State v. Cook

• Decision Date: 09 February 1966
• Parties: STATE of Oregon, Respondent, v. Civil Michael COOK, Appellant.
• Court: Oregon Supreme Court

Page 78

411 P.2d 78

242 Or. 509

STATE of Oregon, Respondent, v. Civil Michael COOK, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 29, 1965.

Decided Feb. 9, 1966.

Orval N. Thompson and Harrison M. Weatherford, Albany, argued the cause for appellant. On the briefs were Weatherford, Thompson & Horton, Albany.

Frank D. Knight, Dist. Atty., Corvallis, argued the cause for respondent. With him on the brief was Edward R. Hall, Deputy Dist. Atty., Corvallis.

Before McALLISTER, C. J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and SCHWAB, JJ.

DENECKE, Justice.

The defendant was indicted for forcible rape. He was found guilty of assault with intent to commit rape. He appeals.

An acquaintance of the defendant picked up the prosecuting witness, a girl 27 years old, in Portland. The girl, the acquaintance, the defendant, and another man, O'Rourke, spent the evening drinking. They then went to the defendant's family's farm in Benton county. The family was out of the state. The rape by the defendant and the other men is alleged to have occurred at the farm. A caretaker, Warman, witnessed the activity in the farmhouse and the next morning reported it. He did not know the name of the girl. The defendant was the only man Warman knew.

Three days after the alleged rape the defendant was questioned at his place of employment in Portland by law enforcement officials. He told them he did not know the girl's name, but he named O'Rourke as having been along. O'Rourke was then questioned, and from the information he gave them the officials were eventually able to learn the identity of the girl.

I

At trial the defendant moved to suppress the testimony of the girl upon the ground that her whereabouts became known to the state by the interrogation of the defendant and O'Rourke and this interrogation was contrary to the Constitution of the United States because the persons questioned had not been advised of their right to remain silent and of their right to counsel. The defendant argues that the girl's testimony is 'fruit of the poisonous tree' because it became available by exploitation of unconstitutional interrogation. In this regard defendant relies upon Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

It is not necessary for us to decide here whether the 'fruit-of-the-poisonous-tree' principle applies to evidence obtained by exploitation of an interrogation encompassed by State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1965), and in which the advice required was not given. We find State v. Neely, supra, inapplicable because the defendant was not the focal suspect of a crime; he 'was not under arrest or any other form of custody at the time' the officers obtained information from the defendant which eventually led to their learning the identity of the girl. State v. Evans, Or., 407 P.2d 621, 623 (1965).

The facts are that three officers came to the defendant's place of employment about 11:00 a. m. They had no warrant of arrest. They asked management if they could interview the defendants. A supervisor brought the defendant to the plant's conference room. The officers told the defendant that they wanted to talk to him about a girl who was with him last Sunday. The defendant said that he would be glad to talk as he did not have anything to hide. They asked her name and defendant said that he did not know it. They asked if he had raped her and he said no. He admitted that he had been with a girl in Benton county. The defendant said the girl and threatened to commit suicide several times that day and her dress was torn when she tried to jump out the window, and the defendant had grabbed her to keep her from jumping. The defendant said that O'Rourke, who also worked there, had been with him. The officers asked management if they could talk to O'Rourke and they asked the defendant to stay in the conference room until O'Rourke arrived. When O'Rourke arrived, the defendant went back to work and stayed there until 5:00 p. m., when other officers came and asked him to come with them down to the police station, where they put time in confinement. The defendant was in the plant conference room from 15 to 20 minutes.

This was not an arrest. 'Arrest is the taking of a person into custody so that he may be held to answer for a crime.' ORS 133.210. We also hold that it was not 'custody.' As we said in State v. Evans, supra (407 P.2d at 624), 'It is probably not possible in a single case to lay down an absolute test as to what is and what is not custody, for it may well be a functional test.' Consistent with the objective sought in State v. Neely, supra, custody should be defined as at least requiring some sort of detention effected by some physical or psychological means. It is the coercion inherent in that detention that is a reason for the Neely requirement. In this instance there was no evidence of detention prior to the defendant's informing the officers that O'Rourke was with him. It may be possible to construe defendant's testimony that the officers told him to stay in the conference room until O'Rourke arrived as detention. However, this occurred after the questioning had been completed.

In Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the majority specifically said that it was not intending to hamper the police from 'gathering information from witnesses and by other 'proper investigative efforts." (378 U.S. at 492, 184 S.Ct. at 1766) The officers in this case were using such methods to attempt to locate the girl and determine if any crime had been committed.

II

The court received into evidence, over defendant's objection, certain items which were taken by an officer from the farmhouse. The items were parts of the girl's clothing, a vacuum cleaner, beer bottles, and a billfold belonging to one of the other men. No search warrant was obtained to enter the farmhouse. The officers accompanied Warman to the house and he unlocked it and let them in. The defendant contends the evidence is inadmissible because it was secured by an illegal search and seizure.

Assuming, without deciding, that the defendant has standing to object to the introduction of this evidence, we hold the evidence was not the product of an illegal search and seizure.

Warman was authorized by the owners of the farmhouse to live there for the 10 or 15 days they were going to be gone. Warman had a key; he was to care for the property; he had unqualified access.

Warman's voluntary admission of the officers into the farmhouse made the search reasonable.

Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, reh. den. 377 U.S. 940, 84 S.Ct. 1330, 12 L.Ed.2d 303 (1964), is not to the contrary. There, it was held that a hotel night clerk's consenting to the police entering a guest's room did not make the search valid. A hotel guest is entitled to treat his room as his private domain subject only to the hotel personnel entering the room, at times convenient for the guest, in the performance of their duties. In this case, while the owners were gone, Warman was in complete control of the premises.

In State v. Broadhurst, 184 Or. 178, 251, 196 P.2d 407, cert. den, 337 U.S. 906, 69 S.Ct. 1046, 93 L.Ed. 1718 (1949), we held a tenant could consent to the search of the house in which the tenants were living.

The defendant also contends that the evidence was inadmissible because it was only evidence and was not property used, or intended to be used, as a means of committing the crime. State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962), held that a legal search was restricted by statute to property used or intended to be used in the commission of a felony. ORS 141.010. This statute was amended by Oregon Laws 1963, ch. 375, § 1, p. 558, to include property 'which would constitute evidence of, the crime.' The statute is expressly applicable only to searches under a search warrant, but State, v. Chinn, supra (231 Or. at 275, 373 P.2d 392), held the same rule governing searches under a warrant should govern searches without a warrant. The defendant contends that the statute as amended is contrary to the Fourteenth Amendment because it now includes property 'which would constitute evidence of, the crime.'

The majority in State v. Chinn, supra (231 Or. at 276, n. 10, 373 P.2d 259), expressly did not pass upon the point now raised by the defendant. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), and United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775 (1932), are the principal supports for defendant's contention. See 43 Or.L.Rev. 333 (1964). We also need not pass upon the issue.

Gouled v. United States, supra, and United States v. Lefkowitz, supra, reasoned that the Fourth Amendment (unreasonable search and seizure) and the Fifth Amendment (self-incrimination) are complementary. The Court appeared to hold that even though the method of search was correct, by search warrant or a search incident to arrest, property in which the owner had a right of privacy, such as his personal papers, etc., could not be seized unless they were the fruit of the crime or a means of committing a crime. ¹

In the present case the defendant had no Fifth-Amendment privilege for any of the items seized. The items were the property of the girl or the owners of the farmhouse. An exception may have been the beer bottles. However, the defendant told Warman to throw the beer bottles 'out in the back,' so defendant no longer could assert such a privilege in this regard.

The items were admissible.

III

The defendant assigns as error the state's 'withholding' and 'failing to advise the defendant' that the prosecutrix advised the state that she was going to leave the state before the trial. He asserts that this deprived him of his liberty without due process of law, particularly because he charges the girl testified at the trial that she was not...