State v. Cloman

• Decision Date: 18 June 1969
• Citation: 254 Or. 1,456 P.2d 67
• Parties: STATE of Oregon, Respondent, v. Leonard CLOMAN, Appellant.
• Court: Oregon Supreme Court

Page 67

456 P.2d 67

254 Or. 1

STATE of Oregon, Respondent, v. Leonard CLOMAN, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 7, 1969.

Decided June 18, 1969.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed a brief for appellant.

Jacob B. Tanzer, Asst. Chief Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

DENECKE, Justice.

The sole issue is whether evidence introduced by the state was obtained by an illegal search and seizure.

Officers Daggett and Lindholm were motor patrolling in northeast Portland in the early morning. The police radio broadcasted the following information: At 4:00 a.m. that morning a truck had been observed backed up to a garage at a residence on NE Going Street, Portland; it was reported that tires were being unloaded into the garage.

Other officers investigated and observed a Cadillac four-door, bearing a certain license number, described as light blue or light colored, parked next to a truck. Neither the Cadillac nor the truck had lights on and both vehicles drove away when a police vehicle approached. An officer stopped the Cadillac and the three occupants were identified as the defendant Cloman and two others, all known to the police as copper wire thieves. The Cadillac and its occupants were permitted to drive away. The officer who stopped the Cadillac than investigated the garage and found a large part of it was filled with rolls of copper wire. (Some of the rolls had paper wrapping and could be mistaken for new tires with paper wrapping, which probably accounted for the initial report that tires were being unloaded.) At least one roll was tagged 'Hembree Electric Company.' A photograph of the wire as it was piled in the garage at the time creates the strong inference that this wire did not come into this garage in a legitimate commercial transaction. These observations of the investigating officers were radioed to officers Daggett and Lindholm.

Shortly before 5:00 a.m. Officers Daggett and Lindholm saw a light-colored Cadillac about a mile from the Going Street address. It is uncertain whether the Cadillac stopped voluntarily or in response to some command of the officers. In any event, it stopped, Cloman got out and walked back toward the officers' car. Officer Daggett recognized Cloman and knew that he had a reputation as a copper wire thief. Officer Lindholm testified he believed the two men who had been reported with Cloman left the car and ran away during a period when the Cadillac had for a few moments vanished from the officers' observation.

The officers testified that the defendant was wearing overalls and was perspiring. According to the officers, the defendant did not answer their inquiry about what he was doing in the area. He was arrested on an 'after hours' charge and the trunk of the car was searched. Copper wire which was later found to be stolen was found in the trunk.

The car which the defendant was driving was a two-door, white 1959 Cadillac with a different license number than that reported on the car initially stopped on Going Street.

The defendant filed a motion to suppress the use of the wire found in the trunk as evidence. After an evidentiary hearing the trial court denied the motion. No findings of fact were made; however, the trial court stated that it was not basing its ruling upon any right of search which might stem from the 'after hours' arrest.

We agree with the trial court that the 'after hours' arrest cannot justify the search and seizure. ¹ We agree also with the trial court that the search and seizure were proper.

The critical events must be examined in sequence to determine whether they provide a constitutional basis for the search.

The first critical event attacked by the defendant is Officers Daggett and Lindholm stopping Cloman. The contention of the defense is that the stopping was unlawful because the officers had no probable cause to believe that a crime had been committed by Cloman and, therefore, no probable cause to arrest Cloman.

We hold that the initial stopping of the car to determine the identity of the occupant and the vehicle was not an arrest and, therefore, probable cause to arrest was not a prerequisite to the stopping. We further hold that the police can stop a car to determine the identity of the vehicle and its occupants if they have a reasonable suspicion that the car or its occupants have a connection with criminal activity. ² This 'reasonable suspicion' we deem to be of less quantum than probable cause to arrest. This stopping of a car upon reasonable suspicion does not provide a basis for an officer searching the trunk.

The distinction between the right to momentarily detain for investigation and the right to arrest upon probable cause was recognized in Rios v. United States, 364 U.S. 253, 262, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688 (1960). In that case the police had reasonable suspicion to stop a taxicab. Exactly how the cab was stopped and what occurred thereafter was in dispute; however, it is certain that narcotics were found in the course of these events. The court stated that no probable cause for arrest existed when the police stopped the cab; however, 'the Government argues that the policemen approached the standing taxi only for the purpose of routine interrogation, and that they had no intent to detain the petitioner beyond the momentary requirements of such a mission. If the petitioner thereafter voluntarily revealed the package of narcotics to the officers' view, a lawful arrest could then have been supported by their reasonable cause to believe that a felony was being committed in their presence.'

The Rios case is relied upon in Wilson v. Porter, 361 F.2d 412 (9th Cir.1966). The police saw a suspicious car and they 'turned on their red light to have appellee pull over. * * * One of the officers walked to the right hand side of the car requested the passenger to get out, and asked for identification. As the passenger opened the car, the officer, standing outside the car, shone his flashlight into the car and saw what appeared to be a gun barrel protruding from under the seat.' 361 F.2d at 414. The court reasoned:

'We conclude that no right of the appellee was violated when the officers stopped the car and that the subsequent seizure of the evidence upon which he was convicted was justified as pursuant to a lawful arrest. While it is clear that at the time appellee's car was pulled over probable cause for an arrest did not exist, it is also clear that not every time an officer sounds his siren or flashes a light to flag down a vehicle has an arrest been made. The initial act of stopping appellee's car was not an arrest. Granting that the constitutional prohibition against unreasonable searches and seizures makes no distinction between informal detention without cause and formal arrest without cause, there is a difference between that 'cause' which will justify informal detention short of arrest and the probable cause standard required to justify that kind of custody traditionally denominated an arrest. Our concern here is what degree of cause will justify cursory, informal detention in circumstances which would not justify an arrest, and whether the officers met that standard in the particular circumstances of this case.

'We take it as settled that there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for purposes of limited inquiry in the course of routine police investigations. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Busby v. United States, 296 F.2d 328 (9th Cir.1961). A line between reasonable detention for routine investigation and detention which could be characterized as capricious and arbitrary cannot neatly be drawn. But due regard for the practical necessities of effective law enforcement requires that the validity of brief, informal detention be recognized whenever it appears from the totality of the circumstances that the detaining officers could have had reasonable grounds for their action. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.' 361 F.2d at 414--415.

In State v. Fish, 280 Minn. 163, 159 N.W.2d 786 (1968), the officers were suspicious of a car they observed. They stopped it and subsequently discovered stolen property in the car. The court approved the stopping of the car and commented:

'It is ordinarily true that an arrest is made by the actual restraint of the person of the defendant or by his submission to the custody of the officer. Minn.St. 629.32. It is also true that subject to certain exceptions enumerated in § 629.34 an arrest cannot be made without a warrant. Since we must appraise the propriety of the search in light of the factual context of the record before us, it is important to observe that we have by our decisions recognized that persons found under suspicious circumstances are not clothed with a right of privacy which prevents law-enforcement officers from inquiring as to their identity and actions. The essential needs of public safety permit police officers to use their faculties of observation and to act thereon within proper limits. It is not only the right but the duty of police officers to investigate suspicious behavior, both to prevent crime and to apprehend offenders. * * * (Citations). Of course, the right of police officers to stop a suspicious person does not extend to a right of search in the absence of probable cause.' 280 Minn. at 166--167, 159 N.W.2d at 789.

Followed in State v. Valstad, Minn., 165 N.W.2d 19 (1969).

In People v. King, 270 Cal.App.2d 905, 76 Cal.Rptr. 145 (1969), the court stated:

'* * * Given the...