Defendant was convicted of burglarizing the Burk-land residence in Salem, Oregon. Two fur stoles and a bowling bag were stolen from the locked residence. The ease was tried by the court without a jury. Defendant contends that her confession was the product of an illegal arrest and as such was erroneously admitted into evidence.
*430 The arrest was made without warrant. Defendant, age 19, occupied a room at the Holiday Inn Motel in Salem, Oregon. Sometime between 8:15 a.m., and 9:00 a.m., March 30, 1966, two Salem police officers and the motel manager entered defendant’s room. There is a dispute as to whether the officers knocked prior to entering the room. However, it is clear that permission was not obtained prior to entry. The officers did not announce their office or purpose before entering defendant’s motel room. The defendant insisted that the officers and manager leave the room which request was refused. She was in bed and was only partially clad when the entry was made into the room by the three men. The evidence does not disclose why the officers entered the room other than a statement attributed to the motel manager that they were “there on an investigation of a stolen credit card.” Two young men and another young woman were in the motel room. Weapons were found there. The defendant was arrested shortly before 9:00 a.m. In the process of arresting the defendant and her three companions, a substantial scuffle ensued. Three additional policemen were called, making a total of five officers in all. Defendant’s male friend was superficially injured in the scuffle. Defendant sought to aid her male friend. Defendant was thrown to the ground outside the motel, handcuffed, and taken to the police station in a police vehicle. The officers did not learn of the burglary in question until 10:00 a.m., that day, one hour after the arrest. Immediately after the arrest Officer Olson testified that the defendant was upset and crying off and on. In response to a question as to whether defendant was hysterical, he stated, “Well, I don’t know exactly, hysterical, what the definition of hysterical — I would describe her as being wild.”
*431 About 10:30 a.m., the same day, defendant admitted on interrogation at the police station by Officer Olson that she was present at the burglary. He testified, “She said ‘yes.’ * * * After advising her of her rights, finding out her true name, age, I advised her that Ron Vernon had told me that her and Mark had gone to the Burldand residence and burglarized the same and taken some furs and asked her if she was — what her part in this was, and she said, ‘Well, I was there’ * * Officer Olson also testified that at 1:50 p.m., the same day in an interview with the defendant in the Marion County jail, “She stated that Mark, herself and Ron went to this house and placed two fur stoles in a bowling bag and after leaving, went back to a grocery store on Commercial Street and from there the three of them took a taxicab back to a restaurant near the Holiday Inn.”
The trial court found that the defendant had been advised of her rights prior to the making of defendant’s statements and that the statements were given voluntarily. Defendant had not been before a magistrate, nor did she have counsel at the time of making the statements. The evidence is conflicting on whether she requested counsel prior to making the above statements. Defendant moved in advance of trial to suppress the confession and objected to its admission during trial. The motion was denied and the objection was overruled. Defendant’s contention, among others, is that her arrest was illegal and that her confession was a product of this illegal arrest.
If evidence is obtained as the fruit of illegal police conduct, it may not be used in state courts.
State v. Krogness,
In this case there was no evidence showing that the officers had probable cause, prior to arrest, to believe the defendant guilty of burglarizing the Burk-land home, the crime with which she was charged. The arrest took place at approximately 9:00 a.m., and one of the arresting officers testified that he first learned
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of the fact of the Burkland burglary by telephone about 10:00 a.m., and had a report of it at the police station at noon. The evidence did not indicate that the other officer knew of the burglary before the arrest. If the officers entered defendant’s room for the purpose of arresting her, and had probable cause for believing that she had committed some felony, even though it was a crime other than the one she ultimately confessed to, the defendant’s arrest would be legal. On the question of admissibility of evidence it would be immaterial that the crime ultimately charged to the defendant is different from that for which she was arrested. The issue is the validity of the arrest. Cf.
State v. Dempster,
It follows then that the absence of proof of the existence of probable cause renders the arrest in the instant case invalid.
It must next be determined whether the confession in the instant case is the product of the invalid arrest. In other cases the causal connection between an illegal arrest and the obtaining of the evidence in question has been held to be broken by: an intervening legal arrest,
State v. Dempster,
supra,
State v. Allen,
It was error to receive the defendant’s statement.
In fairness to the trial court it must be stated that the issue discussed here, though raised, was obscured by the manner in which the case was tried by counsel for both the state and the defendant.
This case must be remanded to the trial court for retrial, and as an incident thereto, for a determination of the issue of the legality of the arrest. If further evidence is adduced on the issue of the causal connection between the arrest and confession the trial judge shall determine whether the state has shown the confession to be free from the taint of the illegal arrest, if any. It should be noted that the lawfulness of an arrest, even when made with probable cause, can be vitiated by the manner of entry. Not only must the method of entry conform to state statute, but it is also subject to federal constitutional standards of reasonableness,
Ker v. California,
supra.
②
An otherwise
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unlawful entry is not rendered lawful by reason of discoveries made as a result thereof. See
State v. Chinn,
Reversed and remanded.
Notes
ORS 133.310 (2): “When the person arrested has committed a felony, although not in his presence;”
See State v. Roderick,
ORS 133.310 (3): “When a felony has in fact been committed or a major traffic offense, as defined in subsection (5) of ORS 484.010, has been committed, and he has reasonable cause for believing the person arrested to have committed it * * *.”
ORS 133.320 provides: “To make an arrest, as provided in ORS 133.310 [without a warrant], the officer may break open any door or window, as provided in ORS 133.290 and 133.3-00, if, after notice of his office and purpose, he is refused admittance.”
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In construing a similar statute the Federal Court held in Keiningham v. United States, 287 F2d 126 (DC Cir 1960), that any unauthorized entry, including entry through an unlocked door, is the legal equivalent of a breaking and requires that the officer effecting the arrest without a warrant comply with the statute. This case is cited with apparent approval in Ker v. California, supra,