State v. Christensen
| Decision Date | 19 November 1935 |
| Parties | STATE v. CHRISTENSEN. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Yamhill County; James W. Crawford, Judge.
Otto Christensen was convicted of unlawfully transporting alcoholic liquor, and he appeals.
Affirmed.
Leland S. Duncan, of McMinnville, for appellant.
Earl A Nott, Dist. Atty., of McMinnville, for the State.
On February 14, 1935, defendant, Otto Christensen, was driving an automobile from Portland towards McMinnville on the West Side Pacific Highway. On the same day, William A Zosel, an officer of the state police, was patrolling said highway and riding in his automobile easterly in the vicinity of Dundee where defendant and the officer met. The officer had a speaking acquaintance with defendant so that they usually greeted each other when they met. On this particular day when they met, defendant made no gesture of recognition and went by without speaking. Defendant had the reputation, which was known to the officer, of being a bootlegger, transporting alcoholic liquor from Portland or vicinity, his source of supply, and disposing of it in McMinnville or vicinity. When the defendant went by without greeting the officer, he concluded that in all probability, he, the defendant, was transporting alcoholic liquor in his car at that time. The officer thereupon turned around and followed him. Defendant was not violating any of the traffic laws at that time. When the defendant had proceeded as far as Lafayette, he drove through the business part of the town at a rate of twenty-seven miles per hour. This, the officer believed, was a violation of the speed law. He drove up behind defendant's car and sounded his siren. Defendant pulled his car off to one side of the road. The officer drove in behind defendant's car, parked his car, and came alongside of defendant's car, a sedan. As the officer came alongside, he saw two cartons in the rear of the car. In one of the cartons he saw glass jugs containing a liquid. The officer asked defendant "what was his hurry." He then asked what he had in the car and the defendant answered, "Nothing." The officer opened the door of the car and upon examination found two cartons, each of which contained six glass gallon jugs of alcoholic liquor containing more than 14 per cent. alcohol by weight. He then informed the defendant he was under arrest and to drive his car with its contents to McMinnville, the officer getting in with him.
On the way to McMinnville, defendant took from his pocket a bottle of moonshine whisky and drank out of it, and surreptitiously slipped it down between the cushions of the car. When they arrived at McMinnville, the officer asked him where the pint flask was and he told him that he left it in the car, where the officer afterwards discovered it.
Defendant waived indictment and on February 26th, the district attorney for Yamhill county filed an information against him in the circuit court for said county, charging him with the crime of unlawfully transporting alcoholic liquor. On the same day the defendant entered a plea of not guilty.
On February 28th, defendant filed a motion, supported by affidavit, requesting the suppression of the evidence found by the officer in defendant's car and seized by him on the ground that said goods were seized and his car searched unlawfully, without authority, and in violation of defendant's constitutional rights relative to search and seizure. Article 1, § 9, Constitution of Oregon.
To this affidavit the officer filed a counter affidavit setting up facts practically as set out in the statement of the case herein. The court refused to allow the motion to suppress the evidence.
On March 15th, the defendant was tried and the gallon jugs and the pint flask containing moonshine whisky were introduced in evidence over the timely objection of defendant. At the close of the state's case, the defendant moved for a directed verdict on the ground that there was no legal evidence of defendant's guilt on account of the seized evidence being wrongfully admitted. The court overruled the motion. The defendant did not take the witness stand nor did he introduce any evidence.
The jury returned a verdict of guilty and sentence was pronounced thereon. Defendant appeals.
The errors complained of are all comprised in the court's ruling in permitting the jugs of whisky and the pint of whisky to be introduced in evidence, and in overruling the motion to suppress said evidence.
The officer exercised special care that no arrest should be made until there was what he believed a clear violation of the law in his presence. The officer had a "hunch" founded on his knowledge of appellant's reputation and past record as a distributor of illicit moonshine whisky and on the conduct of appellant in going by him without recognition that appellant at the time was engaged in unlawfully transporting alcoholic liquor. As an officer sworn to enforce the law, he concluded that it would be advisable to follow appellant.
As appellant came into the town of Lafayette, he was driving at the rate of about twenty-two miles per hour and kept increasing his speed until he was driving at the rate of twenty-seven miles per hour through the business section of the town. The officer concluded that such rate of speed in that district was not "reasonable or prudent," but was a violation of the basic rule relating to motor vehicle traffic as well as the indicated speed. Section 55-2201, Oregon Code Supp. 1935. The officer thereupon sounded his siren and the appellant pulled to one side of the highway and stopped, thus submitting himself to arrest. The jugs and their contents were first observed by the officer when he came to appellant's car and asked him "what was his hurry." Having seen those jugs, and believing that they contained alcoholic liquor, he made further investigation or search and was confirmed in his belief.
This court quoted with approval from Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790: State v. Lee, 120 Or. 643, 253 P. 533, 535.
The officer took appellant, his car, and the alcoholic liquor to McMinnville, and brought him before the circuit judge where the appellant waived indictment and thereafter the district attorney filed in the circuit court the information upon which appellant was tried.
The testimony of the officer is to the effect that he honestly believed that the appellant was violating the motor vehicle law at the time he made the arrest. There is no evidence to the contrary, nor is there any evidence that appellant was not violating the traffic law at the time of the arrest. This court cannot say as a matter of law that defendant was not guilty of violating the motor vehicle law in driving at that rate of speed under the circumstances. As this violation occurred in the presence of the officer, he had a right to make the arrest. A peace officer may arrest a person without a warrant "for a crime committed or attempted in his presence." Oregon Code 1930, § 13-2111. The stopping of appellant was in effect an arrest. The appellant, when he heard the officer's siren, submitted himself to the direction and custody of the officer. "An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer." Oregon Code 1930, § 13-2105.
The question of arrest and search and seizure has been fully determined adversely to the contentions of appellant in State v. McDaniel, on rehearing, 115 Or. 234, 235, 237 P. 373, 376.
The officer was not compelled to continue the arrest for the violation of the traffic law when he lawfully discovered a violation of the Oregon Liquor Control Act (Laws 1933, 2d Sp.Sess., p. 38).
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