*1 Arguеd 30, 1966 affirmed December December v. OF OREGON GERALD
STATE CLAYTON SANFORD
Roger Rook, N. Attorney, Oregon City, District him With on respondent. the cause argued Attorney Y. Thornton, General, brief was Robert Salem. Justice,
Before Chief Perry, McAllister, *3 and Denecke O’Connell, Goodwin, Holman, Sloan, Justices.
HOLMAN, J. a has from of
The defendant appealed judgment a crime in house dwelling of burglary conviction a without a The resi- jury. after trial court that of of operator dence burglarized Course.” 0 Scott Golf “Top erred his
Defendant contends the court in denying The was taken evidence. evidence suppress motion a under search war- apartment from defendant’s information however, Dеfendant contends, rant. of the evidence in apart- the presence of a as the result previous illegal ment was acquired without a warrant of the apartment search subsequent this invalidates the search and seizurе under the warrant. any suppress specify par-
The motion to did not suppressed. ticular evidence which defendant desired “* * * suppress It stated moves court to illegal entry evidence obtained as a result of the * * seаrch of home, defendant’s The suppress City on the motion disclosed that two apartment Portland detectives were sent to the house pursuant a which defendant lived call police apartment manager. managеr house police money a told sum of had been stolen from him displaying large and that defendant had been seen a money. Together and unusual amount with the manager, apart- the detectives went to the defendant’s resрonse. ment and knocked on the door. There was no money wrapper a The detectives found which had “Top lying written iton Golf Scott Course” on the hallway adjacent floor to the door to defendant’s They apartment. looked in a then window of the apartment passageway from common and saw an- money wrapper apartment. other on the floor They legend upon appeared read the could not it but it hallway. They similar to the one found in the then again again went back and knocked at the door and response. manager received then let them into apartment manager’s key. pass defendant’s with his apartment The officers searched the for the stated purpose looking They for defendant. looked at the money wrapper apart- which was on the floor of the markings and found that bore the ment it same as the *4 They plastic bag found in the hаll. a one observed they open, appeared in a closet which not but did which place unusual for the it somewhat where was found. manager’s They apartment then went to the and used headquarters police and were telephone call the teletype received the had been a reminded that “Top Department the Police Portland burglary. a warrant officers then secured Scott” again. apartment The affidavit for thе and searched * * on the door I knocked the warrant recited apartment I speak ob- said residents of ap- my person directly the floor and on below served green proximately apartment a door foоt from the one money bearing ‘Top wrapper the name 0 Scott Golf the aforementioned I then observed inside Course.’ money wrapper apartment to the one ob- identical immediately apartment in front оf the door.” served to us and it is not known The affidavit is not available language appeared pre- we are therein, what other but suming had been re- that included that information it police the that Portland effect the ceived the operator “Top 0 Scott Golf home Course” burglarized. had been preliminary upon at
The evidence suppress any failed disclose articles motion to that knowledge warrant of which were taken under thе entry. gained by previous illegal In evi- fact, what articles were dence even failed to disclose taken following questions the warrant. However, under searching one of the detectives concern- were asked original entry: ing what was discovered on Ludwig (the right. apartment Did Mr. “Q All key? you manager) let with his house “A Yes. you things At this time did observe the
“Q you picked up on search warrant? later money wrap- I the coin or the “A observed No, already per I hаd from the seen outside of the through apartment the window. We weren’t search- ing apartment. looking We were for the defend- *5 402 only eonple places
ant here. There was or three he could have been that we couldn’t have seen through the in the under window, closet, the in bed, the kitchen.”
The answer of the officer was incorrect because at plastic bag trial it the was shown that the was taken bag under warrant. The the was introduced evi- part was dence of as its were contents which fruits burglary. again of the Defendant at the trial moved general quash the court in terms to the evidence. How- signifi- ever, he did not call the to court’s attention the discrepancy cance of the betweеn the officer’s testi- mony preliminary hearing at the and that which was given at trial. having
The evidence
been taken under a search
showing
illegality
the burden
warrant,
of
the
of its
upon
seizure was
the defendant. See State
Elkins,
v.
403 securing unnecessary to the was one on outside upon appeared look- be It identical warrant. apartment through ing defendant’s window together suffi- information, with the other this, cient. prior suppress be made
A
must
motion
unaware
seizure.
is
trial, unless the defendant
Laundy,
206 P
204 P
443,
958,
103 Or
493-494,
v.
State
(1922);
al,
et
of determining purpose protracted periods for the of ad missibility allowed a If defendants are of evidence. opportunity, through at trial, evidence adduced second illegally property it will lead seized, to show hearings on the matter and there will be a to two same saving of trial time. If instead of a defendant waste testimony at incorrect the was misled the officer’s preliminary hearing the truth was not discovered and exception of an be made. trial, until the time should present at time of the However, defendant was the necessarily the must have known of seizure search bag preliminary contents. At hear and its the plastiс bag ing seen he had the the officer testified original illegal during defend Therefore, the search. hearing preliminary ant the time of knew at the testimony. It was of the officer’s incorrectness testimony. duty He to the incorrect defendant’s rebut any produced kind. In no evidence at change significance in the testi addition, mony judge’s was never to the trial attention called quash at trial. The was renewed when the motion expected comprehеnd judge the im cannot be trial testimony plications unless in the conflict involved specifically the matter is called to his attention. In judge some instances the trial will not even be presided judge preliminary hearing. same who at the admitting No error was committed in the evidence seized under the warrant.
Defendant next contends that his confession was illegal coerced seizure. He he would not claims police if have confessed had not he knоwn the had evidence seized under the warrant. This is novel idea of no merit. permitted
He also contends he was not to consult attorney prior making with his the confession and making he was coerced into it. After his arrest being questiоned right and before he was told his attorney to have an with assistance of the attorney police officers called his who came day station see him. next he was asked if he cared to make a statement and sаid he wished to talk attorney again. attorney to his He called his but was contacting not successful in him because the attor- ney was out of his office. He claims he was afforded opportunity taldng to call. The further officer *7 day statement testified that he returned on the third if and asked the defendant he had contacted his attor- ney yet, and the defendant told him that he had not necessary. think but that he didn’t it was He then gave a statement. Defendant’s evidence extremely by coercion was weak and was rebutted fully state. The court found he was advised of his right to to counsel and remain and that silent, voluntarily given. statement was question The of whether or an not accused adequаtely rights of his has been advised and has waived them is one of fact for the nevertheless court.
405
Keller,
v.
State
Defendant next contends
was
An
a
a
information
preliminary
hearing.
his
right
filed
defendant
and a
felony
against
preliminary
was
and
How
requested
April 12,1965.
was
set
hearing
an
returned
him on
indictment was
ever,
against
no
was held.
hearing
hearing
8
April
prior
dis
indictment was defective
original
April
and a new indictment
returned
15. The
missed
without merit. The
purpose
of error
is
assignment
determine whether
suffi
is to
hearing
preliminary
exists
charge
prior
сient cause to answer
indict a
it be
may
A grand jury
person
indictment.
or
whether
not
that per
to be
of crime
guilty
lieves
If
does,
preliminary
held to answer.
it
son has been
Gladden,
Anderson v.
234 Or
necessary.
is
Anderson ex rel Poe v.
(1963);
P2d 986
627, 383
614,
Gladden,
сert
(1955);
Sloan,