State v. Chinn

• Decision Date: 27 June 1962
• Citation: 231 Or. 259,373 P.2d 392
• Parties: STATE of Oregon, Respondent, v. Raymond Horace CHINN, Appellant.
• Court: Oregon Supreme Court

Page 392

373 P.2d 392

231 Or. 259

STATE of Oregon, Respondent, v. Raymond Horace CHINN, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 8, 1962.

Decided June 27, 1962.

James M. Hafey, Portland, for appellant. On the brief was Vincent Ierulli, Portland.

Charles R. Harvey, Deputy Dist. Atty., Portland, for respondent. With him on the brief was Charles E. Raymond, Dist. Atty., Portland.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

GOODWIN, Justice.

This is an appeal from a conviction under ORS 163.210(1) (statutory rape). The question is whether certain evidence should have been suppressed upon the timely motion of the defendant.

The challenged evidence was seized under the following circumstances: ¹

Some time during the day of October 2, 1960, a twelve-year-old girl was reported missing. Upon her return to her mother the next day, she said she had been taken to a given address in Portland and there subjected to sexual abuse by a man known only as 'Ray'. The child next described the events to the city police. An officer thereupon obtained a warrant for the arrest of 'John Doe, whose true name is unknown, @Ray.' No search warrant was sought or obtained. The officer then proceeded to the reported address. Finding no one at home, he kept the apartment under surveillance from about 2:00 p. m. until about 6:00 p. m. Shortly after 6:00 p. m., the officer was joined by another officer. (Police practice was to work in pairs after dark.) After about twenty minutes of waiting together, the officers saw two men enter the apartment. The officers thereupon knocked on the door and were admitted. The occupants of the apartment informed the officers that neither of them was 'Ray', but that 'Ray' would be along shortly.

There is some dispute whether the officers were invited to examine the apartment. ² In any event, the officers entered and proceeded to look in the kitchen, bathroom, bedroom, and living room.

During their tour of the apartment, the officers were looking for the defendant. Although they observed various objects, they took no steps to reduce anything to their possession. The girl having reported that she had been given beer, and that 'Ray' had taken her picture, the officers asked their temporary hosts if 'Ray' had a camera. They were told that he had one. A camera was visible on a shelf in 'Ray's' room and a 'six-pack' of empty bottles was on the floor. The officers looked in a closet and observed some bed sheets. When they were satisfied that 'Ray' was indeed not at home, the officers sat down to watch television and wait for his return.

When the man answering to the name of 'Ray' entered the apartment, he was immediately placed under arrest. The officers at that time proceeded to gather up the objects which they had noticed earlier in the evening. These objects included the empty beer bottles, the camera, and the bed linen. Some of the bottles later were found to be covered with the fingerprints of the prosecutrix. The camera contained undeveloped film which, upon being developed, showed the prosecutrix in the defendant's bed. The linen contained substances of interest to the prosecution in such cases.

There had been no ransacking of the premises, no rummaging in drawers or desks. The record does not show whether the closet in which the sheets were found was large enough to contain a person. In any event, the officers, having remarked the location within the defendant's apartment of various items that they considered to be significant, simply gathered them up along with the defendant. The facts, then, are relatively uncomplicated and, as noted, substantially free from dispute.

We need not consider the effect of the invitation, if any, in this case, as the entry was privileged in any event. Both at common law and by statute, officers are entitled to enter where necessary in order to make a lawful arrest for a known felony. ORS 133.320. State v. Duffy et al., 135 Or. 290, 298, 295 P. 953. Restatement, Torts § 206. The presence of the officers in the apartment was lawful. The issue in this case is the legality of the search for and seizure of the challenged evidence.

Oregon Constitution, Art. I, § 9, provides:

'No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but on probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.'

We begin, then, with a constitution that protects the home against invasion by the police unless the police first have procured a search warrant. Magistrates, rather than police officers, are to decide when, and to what extent, the privacy of the home is to be disturbed. See United States v. Lefkowitz, 285 U.S. 452, 454, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775 (1932), construing the parallel language of the federal Constitution.

We have previously observed that evidence illegally obtained by police officers may not be used by the state in a criminal prosecution. State v. Hoover, 219 Or. 288, 295, 347 P.2d 69 (1959); and see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). An unlawful search is not made lawful by the evidence of crime which it brings to light. See, e. g., Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927).

The notable exception to the demand for a search warrant is, of course, the search made as an incident of a lawful arrest. State v. Randolph, 222 Or. 389, 353 P.2d 238 (1960); State v. Hoover, supra; and see Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). Only if there is a lawful arrest, however, does this exception apply.

In general, a mere exploratory search accompanied by an arrest upon some convenient charge is held bad. See Collins v. United States, 289 F.2d 129 (5th Cir.1961). See, also, People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433 (1960); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Lefkowitz, supra; Go-Bart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); 1 Varon, Searches, Seizures & Immunities 201 (1961).

On the other hand, if there is a bona fide arrest for a known offense, and the officers make the search as a true incident of the arrest rather than as an effort to discover some grounds for an arrest, then a fairly intensive search may be reasonable, depending upon all the facts of the case. See United States v. Rabinowitz, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Go-Bart Co. v. United States, supra.

Inasmuch as we believe that certain federal cases under the Fourth Amendment are instructive, at least upon the matter of reasonableness, we have noted, and shall continue to refer to federal cases in outlining some general principles ³ which apply equally under our own constitution:

(1) Purpose of the arrest exception. Search and seizure contemporaneously with an arrest is the only exception to the constitutional requirement of a warrant prior to a search of one's home. The exception is necessary to secure the safety of the police and the custody of the prisoner. See Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). It is also necessary to enable enforcement officers to gather the fruits of the crime, the implements thereof, and possibly to prevent the destruction of evidence thereof. See United States v. Kirschenblatt, 16 F.2d 202, 51 A.L.R. 416 (2d Cir.1926, Hand, J.), and Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B 834 (1914). Properly employed, the exception is limited by the purposes for which it has been developed.

(2) Additional limitations. There are other limitations intended to prevent the exception from becoming the rule. The search must be an incident of the arrest, i. e., close to the arrest both in time and in space, viz., in the physical area searched. The only practical test for reasonableness in relation to time and space is to examine the total factual situation in the light of the constitutional right of privacy. We shall discuss time and space in some detail as we consider the facts of the case at bar.

(3) Intensity of the search. Even if a search is reasonable with reference to time and space, it may be held unreasonable if it is of undue intensity. The nature of the crime for which an arrest is made and the character of the articles seized should have a direct bearing upon the question of reasonableness. ⁴ So, also, should the knowledge the police may have of the criminal record and habits of the suspect, if relevant under the facts of a given case. Thus, a search in connection with an arrest of an ex-convict for a murder may properly exceed the allowable intensity of a search in connection with a traffic offense. Ordinarily, the seized articles must be in plain view, or, if not, then within the immediate control of the prisoner and accessible without unreasonable exploring, rummaging or ransacking. (However, in an exceptional case, even a rather thorough ransacking was upheld in Abel v. United States, supra.)

(4) Opportunity to obtain a search warrant. Running through a number of cases, in a manner which makes it difficult to discern whether the court was talking about the reasonableness of the search or the legality of the seizure, or both, is a principle that a search might be held unreasonable if the officers had had ample opportunity to consult a magistrate and obtain a search warrant but failed to do so. See, e. g., Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), and cases discussed therein. ⁵ (5) Articles subject to seizure. Assuming that a given search was a lawful incident of an arrest, not unreasonable with reference to time or space, and not disproportionately rigorous in the context of the...