790 P.2d 1205 | Or. Ct. App. | 1990
Defendant appeals from a conviction for burglary in the first degree. ORS 164.225. He assigns as error the denial of his motion to suppress.
Police received a telephone call from a caller who described two suspicious men walking in the area of Northeast 29th and Wygant in Portland, possibly carrying a television in a plastic bag. Officers were dispatched to investigate. They observed defendant, who matched the description of one of the men and was carrying something in a plastic bag.
In order to search the bag, the officers needed probable cause. State v. Verdine, 290 Or 553, 556, 624 P2d 580 (1981). We conclude that there were insufficient circumstances to constitute probable cause to search the bag. The citizen who phoned the police called “suspicious” what the
The state also argues that defendant consented to the search. The trial court made no findings regarding consent, and the record contains no evidence that would suggest that defendant consented.
Reversed and remanded for a new trial.
In the light of our disposition of this case, we do not address defendant’s other assignment of error.
The court found:
“This citizen report of this suspicious individual — suspicious conduct in carrying a television set in a bag; the police respond, see an individual matching the description or matching one of the descriptions and carrying an item in a garbage bag. Clearly — its print shows through the side of the garbage bag — clearly an item of electronic components, tape deck, tuner, VCR, something like that — you can tell not only by the shape by the weight of that as its pressed against the bag and the apparent effort needed to hold it up.”
The record reveals that the officers “asked [defendant] if it would be okay if he sat in the back of the patrol car for a while while we checked things out, and he said, yes.” Defendant’s response does not rise to the level of consent to search the bag.