amphetamines and he seized them.
In Elkins there was no evidence that the officer had cause to believe that pills found on the defendant were amphetamines. Here, as in State v. Cortez, 10 Or. App. 122, 125, 497 P.2d 1228, rev den (1972), and State v. Cooper, 7 Or. App. 252, 255, 489 P.2d 969, rev den (1972), the officer's training in the identification of dangerous drugs and his observations of the markings of these drugs gave him probable cause to believe that these drugs were amphetamines. Elkins is therefore distinguishable. See State v. Florance, 270 Or. 169, 527 P.2d 1202 (1974).
The trial court reasoned that the officer had no probable cause as required by Elkins because he acknowledged that the pills could have been aspirin. The officer testified in cross-examination that the peculiar markings of the pills indicated that they were what are called "cross tops, cross wheels, bennies." He was then asked if any substance, even aspirin, if run through the same press would have the same markings and he answered affirmatively. Probable cause does not require certainty. It requires well-warranted suspicion. State v. Keith, 2 Or. App. 133, 142, 564 P.2d 724, rev den (1970). The remote possibility that aspirin may have been run through a pharmaceutical press regularly used for the manufacture of amphetamines, does not diminish the officer's probable cause to believe that drugs with peculiar markings of amphetamines are in fact amphetamines.
Reversed and remanded.