Defendant appeals from two convictions for robbery in the first degree. He assigns as error the trial court’s failure to grant his motion to suppress eyewitness identification evidence. We affirm.
During the evening of April 6, 1981, defendant and another man robbed a southeast Portland drug store of drugs and money. The owner of the pharmacy and a clerk were working at the time. They contacted the police and furnished descriptions of both robbers. On the basis of those descriptions sent out by the police dispatcher, an officer went to an address where he had been told that two persons who might be selling drugs from pharmacy holdups lived. A Chevrolet van was parked across the street. He stopped the van when it started away, even though he did not see who had entered it. During the stop the officer saw a pharmaceutical-type bottle and a gun in the van. Those items and other evidence taken from the van were excluded from evidence at defendant’s trial, because we had determined that the stop was unlawful under ORS 131.615 on defendant’s appeal after his first trial.
State v. Scott,
The officer detained the van and its two occupants, because he believed that he had apprehended either the drugstore robbery suspects or someone he had earlier ticketed for driving while suspended. The two robbery victims were brought to the scene of the stop. They were told repeatedly that they were under no pressure to make an identification. They were transported in separate cars. Each victim made an independent identification of the suspects, at which point the police arrested defendant.
At his second trial, the showup and in-court identifications of defendant by the robbery victims were admitted, as was a mug shot taken of him following his arrest. Defendant’s appearance in the mug shot differed markedly from his appearance at trial.
Defendant argues that the mug shot, the showup identifications and the in-court identifications should have been suppressed, because they were the direct product of an illegal stop. He also argues that the showup identifications were unduly suggestive and that they tainted the in-court
*389
identifications. We disagree.
State v. Ponce,
Defendant raises two arguments that are not immediately disposed of by
Ponce.
He directs our attention to Article 1, section 9, of the Oregon Constitution and urges us to suppress the challenged evidence under that provision. He suggests no reason to interpret Article I, section 9, any differently than the Fourth Amendment with respect to exclusion of the evidence challenged in this case.
See U.S. v. Crews,
Defendant’s final argument is that the showup identifications should have been suppressed, because they were suppressed in defendant’s first trial and
res judicata
requires that they be suppressed in the present trial. The initial problem with this argument is that defendant identifies the wrong rule. Defendant’s first and second trials are different parts of the same action. Thus, he must intend to refer to the law of the case rule, which involves the effect of a previous ruling within one action on a similar issue of law raised subsequently within the
same
action. The rules of
res judicata
apply to previous rulings in an action on a similar determination in a
subsequent
action.
Koch v. So. Pac. Transp. Co.,
274
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Or 499, 512,
The doctrine of
res judicata
is applicable to criminal cases.
State v. Dewey,
The trial judge in defendant’s first trial excluded the showup identifications. At that time, there was no controlling law clearly governing the admissibility of showup identification evidence obtained subsequent to an illegal police stop. During the pendency of defendant’s appeal from his first trial,
State v. Ponce, supra,
was decided. Although a change of law or a change of facts may not necessarily affect the applicability of
res judicata,
such a change can preclude the applicability of the law of the case.
Morley v. Morley, supra,
Affirmed.
Notes
Defendant contends that
Ponce
is distinguishable, because there was an intervening arrest based on probable cause between the illegal stop and the identifications. Although defendant was not arrested in the present case before the showup identifications were made, there was probable cause for an arrest: defendant’s appearance matched the description of a robbery suspect. The fact that he was not expressly arrested before the identification is incidental. His detention with the existence of probable cause was the functional equivalent of an arrest. As in
Ponce,
“[t]he police did not obtain defendant’s description from the ‘primary illegality’ [of the stop] — they already had it — and the victim[s] had a visual perception of defendant, which was not related to the stop.”
State v. Ponce, supra,
We also conclude under the Ponce analysis that the illegal police conduct, the stop in this case, was not sufficiently flagrant to warrant suppression of any of the identification evidence.