*1 Fеbruary July Argued and submitted reversed and remanded reconsideration 3, 1989 (308 405) petition August denied for review denied October OREGON, STATE OF Appellant, HANDRAN, TODD ALEX Respondent. A48022)
(10-87-03818; CA *2 Attorney General, Salem, Fussner, Jonathan H. Assistant appellant. argued him on the brief were With the cause Frohnmayer, Attorney Virginia Linder, Genеral, and L. Dave General, Solicitor Salem. argued Deputy Defender, Salem, Hall, Public
Lawrence J. Gary respondent. D. the cause for Babcock, With him on the brief was Defender, Public Salem. Presiding Judge, Buttler,
Before and Warren and Judges. Rossman,
WARREN, J. dissenting.
Buttler, J.,P.
WARREN, J. with theft in the first charged degree.
Defendant was sup- order appeals ORS 164.055. The state trial court’s pressing evidence seized without warrant while suspect. for another searching reverse. to a p.m., dispatched
At 10:30 Officer Putnam was Safeway store, where told him that two men had employes 12-packs employes stolen four of Budweiser beer. The 16 and suspects ages described thе and estimated their to be later, responded burglary Putnam to a 20. Less than two hours one block from the approximately call at located residents, Hahn, Safeway reported Langlois store. player speakers that a cassette and two had been stolen stereo between 10:30 and 11:15 that from their sometime names of the evening. They told Putnam brand him the items and the model gave description a detailed occu- player. Langlois suspected number of the cassette door, “they which was next because pants residents suspicious.” dеscription seemed kind of His of those description suspects Safeway matched the theft. *3 of the Putnam talked part burglary investigation, As Yentz, apartment complex. another resident of the Yentz he told Putnam burglary, had no information about the but approximately p.m. that at 10:40 he had looked out of his the young window and had seen two men who matched description suspects Safeway carrying of the theft four up apartment half-cases of Budweiser beer the stairs of the building. Yentz and the descriptions by
On the basis of the Safeway employes, Putnam and anоther officer decided solely investigate contact residents apartment, on the door of the knocking beer theft. Before minutes and heard two male Putnam stood outside for several door, and voices and a female voice. He then knocked on the woman, a it. Putnam saw defendant and but opened defendant man voice he had heard. He he did not see the second whose 20 Budweiser beer cans scattered approximately also saw Defendant, 19, appeared to have apartment. age around the him that hе wanted to talk drinking. been When Putnam told man, that no one else was in to the other insisted apartment. Putnam arrested defendant for theft of the beer. and
After defendant was handcuffed turned over to officer, Putnam, the other without entered seize the of the theft and to look beеr evidence suspect. bathroom, He into the for the other walked where might thought suspect hiding, be and saw two stereo speakers in the shower stall. He also saw a cassette stereo player open equipment on the floor of an closet. The matched description property burglary taken in the suspect, Prim, next door. Putnam found the other refrigerator behind the in the kitchen and arrested him. The woman was not arrested. Putnam then seized the stereo com- ponents placed living Lang- them a on table room. lois and Hahn identified items аs the stolen from apartment, equipment their and Putnam returned the them. entry
The trial court held that Putnam’s warrantless apartment, into defendant’s Prim, search for and arrest of held, however, were valid. It that the seizure of the equipment transportation stereo and the of those itеms to the living seizure, room was an unlawful search and because the get had failed to seizure was not justified “exigent under the circumstances” to the requirement, exigency warrant because there was no neces- sitating the immediate seizure of those items.
The state does nоt contend that the seizure of the equipment justified stolen stereo was as incident to defen- only argues dant’s or Prim’s arrest for theft of the beer. It “plain the seizure valid under view” doctrine. Defen- challenge holding dant does not nam’s the trial court’s that Put- into the to search for and to arrest question. valid, Prim was and we do decide that Defendant contends that the seizure of the stereo without warrant or circumstances violates Article section argues and the Fourth Amendment. He further even if *4 components plain they view, the stereo were in were not sub- jеct seizure, to because Putnam not at that time did “know” they According property defendant, were stolen. to only Langlois and Hahn identi- was identified as stolen after fied it as such.
550 address, first, seizure of the stereo whether the I, doc “plain Article section 9. The view” equipment violаtes to Fourth developed as an originally trine Brown, v. See Texas 460 requirement. Amendment warrant 730, 1535, (1983); Coolidge L 737-39, 103 S 75 Ed 2d 502 US Ct 443, 464-65, 2022, Ct L Ed New 403 US 91 S 29 Hampshire, v. Keller, (1971); 265 P2d 568 2d 564 State v. 510 (1973). have Oregon courts described doctrine Although Amendment, they have not deter cases under the Fourth mined its under Article section 9. status permits seize plain The view doctrine officers to (2) intrusion; (1) is valid the discov property prior if: (3) inadvertent; immediately apparent and it is ery is they may be evidence of police that the items that observe crime, or to seizure. Texas v. subject contraband otherwise Brown, Coolidge supra.1 Hampshire, v. New supra; “[P]lain warrantless seizure enough justify view alone is never v. 403 at 468. Coolidge Hampshire, supra, evidence.” New US for Prim Because the search analyze not we treat them as lawful challenged, are view is better under plain case on that basis. The dоctrine entering as an officer’s justification stood an extension of premises independent exception than as an the warrant Brown, ques The requirement. supra, Texas v. 460 at 738-39. Oregon. is of the part tion is whether it also law law, authority under state considering Putnam’s seq et we first exаmine the relevant statutes. ORS 133.525 an do with we Although establish officer can a warrant. what actu usually “search” it refer to property. both the search and the seizure ally authorizes for the for the legislature provided In ORS ORS 133.565.2 133.585 Supreme application The Court has held that of the doctrine United States cause, suspicion, requires mere officer have reasonable Hicks, See is to seizure. Arizona 480 US believe L 2d 347 107 S Ct 94 Ed provides, part: ORS 133.565
“(2) state, particularity: describe The warrant shall or u* * * * * “(b) searched, designation of the to be or the location and The nаme searched; places to be or “(c) object things constituting search and to be authorized
seized[.]” *5 seizure of certain in objects discovered the course of the execu- tion of a search warrant: scope
“The of search shall be such as is authorized reasonably necessary the warrant and is per- to discover the specified things Upon discovery sons or per- therein. things specified, sons or so possession the officer shall take or custody of them and search no further under warrant. the course the search the discоvers If of officer things, specified not in the which the has officer probable cause to believe to be to seizure under ORS 133.535 which the expect probable did not have cause to officer find, possession shall also take officer things (Emphasis discovered.” supplied.) ORS provides 133.535 that an may officer search for and seize: “(1) Evidence of or concerning information the commis- offense;
sion of a criminal “(2) Contraband, crime, the fruits of things or otherwise criminally possessed; “(3) Property used, possessed has been or is for the purpose used, being to commit or concealthe commission of offense; an “(4) A probable for whose arrest there is cause or unlawfully
who is held concealment.” What may be seized after a lawful but warrantless is necessarily limited to what the officer could have seized after еntry under a valid warrant. We hold if an officer is where be, he has a right under either a warrant or an exception to the warrant requirement, he seize anything discovers, that he if the requirements of ORS 133.585 are met. Here, 3. Putnam did no more than what a warrant would have authorized him before, tо do. As we said does not contend that Putnam was not legitimately inside the to search for Prim or that he had reason to expect that he would find the stereo components. Therefore, only second element in ORS 133.585 at is issue. Putnam did not have to “know” that the was stolen initially when he sаw it. requires ORS 135.585 only that an officer have prob- able cause to believe that an is object subject to seizure. Prob- able cause require does not certainty. Herbert, State v. 302 Or On the basis of the burglary property, Put- description of the stolen
investigation and the believe thаt the stereo probable nam had cause to complied the statute. fruit of crime. His actions was the portions remaining question is whether 4. The quotation above are consis- emphasized ORS 133.585 are, they conclude that section We tent with Article require- seizure satisfies the reasonableness because such a pre- is not a provision. plain view doctrine ment of that to believe that who has cause tense for officer is an seeking present evidence is avoid However, already an officer who has opportunity to do so. eyes to seizable made lawful intrusion need not close his he as a to find but that sees expect items that did is also consis- of that intrusion. That conclusion *6 consequence Owens, (1986), P2d 524 302 Or 729 tent with State v. the the defendant’s in held that seizure of which court arrest, incident to her was during found a seаrch purse, clutch 9, law- because the officer had valid under Article section to had cause fully purse probable what he seen inside believe was contraband. Amendment. The seizure did not violate the Fourth Brown, Hicks, Coolidge v. supra; Texas v. supra;
Arizona v. supra. Hampshire, New in the evidence. suppressing
The trial court erred and remanded. Reversed BUTTLER, J., dissenting. P. the officers were author- I do not believe that
Because Prim, I to search for and arrest ized to enter the majority decided and would would not reach the issue I dis- Accordingly, grounds. affirm the trial court on different sent. entry that the warrantless
The state contends lawful,1 there were because defendant’s was 1 holding challenge majority says that that does not the trial court’s not, Although in entry so Prim was valid. defendant does to search and arrest for error, does, words, point many on that he that the trial court’s conclusion contend lawful, apparent response argument search were to the state’s that relating pages quoting discussing cases to the brief from and devote over four of his to authority I do not see without a warrant. to enter say jоined appeal. affirm the trial court issue is not on how we can that the from those it stated. reasons different
553
exigent
entry:
justified
circumstances that
immediate
find
“to
(Prim),
suspect
and arrest the
seizethe
second
and to
evidence
separate
theft.” Those are
theо
beer
two
and distinct
ries. Officer Putnam did
have
to seize the beer
type reported stolen, which he saw when he arrested defen
apartment.
Bettles,
dant
App
v.
at the front door his
State
45 Or
216,
P2d
rev
den 289
However, the claim that Putnam
was authorized
through
apartment looking
walk
the еntire
for the other sus
pect
is a different matter. I
that
assume
he had
cause
suspect
other
believe
was in the
that a search warrant to enter the
could
been
have
apart
obtained. Without a
further intrusion into the
permissible,
exigent
ment was not
unless
were
circum
(1979);
Peller,
State
stances.
v.
287 Or
“We do not possibility the mere defendant could make a break if gives he were so inclined rise circumstances when there is no indication that is, fact, so inclined.
C<*
[*]
[*]
[*]
[*]
*7
any
escape
imminent,
“Absent
indications
present
officers
case should have staked out the house
еntering.”
and obtained a warrant before
Because Putnam had no to intrude into necessary defendant’s more than was to seize beer that was evidence of the for theft which defendant was agree arrested, I court, with the trial albeit different 2 Olsen, 133.235(5), provides: the court discussеd ORS which arrest, peace “In order to make an officer enter which the present.” officer has cause to believe be arrested to be applied It held statute be that that would unconstitutional it were when there are no exigent at circumstances. 287 Or reasоns, seized as a result the other evidence suppressed.3 be unlawful search must 3The trial court concluded: finds Officer Putnam’s “The court discovery Mr. subsequent of Mr. Handran and of Mr. Prim and arrest search and subject police authority legitimate and not Prim exercise was warranted However, seizure of the stereo the court finds that the restrictions. constitutional receiver, transportation to the main speakers of those from the bedroom it authorized display seizure in that was not was an unlawful search and room for lawfully
pursuant to an warrant and not circumstances, to a obtained requirement reason for there was no warrant required any exigency immedi- which that there was Officer Putnam believe destroy items, or hide no one with a motive to in that there was of these ate seizure Mr. and Mr. Prim except Prim and both Handran Mr. and Mr. the items Handran custody.” inwere