STATE OF OREGON, Respondent, v. GARY LEROY DOUGLAS, Petitioner
Supreme Court of Oregon
Argued July 8, affirmed September 22, 1971
488 P.2d 1366 | 260 Or. 60
STATE OF OREGON, Respondent, v. GARY LEROY DOUGLAS, Petitioner.
488 P.2d 1366
John W. Osburn, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and Jacob B. Tanzer, Solicitor General, Salem.
Before O‘CONNELL, Chief Justice, and MCALLISTER, HOLMAN, TONGUE, HOWELL and BRYSON, Justices.
TONGUE, J.
Defendant was convicted of the crime of burglary after denial of a motion to suppress evidence upon the ground that defendant was coerced into opening his suitcase, which contained some of the stolen goods, by repeated representations of police
Because decisions in cases involving alleged illegal searches and seizures depend largely upon the particular facts of each case, we shall review the testimony as given at the hearing on defendant‘s motion to suppress in more than usual detail.
At about 1:30 a.m. on the morning of February 15, 1970, the city marshal of Hines, Oregon, was informed that a Texaco station had been broken into and that a man with white pants and a blue or green coat had been seen running out. The officer went to investigate and saw a man answering that description run away. Hines is a small town in a rural area in Eastern Oregon in which it is not normal for strangers to be seen running about late at night.
After being unable to find the man, the officer called a state police officer, who came to the scene. While the two officers were conversing, defendant came out of a motel room across the street, went to an outside telephone booth and then approached the officers to inquire about bus service. At that time defendant was wearing dark pants and a sport shirt.
The officers asked defendant his name. He gave his name and also the name of a brother-in-law living in nearby Burns. He then returned to the motel. The officers called the police dispatcher in Burns by radio telephone to check whether defendant had such a
The officers then went across the street to defendant‘s motel unit, knocked on the door and asked if they could come in. Defendant admitted that he “invited them in.” They told him of the call to check with his brother-in-law and asked him for further identification. While defendant was going through his billfold to produce further identification the city marshal looked into an open closet and saw a coat like the one worn by the man he had seen earlier that night. It was wet and muddy and the ground outside on that night was wet and muddy.
According to defendant, the officers then told him about the burglary of the service station and asked if they could look in his suitcase; that he declined to give them permission to do so; that the state police officer then said, “Well, I can get a search warrant,” and that he said “Go ahead and get it.” At another point, he answered in the affirmative a question asking whether “the officer led you to believe if you didn‘t consent that they would get—would try to get a search warrant.”
The state police officer testified, to the contrary, that he told defendant that he would “make an effort to get a search warrant.” He also testified that defendant was not then under arrest and that he had no intent to arrest him at that time and no reason to “hold” him, although he was suspicious of defendant upon finding the muddy coat. Thus, he testified that if defendant had asked to go he would have been allowed to go, although the police would have followed him. At that time they did not know that anything had been taken from the service station.
The officers did not inform defendant of any of his constitutional rights at that time. Defendant admitted, however, that he knew at that time that he had “the right to deny them to search [his] clothing or [his] belongings without a warrant” and “that was the reason [he] told them that night they couldn‘t search.”1
After “about 10 minutes,” according to defendant, his brother-in-law arrived, apparently as a result of a telephone call from the Burns police. Defendant testified that while defendant‘s brother-in-law was “outside,” apparently talking with the state police officer, he was alone with the marshal, who told him that “it would be better all the way round if I opened it myself because they could get a search warrant“; that “it was coming out” and “would be out there in just a matter of minutes.” His brother-in-law then came in and talked alone with defendant. The brother-in-law testified that he also told defendant that “they had a search warrant. It was on its way, that it would be searched anyway.” Defendant also testified that “when my brother-in-law made the statement, too, I could see no reason to—so I assumed they did have it, so why
Both the marshal and defendant‘s brother-in-law denied telling defendant that the officers had a search warrant “on its way.” Defendant‘s brother-in-law also testified that “they were in the process of trying to get a search warrant” and that he “tried to convince him to open it and to save any embarrassment and any requirement of a search warrant,” but that defendant said “it was none of their business. It was invading his private business and they didn‘t need any.”
When defendant‘s brother-in-law and the state police officer came back defendant‘s clothes were back in the suitcase, but by then the marshal had told the state police officer that defendant had previously dumped out the contents of the suitcase. The state police officer then asked defendant if he could look at the contents and defendant again dumped out its contents.
The state police officer then checked the contents and found a roll of green stamps, but no white pants. At that time the officers did not know that green stamps had been stolen. The marshal then said that there were “a lot more” green stamps when the suitcase was previously opened. Several more rolls were then found in the sink in the bathroom. The white pants were also found hidden in a blanket on a closet shelf.
Defendant was then arrested and informed of his constitutional rights. The elapsed time between the time when the officers called at the motel and the time when defendant opened his suitcase was “probably a half hour,” according to defendant.
Three days later, on February 18, 1970, defendant appeared with appointed counsel to be arraigned and pleaded not guilty to a charge of burglary not in a dwelling. The case was then set for trial on March 10, 1970. On March 3, 1970, defendant filed a motion for an order to suppress as evidence “the contents of a suitcase” upon the ground that “no search warrant was issued and said suitcase was only opened through coercion and duress” by the police officers. The motion was supported by a short affidavit alleging that the officers “repeatedly told me that they would obtain a search warrant for the suitcase” if he refused to open it; that he believed these representations and otherwise would not have consented to an examination of the contents of the suitcase.
A hearing was held on the motion to suppress, at which the officers and other witnesses, as well as defendant, testified to the facts as already stated. Based upon that testimony, and after observing the demeanor of the witnesses, the trial judge found at the conclusion of the trial that “the defendant was not coerced in any way to open the suitcase“; that defendant also was not told a warrant was on its way, but
In beginning a discussion of the law applicable to the facts of this case it is perhaps an understatement to say that the subject of illegal searches and seizures is one of the most confused and difficult subjects of the law today.
We start, of course, with the recognition that the
The Supreme Court of the United States has held that searches and seizures conducted without search warrants “are per se unreasonable,” subject to “a few specifically established and well-delineated exceptions,” and that the application of these exceptions is dependent upon the presence of “exigent circum-
When, as in this case, the state relies upon a “consent search” as the basis for a search and seizure without a warrant, the question whether valid consent was given to the search is generally held to be a question of fact and the state has the burden to prove by “clear and convincing evidence” that such consent was given.7
This court, in State v. Marshall, 234 Or 183, 380 P2d 799 (1963), agreed with this view. We held, however (at pp 184-185), that in such a case the trial court
Later, in Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968), we affirmed findings by a trial court that admissions made to the police by petitioner were not “coerced” and held (at p 487) that if the evidence sustains such findings of fact they will not be disturbed by this court unless the facts upon which such findings are made are “insufficient to meet constitutional standards of due process.”
Thus, the primary question to be decided in this case is whether the evidence was sufficient to sustain the findings of fact by the trial court and to satisfy the requirements as stated by this court in State v. Marshall and Ball v. Gladden.
This is a different question from that presented to this court in State v. Williams, 248 Or 85, 432 P2d 679 (1967). In that case defendant consented to a search after arrest and during interrogation at the police station. Under those circumstances, we held that the police had a duty to affirmatively inform defendant of his
“* * * The principle announced in Escobedo v. Illinois, 378 US 478, 84 S Ct 1758, 12 LEd2d 977 (1964), as interpreted by us in State v. Neely, 239 Or 487, 395 P2d 557, 398 P2d 482 (1965), is applicable not only to interrogations leading up to confessions but is equally applicable to interrogation aimed at obtaining the defendant‘s consent to
search and seizure when he is a focal suspect in the custody of the police. In effect, the request to search is a request that defendant be a witness against himself which he is privileged to refuse under the Fifth Amendment . Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 LEd2d 694, 10 ALR3d 974 (1966), made it clear that pre-interrogation warning by the police was necessary to safeguard thisFifth Amendment privilege. * * * TheFifth Amendment privilege is recognized in these cases because its application was deemed necessary as a prophylaxis against coercive police practices. The same prophylaxis is necessary whether the interrogation is used to obtain a confession or to establish a suspect‘s guilt through his disclosure of evidence pointing to his guilt. * * *” (Emphasis added)
The thrust of Miranda, Neely, and Williams is that “custodial interrogation” of a defendant who has been arrested and is then being interrogated “contains inherently compelling pressures which work to undermine the individual‘s will to resist.” See Miranda v. Arizona, 384 US 436 at 467, 86 S Ct 1602, 16 Led 2d 694 (1966). See also State v. Taylor, 249 Or 268, 271, 437 P2d 853 (1968), and State v. Cook, 242 Or 509, 514, 411 P2d 78 (1966). Because of the “inherently compelling pressures” in “custodial interrogation” of an arrested person, and as a “prophylactic measure” to discourage “third degree” practices by police during such “custodial interrogations,” courts in these cases have required the state to prove not only that the defendants knew of their constitutional rights, but that they were expressly informed in clear and unambiguous terms of their right to remain silent, to advice
Both the Supreme Court of the United States and this court have made it clear, however, that these “prophylactic” rules and requirements for application during the “custodial interrogation” are “not intended to hamper the traditional function of police officers in investigating crime,” including the interrogation of suspicious persons in their homes, in the presence of friends or relatives, and before the process has shifted from investigatory to accusatory. See Miranda, supra, at 477-478, including n. 46.9 See also State v. Cook, supra, at 514. In State v. Taylor, supra,
It is true that in Miranda the Supreme Court of the United States stated, at 444, that the “prophylactic” rule of that case also extends to a defendant who is “[O]therwise deprived of his freedom of action in any significant way.” See also Orozco v. Texas, 394 US 324, 89 S Ct 1095, 22 Led 2d 311 (1969). As yet, however, neither that court nor this court has extended the “prophylactic” rule of Miranda to require an affirmative warning of
It is true, as stated by the dissent, that the city marshal testified the defendant was not free to go. The state police officer, however, who was in charge of the investigation, testified that at the time when defendant opened his suitcase the police did not yet know anything had been taken from the service station; that the officers had no reason to hold him at that time, but had no more than “suspicion” and that defendant would have been permitted to go if he had so requested. In addition, there was no evidence defendant was told that he was not free to go. The mar-
Thus, in this case there was substantial evidence to support the findings by the trial court that defendant was not yet a “focal suspect” and was not under arrest or in the “custody” of the police.10 Indeed, although the police were suspicious of the defendant, they were still investigating a report that the service station across the street from defendant‘s motel room had been broken into.11
It follows, in our view, that at the time of the request for permission to examine the contents of defendant‘s suitcase, he was not being subjected to “custodial interrogation” within the meaning of Miranda and Williams, as we understand these decisions. That the “setting” may have been somewhat “coercive in character” (as also contended by the dissent) is not of itself sufficient, in our view, as a showing that constitutional standards of due process have been violated, so as to require proof of affirmative warning of
For all of these reasons, we hold that under these facts and circumstances the police officers were under no duty to affirmatively inform defendant of his constitutional right to refuse consent to a search of his suitcase before asking if he would consent to
The question remains, however, whether defendant‘s act of opening his suitcase was involuntary or coerced (both as a question of fact and also as a matter of constitutional due process) not because of the “setting” alone, but because of the testimony that before doing so defendant was told both by the officers and also by his brother-in-law that otherwise the officers either would or would attempt to get a search warrant. Cf. Ball v. Gladden, supra, at 487. As yet neither the Supreme Court of the United States nor this court has decided this question and the decisions by other courts are in some conflict.
In Pekar v. United States, 315 F2d 319 (5th Cir 1963), consent to search of luggage by a defendant was held to be invalid even without any statement by the officers that otherwise they would get or apply for a warrant. It did not appear, however, that the defendant knew of his right to demand a search warrant. And in the later case of United States v. Boukater, 409 F2d 537 (5th Cir 1969), the same court (at p 538) distinguished between statements by officers that they would attempt to get a search warrant if consent were refused from statements that they would get a search warrant.
In most cases, however, the courts have sustained searches following findings that consent by defendants was voluntary even after being told by officers that otherwise they would, could, or were going to get search warrants. See United States v. Myers, 378 F2d 398, 399 (3d Cir 1967); Hamilton v. State, 260 F Supp 632, 633 (ED NC 1966); Simmons v. Bomar, 230 F Supp 226, 229 (MD Tenn 1964); Kershner v. Boles, 212 F Supp 9, 10 (NDWVa 1963); United States v. Haas, 106 F Supp 295, 296 (WD Pa 1952); Gatterdam v. United States, 5 F2d 673, 674 (6th Cir 1925); Thurman v. State, — Tenn, 455 SW2d 177, 180 (1970); State v. Hamilton, 264 NC 277, 141 SE2d 506, 512 (1965); State v. Yoss, 146 Mont 508, 409 P2d 452, 455 (1965); and People v. Rupar, 53 Cal Rptr 70, 71, 244 Cal App 2d 292 (1966). See also United States v. Curiale, 414 F2d 744, 747 (2d Cir 1969); United States v. Boukater, supra, at 538 n.2; and United States v. Manarite, 314 F Supp 607, 613 (SDNY 1970). But see United States v. Baldocci, 42 F2d 567 (ND Cal 1930); United States v. Minor, 117 F Supp 697, 698 (ED Okla 1953); and State v. Lewis, 80 NM 274, 454 P2d 360, 363 (1969).
None of those cases discuss the distinction, as stated in Boukater, between a statement by an officer that if consent were refused he would get a search warrant, which might be considered as coercive and improper in the absence of a showing that the officers then had good cause and sufficient grounds for getting a search warrant, as compared with a statement by an officer that he would apply for or get a search warrant. In one of the cases, however, the court expressly held that:
“There was no threat of the officers doing anything other than they had a legal right to do.”12
It is also significant that few of those cases dis-
In this case, however, as previously stated, defendant was not under arrest or detention. It is also important to note again that the defendant in this
Since the primary issue to be decided is whether the consent was voluntary or was coerced, we doubt whether the ordinary person, when confronted with a request by an officer to consent to a search, would discriminate between the statement that otherwise the officer would get a search warrant, as compared with a statement that otherwise he would apply for a warrant. If, however, it be considered that such a distinction has controlling significance, and if it also be considered that the evidence in this case was not sufficiently “clear and convincing” to establish that the officer told defendant that otherwise he would apply for a warrant, rather than get a warrant, we nevertheless reach the same result under the facts and circumstances of this case. This is because the defendant in this case testified that what finally “prompted” him to open the suitcase was what his brother-in-law (not the officers) did and said. Thus, he testified that his brother-in-law “kept after me to open the suitcase” and told him, when he said he would “wait for the search warrant,” that “they have got it.” In addition, this is not a case in which defendant merely gave verbal consent to a search. Instead, defendant deliberately opened his suitcase, dumped out the contents and did so not only once, but twice.
Under these facts, together with all of the other circumstances of this case, we hold that there was suf-
For these reasons we affirm the decision of the Court of Appeals which, in turn, affirmed the decision of the trial court and the conviction of the defendant.
Affirmed.
BRYSON, J., specially concurring.
I concur in the result. On the facts, this is not a Miranda case. Defendant was under arrest, in the custody of two police officers. Therefore, the search was pursuant to a lawful arrest. State v. Hoover, 219 Or 288, 347 P2d 69 (1960); State v. Elk, 249 Or 614, 439 P2d 1011 (1968).
The evidence disclosed that some of the stamps in the suitcase of the defendant had been removed and placed in the bathroom where they could be disposed of easily.
The purloined goods, “stamps,” were subject to “flushing,” the same as drugs or any other disposable item the subject of reasonable search, and this case falls in the same category as such search and seizure cases involving drugs. State v. Peterson, 3 Or App 17, 469 P2d 40 (1970); State v. Murphy, 2 Or App 251, 465 P2d 900 (1970).
I do not believe the rules laid down by the United States Supreme Court pursuant to the
HOLMAN, J., concurring.
I agree with the dissenting opinion of the Chief Justice insofar as it holds that the coercion which results from threatening to do what the law requires is not the kind of coercion which invalidates permission to search.
However, I believe it was not necessary to inform defendant of his constitutional rights prior to getting his consent to search, for the same reasons specified in my dissent in State v. Williams, 248 Or 85, 94, 432 P2d 679 (1967).
O‘CONNELL, C. J., dissenting.
This case presents two principal questions: (1) whether the consent to search was obtained by improper coercive methods, and (2) assuming that coercion did not vitiate the search, whether it was necessary to inform defendant of his constitutional rights before making the search.
The majority opinion concludes that the consent to the search was voluntary because defendant testified that he was prompted to open the suitcase as a result of his brother-in-law‘s influence and not that of the officers. In addition, importance is attached to the circumstance that defendant did not merely give his verbal consent to the search but deliberately opened the suitcase and dumped out its contents. It is
It is unnecessary to rest the decision on the foregoing evidence. The officer‘s threat that he would obtain a warrant if defendant did not consent to the search did not constitute the kind of coercion that renders a search involuntary. Concededly such a threat may be coercive in the sense that an accused would not have consented to the search in the absence of the threat. But not all coercion inducing consent to a search is constitutionally impermissible. If the officers threaten only to do what the law permits them to do, the coercion that the threat may produce is not constitutionally objectionable.
The majority holds that defendant was not entitled to be informed of his constitutional rights because he was not yet a “focal suspect” and was not under arrest or in the “custody” of the police. I disagree. In my opinion accused was clearly a focal suspect at the time he was interrogated. Even if we were to accept the view that the facts must be sufficient to establish probable cause before a person is a focal suspect, there were such facts in the present case.16 And at the time the police elicited the information from the accused, he was “deprived of his freedom of action” in a “significant way.” Miranda v. Arizona, 384 US 436, 444, 86 S Ct 1602, 16 L Ed 2d 694, 706 (1966). The city marshal testified that the accused would have been detained if he had attempted to leave. As I indicated in my dissent in State v. Travis, 250 Or 213 at 218 et seq, 441 P2d 597, 599 (1968), I would
In State v. Williams, 248 Or 85, 432 P2d 679 (1967) we held that pre-interrogation warnings are necessary not only where a confession is sought but also where the interrogation is aimed at obtaining the defendant‘s consent to search and seizure. The principle announced there should be applied in the present case. There was no warning prior to interrogation. Therefore, the evidence disclosed by the search should have been suppressed.
MCALLISTER, J., dissenting.
I agree with the Chief Justice that the defendant was “a focal suspect at the time he was interrogated” and, as such, entitled to be informed of his constitutional rights under Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed2d 694 (1966). I therefore dissent.