*1
Argued
April
November
affirmed
Respondent,
STATE OF
OREGON,
Appellant.
FRANCIS LEVI ELK,
Arthur R. Barrows, Attorney, District *3 argued the cause Pendleton, and filed the brief for respondent.
Before Chief Justice, and McAllister, Perry, and Wood- Goodwin, Holman O’Connell, Denecke, Justices. rich, (Pro Tempore). J.
WOODRICH, burglary of Defendant was convicted not in a dwell- ing. assigns as error the trial He court’s denial of his suppress pre-trial allegedly certain motion to evidence illegal by an search and seizure. obtained Sunday, September 25, 1966, the Pendleton On Oregon and Police office learned sheriff’s gun pickup parked a shot from a the theft truck police Pendleton. The were in- a reservation near on
61? gun formed the owner of the that a blue 1957 or very 1958 Oldsmobile or Pontiac had been seen near just pickup prior to the theft. When he went on p.m., September shift at 4:00 25, 1966, State Police Officer Eothermel was advised of the theft, the de- scription suspected description and vehicle, gun. of the stolen There was some confusion in the precise officer’s information over the make of the gun. patrol stolen shot While on Officer Eothermel was advised as to the location of a car similar to the having one described as been seen near the scene of p.m., September the theft. About 7:00 Of- unoccupied ficer Eothermel found the car on a side road in a rural area east of Pendleton. The front of into ear was headed the roadside ditch near a projected fence. The rear of the car into the traveled portion roadway about two feet. The officer immediately suspicious was the vehicle was the having one described as been near the scene of the theft. stopped upon investigation
The officer ob- open approximately served that trunk lid was touching 12 or inches. Without the vehicle he was open sufficiently able to see into the trunk to notice gun quantity of a shot butt or rifle and a of beer. Upon seeing immediately the butt of the he sus- being pected gun. the stolen shot this The officer a search warrant. did not obtain The officer raised further the trunk lid and determined from the serial gun that it number of the shot fact the stolen gun. observed that the trunk He also was full of beer, extending the trunk from one side of to the other and *4 height body within six to a inches of the line stacked The beer was later counted the trunk. and deter- six-pack unopened cases of beer. mined to be Prior C18 raising the of the trunk,
to further lid the officer was verify gun gun not able to that the was a shot nor quantity he the was able determine of beer located investigated in the the At the time the trunk. suspect vehicle he knew who the of the was owner vehicle. endangered he
He did not feel himself when looked unoccupied. the knew was into trunk because he the car raising the time of Officer Rothermel’s the Either at shortly thereafter other officers arrived trunk lid gun the The shot and beer were removed at scene. custody. into vehicle and taken vehicle from the gun was towed into town. After the identi- was later the area and soon the fied the officers searched charge was located he was arrested on defendant raising larceny. the of the The arrest followed by 20 to 25 minutes and was effected trunk lid some yards from of 200 to the vehicle. at a distance gun the shot and beer, After officers had seized larceny it was arrest, learned and after the of beer had been stolen from an amount officers that burglary was the defendant victim and subse- The officers had not quently for this crime. arrested theft of the beer at time advised been at time the de- were seized or and beer shot gun, the theft the shot arrested for was fendant discovery Rothermel its Officer time of at the but was suspected was stolen. defendant that the beer orig- questioned at the time of the beer his about not inal arrest. suppress refusal evidence
The trial court’s premise apparently question based on the was necessary fruits to disclose the no question. crime quest, implies invasion and that
“Search
619
implies some sort of
actual or
force,
constructive,
Hilton,
v.
445,
much or little.” State
It could be that no there was “invasion” privacy this defendant’s in because the case by leaving partially opened defendant his car trunk keep public made no effort to its contents from view. holdings opinion, Because of the later in this we need raising not decide whether the officer’s minimal aof opened partially trunk car lid elevated his conduct of a status search. argues
The state
that if the officer’s conduct is
a
deemed to be
it
search, was made
an
incident to
exception
a lawful arrest. An
to the demand for a
warrant exists
search
where the search is made
an
a
incident to
lawful
State
arrest.
v. Roderick, 243
(1966);
Or
P2d
243
17,
438,
412
Or
ÍÍ# [*] [*] felony “(3) When fact has been committed major or a traffic as defined in offense, subsec- (5) tion of ORS has been 484.010, committed, believing person he has reasonable cause for * * to have it arrested committed A” making justify an To officer an arrest without a suspicion Likewise, warrant mere is insufficient. by unsupported belief facts or circumstances is in but it is not essential that sufficient, the officer abso lutely being that know an offense is committed. State Huffy (1931). al, Or 295 P et v. probable have cause to
officer .must believe in the ü2'0 is, circumstances
guilt suspected party; must exist which lead a reasonably prudent would v. the accused. State man to believe guilt Duffy, In probable the existence supra. determining facts cause, only prior those known to the may considered, be because of his alleged rule that an unlawful search is not made lawful of crime it light. the evidence which brings Roderick, Chinn, supra. supra; *6 that no con The defendant concedes search was of the car trunk. ducted until the officer lifted the lid had reliable information that At that time the officer that the lar larceny committed; the crime of had been of a truck from the bed ceny pickup was accomplished a Pendleton, sparsely a near on reservation parked year a car described area; make, that to settled of and color vicinity larceny; the seen the larceny. of subject a was the gun that shot number of the make and serial the shot knew the officer knowledge with this discovered Armed gun. the description previously car matching given, a country a ditch on road in re partly parked with the of butt a shot Pendleton, area out of mote trunk in the of ear. We hold rifle visible gun a reasonably would warrant prudent facts that these the owner of the car was guilty man to believe gun. the shot Absolute larceny knowledge until the officer checked possible have been may not on and made some other number the serial noted absolute above, but as knowledge investigation, a valid to arrest for a making not a precondition is warrant. without felony for a requirement war exception is and seizure made as an inci the search where
rant, is founded arrest, upon necessity lawful to a dent
621
protect
police
police
gather
and to enable the
supra.
the fruits of the crime.
Chinn,
State v.
To
exception,
come within the
the search must be an inci
prin
dent of the arrest and must be reasonable. The
ciples
applied
to be
were set out in State v. Chinn,
supra, and
not
need
be restated. Recent authorities on
fully
the warrantless search of an automobile are
set
McCoy,
forth in the
case
State v.
249
160,
Or
437
(decided February
1968).
P2d
23,
determining
given
In
the reasonableness of a
willing
the courts are more
to sanction searches of
types
property.
automobiles than searches of other
Preston v. United States, 376 US
84 S Ct
(3964); Cooper
L Ed 2d 777
v. California,
If cause for an arrest independ exists ently brought light by of evidence to the search, the
622 precedes fact the the arrest does not ren search destroy the search nor its character der unreasonable supra; Chinn, an incident arrest. v. of the State supra; McDaniel, Hoover, v. State 115 Or People (1925); P Williams, 231 P 373 v. 965, 237 Rptr (1967). P2d 60 Cal 472 In Cal2d burglarized defendant case, the last cited the men’s clothing thereby triggered night an store at and alarm. nearby police by A unit was advised radio that seeing ringing. Upon alarm in the store was defend a.m., car alone on the street at 5:30 one and ant’s burglary blocks from scene of one-half and him. made followed When de U-turn stop sought signaled to he fendant was evade the police high-speed evasive tactics. Defendant ulti mately stopped police car and fled on foot. his car and entered trunk of defendant’s seized 29 burglary. fruit of the suits, men’s Fifteen twenty later defendant was located and ar minutes a house from in the rear of one block the de rested car. The court held that the was an fendant’s probable police had arrest, lawful incident on information arrest based known them cause to prior held not the search. search was remote space the site of the arrest. In the time or from examining “the total factual situation case, instant privacy,” right light constitutional of the in the supra, find Chinn, we the search reasonable v. State space. and to time in relation can be unresonable if it A search nonetheless is supra. intensity. Chinn, Here, of undue assuming was an invasion, there defend invasion, Immediately upon privacy a fur was minimal. ant’s raising lid trunk the shot and the ther fully plain sight beer were visible. cases
623 exploration or'ransacking necessary. No Tlie ar directly ticles seized were related to the crime of lar ceny. gun The officers seized the shot and some hand previously tools stolen the defendant from the pickup. subject These are articles that were to seizure. 141.010(1); supra. O RS State Chinn, merely Evidence is not rendered inadmissible opportunity may because an have existed to obtain a search warrant. United States v. Rabino witz, 339 US (1950); 56, Chinn, 70 L S Ct 94 Ed 653 supra. any In the instant case it is doubtful, event, meaningful whether opportunity the officers had upon obtain search warrant. The officer came suspect Sunday, vehicle in a remote area aon not knowing carrying it would be the fruits of a occupants, crime. The officer knew that the in all like lurking nearby, were lihood, and, fact, were soon nearby. require discovered To an immediate halt to investigation, magistrate prepare seek out a necessary papers to obtain a warrant, under these appears to be circumstances, unreasonable.
Lastly, argues the defendant that even if the search and seizure the shot is deemed lawful, seizure of the beer was not. He relies on State v. (1966). police, Elkins, 245 Or P2d 250 If the the.course of lawful search on one crime, discover the though fruits of another even crime, such other crime newly serious one, be a more discovered evidence may Krogness, be seizable. State v. 238 Or 135, 388 (1964); v. Johnson, P2d 120 232 Or 374 P2d (1962). contrary, Elkins does not hold to the but newly discovered evidence before is seizable the suspicion have a factual must basis for officers newly evidence. discovered
* [*] However, we believe the balance be- public requires tween the and the individual some *9 by protection property rights way for individual of at least a minimal factual basis the for officer’s suspicion property and resultant unre- seizure lated the crime to for which the arrest is made. plain wording The of the constitutional mandate requires Elkins, it.” 291. atOr probable In the case the cause instant officers had larceny; believe car had involved in a the to the been larceny positively fruits of the were identified such search; a lawful the fruits of lar- result of ceny commingled trunk of were with the beer in the Avas a most and the beer unusual ear; defendant’s (it quantity to within 6 filled the trunk of the car body trunk). line The officers inches facts Avere sufficient knew defendant. These upon Avhich belief that the to base officer’s cause requirements Elkins, Avasstolen. beer supra, are met in this case. (cid:127) correctly denied defendant’s motion
The trial court suppress. Affirmed. specially concurring. J.,
O’CONNELL, opinion upholds majority in the ground it present that incident on the case erroneous. A search and seizure cannot arrest. is This place which of an arrest took at an “incident” be any the more so asser- time. It not made later is part of one that “the arrest and search Avere tions uninterrupted transaction” or the search is “not place from site of the arrest.” time remote present and in the case the search seizure However, ground. upheld upon another The information can be together had with received, ob- Rothermel his Officer lifting tbe trunk was sufficient lid, servations before give probable him cause to believe that the stolen Upon trunk. of this informa- was in the basis difficulty obtaining there would have been no tion, But to obtain a warrant it would search warrant. necessary car for Rothermel to leave the have been person if could not know when the he left it he it car there would return and drive who drove the away together with the it. Rothermel had evidence up had in the been informed that those who driven vicinity. car were in the immediate Because of the losing sought, if a warrant were risk of the evidence impracticable it was to obtain a warrant. Under these a search of the trunk was reasonable. circumstances *10 of the lawful search the officer ob- In the course According description served the beer. to his “the large quantity full it.” The beer, trunk was property, fact that it was with other stolen the location give other factors were sufficient to car, of the and probable had officer cause to believe that the beer probable having cause to be- been stolen. The officer, right had the stolen, lieve that the beer was to seize essentially principle it. is the same that which applied searching when an officer the course of is pursuant a warrant or an incident an to to arrest of a crime other than that which discovers evidence prompted In such cases the officer search. is en- probable what he observes if he titled seize has to that it is evidence of the cause to believe commission crime. of another opinion. in this concurs J.,
Holman, concurring. specially DENECKE, J., part specially concurring in that of the I concur probable stating opinion had that cause to search the trunk for the stolen and that it was impracticable to secure warrant. I' am not called upon practicable to decide a case which it was secure a warrant but none was secured. question
I it believe a close is whether the officer probable had cause to seize the beer. It is not neces- sary question. to decide that The officers had the right, perhaps duty, and owed the defendant impound the car defendant’s and its contents. See interpret testimony I 142.210. ORS of the officers they to be that did not seize the beer but took it into custody, safekeeping. their and inventoried for it, They they did before this had the ear towed in for They storage. did the same with tool's and wrenches which were found the trunk. There is no claim that property these were not tools wrenches of the saw) (except suspicion defendant and no was ever that voiced the officers believed these tools and saw) (except wrenches were the fruits or evidence a crime. no There is inference the officers duty impound right used the the car aas subter- fuge car. to search the
After the officers learned that the beer was stolen they change constitutional reason there is no cannot custody their the motive for beer. joins specially concurring in this J.,
McAllister, opinion.