*1 January Argued affirmed October OREGON, Respondent, STATE OF GRODA, Appellant. RONNY 8272) (No. C76-12-17014, CA and Portland, the cause Mason, argued L. Thomas for appellant. filed the brief General, Attorney Assistant Burgess, W. John him on With respondent. the cause for Salem, argued General, Redden, Attorney A. were James the brief General, Salem. Laue, Al J. Solicitor and Thornton Schwab, Judge, Chief Before Buttler, Judges.
SCHWAB, C. J.
SCHWAB, C. J. there This of whether appeal presents question cause for the warrantless search of defendant, it, his in vehicle and briefcase found upon his arrival at a residence which was the scene of substantial The trial court illegal activity drugs. was, held that there denied defendant’s motion evidence from the and con- suppress resulting 167.207, victed him of criminal activity drugs, ORS after trial without a Defendant jury. as error assigns the denial of his motion to pretrial suppress.
The events leading up defendant’s arrest began when two undercover officers of the Portland Police Department the confidence of a who gained woman agreed to assist them in obtaining large quantities contact, amphetamines. She took the officers to her Mr. Tuttle, who took the officers to an address $1,100 northeast Portland. gave The officers with which to purchase jars each amphetamines, 1,000 car, containing tablets. While waited in the *3 house, Tuttle man, went into the and another named Shafer, house, came out of the took a a bag from parked automobile and returned to the house. About later, 10 minutes Tuttle returned with the illegal and was drugs arrested.
In the meantime arrived, reinforcements and when Tuttle returned to the car with the drugs six officers Gearhart) (Johnston, Huff, Houck, Zahler Burger, and entered the house where Tuttle obtained drugs. They observed Shafer at sitting the kitchen table with calculator, a large of assorted a quantity drugs, notebook and him. pencil front of Two of the officers recognized the odor of "fresh” Shafer amphetamines. and arrested, two other were then and the persons house was thoroughly searched. were in the house the telephone
While some time between 6 and and Officer rang p.m. p.m. Huff Huff answered it. The caller asked for Richard. busy said and to call Before Huff Richard was back. hang up, minute; this is could said: "Wait a caller my way they’re Ronny done and I’m on —Tell hypothesized that that he over.” Officer Huff said amphetamines, Ronny talking he was about because experience they part as knew from were dried message manufacturing process, Ronny’s and that interpreted amphetamines mean that could be to bringing now dried and he would be them over. were At the suppression hearing, stipulated the state they have meant that were done with dinner and could Ronny right over. Huff related would be Officer telephone message officers, some of to the other they Ronny decided wait for arrive at and to residence. waiting, persons least were at two other
While upon arrival. were arrested arrived on the scene and telephone call, Officer hour About one after waiting alone, two men Houck, was outside saw who up park car, the street the house drive across from get they approached, As Officer Houck asked and out. Ronny, defendant, who if one of them was carrying notebook, he was. a calculator and a said that the one Houck she was Defendant asked Officer (translated pounds referring waiting as LBs marihuana); go was, on him to she said she and told any was not related to in. This conversation went the door with other officers. Officer Houck opened she identified herself When it was men. waiting She stated to the the others as officers. yet.” Ronny, officers, he hasn’t been searched "This he was house, entered As soon as defendant Burger. by Officer Johnston and searched Officers weapons present. contra- not No or other Houck was Burger large found, removed band were but Officer money approximately $2,700 defend- sum of —from — keys pocket. from car were taken ant’s Defendant’s *4 given who to Gearhart and Johnston him and Officers proceeded went to defendant’s car. Officer Gearhart directly a brief- trunk, and found unlocked passenger compartment Johnston searched case. [290] the brief- Gearhart opened Officer nothing. and found defendant Thereupon, illegal drugs. and found case defend- drugs which money It is the was arrested. to suppress. ant sought stop of the to right police
Defendant concedes illegal the residence where him when he arrived at of on, right and concedes the was going drug activity had any determine if he him down to to police pat however, was no contends, there He weapons. person, a search of his justify cause to probable cause to search if there was probable that even circumstances justifying there were no exigent his automobile or the briefcase warrantless search of compartment. in the locked trunk his defendant as to both of with disagree We 1. call itself Arguably, contentions. cause to search give probable to police a crime. As is out pointed defendant for evidence of True Law LaFave, and Seizure: ”The Course Search of * * * * * * L Smooth,” Run 1966 Ill Forum Has Not (1966): of cause does not mean requirement probable "The guilt beyond a reason showing there must be 'a doubt’; ground what needed is 'reasonable able sufficiently by circumstances suspicion, supported man in the in themselves to warrant a cautious strong quantum required, In terms of the of evidence belief.’ substantially equivalent this is and of the reasonable needed for an arrest warrant * * without warrant grounds needed for arrest Forum, 259-60, in State approval L at cited with supra Ill 133, 142, 465 den Keith, rev v. call the event, we add to the telephone when any Houck at the defendant made Officer statement It avails cause. scene there was a surfeit actually who nothing defendant from Houck’s him did not assume Officer searched "I effect, saying, them that she was statement you him and direct cause to search have probable Cloman, 254 Or the search.” State carry out *5 *"* * (1969), tells us that if the officers arrest, the had cause to arrest is not rendered probable the officers another illegal expressed because Mickelson, 18 Or cause for arrest.” improper (1974), 526 P2d rev den we said: App
"* * * [Pjrobable cause to arrest must be evaluated police on the of the collective information of the basis only arresting rather than that of Cases officer. principle which courts have adhered to this are those arresting acted with an awareness or where officer that fellow reasonable belief officers have information * * *. probable to constitute These sufficient courts that effective law enforcement often recognize A requires police officer single police officers to work as a unit. in a working police organiza- a team or modem reasonably tion entitled to arrest or search on is summary command or But information another officer. joint police action there must be a somewhere probable nexus between the cause and the invasion of and the privacy, justification between the act.” 650-51. App at
Officer Houck’s with her state knowledge, coupled search, ment to the officers who then made the nexus. Defendant’s contention provided required his that, cause to search assuming probable even which he it did not extend to his automobile person, it, scene, or to the briefcase located in had driven to the Downes, is State v. contrary by answered to Greene, P2d 914 and State v. 30 Or 568 P2d
Affirmed.
BUTTLER, J., dissenting. (1)
I I not think dissent because: do respectfully call alone officers gave (2) warrant; I not do cause to search without assumption think the supports majority’s record the warrantless who performed or reasonable belief search acted with an awareness fellow officers had information cause, constitute and the state does not so contend. outset,
At we should remind ourselves where the motion to evidence suppress challenges search, seized as the result of a warrantless the burden proving validity on the prosecu 133.693C4).1 tion. ORS The burden of carries proof with it the McCormick, burden of persuasion. Evi (2d 1972). dence, § 336 ed E. Cleary With to the respect contention that the telephone call alone constituted probable cause, I do not think the state its has met burden; with respect searching officers’ having *6 acted on the basis of collective knowledge, state does not even urge so it is difficult proposition, understand how it has fulfilled its burden of per suasion.
The state’s
contention here is
only
that
the officers
had probable cause to search defendant
and his car
upon his arrival at the scene after
the tele
making
phone call. That contention conforms to the testimony
of the officers who searched defendant.
In my opinion,
those facts were
to give
a reason
able suspicion to believe that defendant had com
crime,
mitted a
them
permitting
him and make
stop
a
131.615(1),2
reasonable inquiry, ORS
and to
pat
down to
if
Ohio,
see
he had any weapons. Terry v.
392
(1968).
1868,
US
88 S Ct
Supreme Court said: considering sufficiency suppress this the motions to in "In kept without a in mind that a search and seizure case it must be per and that the state has the burden warrant se unreasonable * * *” legality the search in such a case. establish the 131.615(1) provides: ORS peace reasonably suspects person has "A that a officer who and, may stop person informing person committed after a crime officer, inquiry.” peace that he is a make a reasonable
[293 ]
did not feel
any object
might be a weapon,
Gressel,
further. State v.
could
go any
not
(1976).
The seems to majority say that exists there is "reasonable ground for suspicion,” from a law quoting review article quoted Keith, rev 133, 142, Or den 465 P2d If there is a difference between a reasonable suspicion (ORS 131.615(1)), which the legislature has provided arrest, authorizes a seizure, but not an "stop” or and a "reasonable ground suspicion,” which the majority states constitutes probable cause authorizing search, etc., we are not told. The problem may be the fact that Keith was decided in 1970 and the statute was enacted in 1973.
I do not that an mes agree ambiguous "Tell him sage: over,” done and I’m on they’re my way which was given to to the defend complete stranger ant at dinner time may give rise to a "well-warranted would suspicion”3 caller be more bringing drugs house. While that could make the message officer reasonably the defendant had suspicious committed the crime of criminal activity drugs, does not rise above that. Ford,
In State v. *7 held, we here, on more facts than provocative appear cause was to lacking permit a warrant- There, less search. defendant arrived at a house where officers were in the process successfully a search warrant executing amphetamines related An paraphernalia. officer he thought recog- nized present defendant as a the execu- person dining tion of a search warrant for illegal drugs year earlier. He had heard that also defendant had been involved in the illicit sale of within the amphetamines preceding days. This information would appear Evans, 189, (1974).
3 State v. 517 P2d rev den
[294] of the ambiguous be the substantial tele- equivalent Huff answered in the instant phone call Officer case: to arouse a reasonable enough suspicion. After defendant Ford entered house, the officer approached to within about three feet of him and observed a bent in the spoon breast pocket of the shirt defendant was The carrying. officer considered the bent spoon to be of the used to cook type amphetamine drugs, took it so, from defendant. As he did he noticed in the same vial, pocket which he also seized. The vial contained an olive-colored liquid which the officer’s experience told him was sul- amphetamine phate. Suppression of the spoon and vial was upheld by this court. Parks, State v. State v. Tarpley, Jr., 5 Or App the pipe, which drew police defendant,
attention to the was recognized as of a type hashish, used commonly to smoke but could also be used tobacco; to smoke yet presence its in plain view was held insufficient to provide probable cause. Cf. Chipley, rev den bar, In the case at the state at the stipulated that the suppression hearing could telephone message have meant were done with they dinner and that Ronny would be over. right
Given the officers and testimony searching court, in this I would contention of the state reverse reasons. The how- foregoing majority, for the ever, has assumed the burden of itself persuading that since Officer Houck had all of the (successfully) would be collective information which cause, constitute the warrantless search was I if passed valid. would she had that information agree defendant, on who searched or even Houck they had testified that assumed Officer they call about had information in addition knew. But did not. The already which they did not know anything. situation is as if Officer Houck *8 Cloman, v. 254 The relies on State Or majority had arresting There the officers arrest, cause to probable facts to constitute Here justification but did not articulate their properly. officers did not have sufficient facts to searching also justify Surprisingly, majority the search. Mickelson, P2d relies on App (1974), rev holds that even though den which have collective knowl- working may officers as a team cause, which would constitute that edge probable in way is not communicated such a that knowledge had awareness officer who searched the defendant an cause, or that there was probable reasonable belief never- recognized, warrantless search is invalid. We theless, that:
"* * * in in a working A officer a team or reasonably entitled police organization modem is or informa- summary arrest or search on command in joint police tion of another officer. But somewhere probable action there must be a nexus between and the invasion justification privacy, between added.) App (Emphasis the act.” 18 Or at 650-51. We also said: "* * * justified To hold the search this case would on
encourage police total hope knowledge of all those officers involved a case will if the probable later be found to constitute cause require think it challenged. search is We better to arresting reasonably an officer believe that his fellow he or officers have cause before arrests knowledge.” searches on the basis of their at 650. 835, 838, Crossen, 21
In State v. Or our concern for rev den we reiterated the state’s later” justify approach "search now and freedom; we said privacy invasion of individual rule "would exclusionary dilution of the that such a in the hope unlawful searches encourage after the fact.” cause would be developed case, we this the nexus Mickelson required result, majority opinion encourages As a missing. may justified warrantless searches which be fortui- tously post reverse, ex I would and therefore facto. respectfully dissent.