State v. Berg

• Decision Date: 27 October 1982
• Docket Number: No. 81,81
• Citation: 652 P.2d 1272,60 Or.App. 142
• Parties: STATE of Oregon, Appellant, v. Joseph Arthur BERG, III, Jay Warren Mutschler, John James Cantrell, Respondents. 1412; CA A22485.
• Court: Oregon Court of Appeals

Page 1272

652 P.2d 1272

60 Or.App. 142

STATE of Oregon, Appellant, v. Joseph Arthur BERG, III, Jay Warren Mutschler, John James Cantrell, Respondents.

No. 81 1412; CA A22485.

Court of Appeals of Oregon.

Argued and Submitted April 23, 1982.

Decided Oct. 27, 1982.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen. and William F. Gary, Sol. Gen., Salem.

Jim Hilborn, Corvallis, argued the cause for respondent Berg. With him on the brief was Corl, Hilborn & Taylor, Corvallis.

Paul H. Kuebrich, Albany, argued the cause and filed the brief for respondent Mutschler.

No appearance for respondent Cantrell.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

Defendants Berg, Mutschler and Cantrell were charged with criminal mischief in the first degree. ORS 164.365. ¹ They moved to suppress evidence seized from Mutschler's automobile during a search authorized by a warrant, primarily on the grounds that the earlier stop and arrest of defendants and the seizure of the automobile were unlawful. The state appeals from an order allowing defendants' motions. We reverse and remand.

Facts

Between midnight and 1:00 a.m. on June 29, 1981, Albany police received four reports of vandalism, all the incidents occurring in the same area of Albany. Although witnesses' accounts varied somewhat, they indicated that those involved were two or three males traveling in a white or yellow Volkswagen Rabbit. One suspect was described as tall and thin with dark hair. They were reported to have torn down street and construction signs and vandalized telephone booths and a fire hydrant. While those incidents were being investigated by Officer Antonson, Officer Leland saw three persons in a yellow Rabbit parked at a nearby corner. Although Leland believed the automobile to be the suspects', he did not approach them but instead noted and reported the automobile's license number.

At approximately 1:00 a.m., the Albany police notified Benton County officers that the car that Leland had seen was registered to Mutschler, a Corvallis resident. About 1:40 a.m., Antonson learned that defendants' automobile, a " '75 Volkswagen Rabbit, light yellow in color" had been found parked on a street in Corvallis. Approximately 15 minutes later, he drove there and met the Benton County deputy sheriff who had discovered the automobile, one or two other police officers and defendants, who, while walking to an all-night restaurant, had been approached and detained by the deputy and the officers. Cantrell fit the description of one of the suspects given by witnesses. ² When asked at trial whether defendants were allowed to leave following their contact with the Benton County officers Berg answered, "absolutely not." He explained that, although they were given no express explanation for their being held at the restaurant, they were told "wait until the big man gets here."

Using his flashlight, Antonson looked through the windows of the automobile and saw, among other things, a gray-green telephone receiver with a silver goose-neck cord, pieces of plywood that were covered with an "orange reflective road-sign type material" of the type used on construction signs, and a pair of vice grips. ³ He then checked with his dispatcher "to see if we had any further damage to any other phones" and was informed that a telephone booth at "Queen and Lincoln" in Albany had been vandalized and that the "hand set and the cord itself were missing." He asked Mutschler for permission to search the automobile. Mutschler refused. Antonson then cited all three defendants for "Theft II," took custody of the automobile and had it towed to the "Albany City Shops," where it was later searched pursuant to a warrant. He did not take defendants into custody.

Following indictment for criminal mischief in the first degree, ORS 164.365, each defendant filed a pretrial motion to suppress the evidence found in the automobile. Defendants' primary argument was, and is, that Antonson arrested and cited them and seized the automobile without a warrant and outside the territorial jurisdiction of his employment ⁴ and that the evidence eventually taken from the car is tainted and should be suppressed. ⁵ The state contended that Berg and Cantrell lacked standing to challenge the seizure and search of the car and that the seizure and search were lawful as to Mutschler. The trial court allowed defendants' motions. Of the three orders eventually entered by the court, only the one granting Berg's motion recites specific findings:

"1) That the Officer Antonson of the Albany Police Department was without his jurisdictional boundaries at the time he made contact with the Defendant Berg in the City of Corvallis;

"2) That Officer Antonson's subsequent stop, search and arrest of the Defendant Berg was unlawful. That his subsequent gathering of evidence pursuant to the stop, search and arrest was unlawful."

Standing of Defendants Berg and Cantrell

Whether or not Berg and Cantrell have standing to challenge the search, it is clear that Mutschler, who was the registered owner of the automobile and was present at the time of the seizure, does have such standing. See State v. Miller, 51 Or.App. 237, 239 n. 1, 624 P.2d 1102 rev. den. 291 Or. 9 (1981). Because we hold that the seizure of the evidence was lawful as to Mutschler, under these circumstances, it was necessarily lawful as to Berg and Cantrell. Thus, we need not address the standing question.

The Arrest and Citation of Defendants and Seizure of the Automobile

At the time and place of defendants' arrest and citation, Antonson lacked the statutory authority to cite defendants or arrest them without a warrant in Benton County for crimes alleged to have occurred in Albany; therefore, the arrests and citations were unlawful. State v. Huffman, 49 Or.App. 823, 827-28, 621 P.2d 78 (1980) (construing ORS 133.235(2)). ⁶ However, the validity of the warrantless seizure of the automobile does not depend on whether the seizure was incident to a lawful arrest.

When he left Albany, Antonson (1) knew the color, make, model and license number of the automobile sought, (2) had a description of one of the three male occupants and (3) knew that street signs of a particular type, two telephone booths and a fire hydrant had been vandalized. Benton County officers had "stopped" and detained defendants and were waiting with them beside the car when Antonson reached Corvallis. ORS 131.605(5) and 131.615. ⁷ Defendants do not contend that their detention by the Benton County officers was unlawful. Antonson's examination of the automobile's interior and discovery of its contents took place before he arrested and cited defendants. In addition, because he was able to see the contents without any intrusion into the car, his examination was not a search, notwithstanding his use of a flashlight. State v. Miller, 45 Or.App. 407, 410, 608 P.2d 595, rev. den. 289 Or. 275 (1980). Thus, before he arrested and cited defendants, Antonson had information that gave him probable cause to believe the car contained evidence of the crimes he had investigated that evening in Albany. Defendants do not argue otherwise. Furthermore, the information providing probable cause for the seizure did not result from "exploitation" of the unlawful arrests; i.e., the "knowledge of [the] evidence can be attributed to a source independent of the unlawful conduct." State v. Hacker, 51 Or.App. 743, 749-50, 627 P.2d 11 (1981).

The car was seized without a warrant and subsequently searched pursuant to a warrant. An automobile may be seized and searched without a warrant if there is probable cause to believe that it contains evidence of a crime and if there are exigent circumstances requiring prompt action. State v. Quinn, 290 Or. 383, 391, 623 P.2d 630 (1981). Antonson clearly had probable cause. Although the mobility of an automobile, without more, may not be sufficient to establish exigent circumstances, State v. Fondren, 285 Or. 361, 591 P.2d 1374, cert. den. 444 U.S. 834, 100 S.Ct. 66, 62 L.Ed.2d 44 (1979), there are other factors in this case demonstrating the existence of such circumstances. First, defendants were arrested but were not taken into custody; after they had been cited, they were free to leave and could have left with the automobile and its contents but for the seizure. Second, defendants were aware that Antonson had seen some evidence contained in the car and under the circumstances it would have been reasonable to conclude that had they been...