State v. Davis

• Decision Date: 04 May 1972
• Citation: 496 P.2d 923,94 Adv.Sh. 1457,9 Or.App. 412
• Parties: STATE of Oregon, Respondent, v. Therell Tyrone DAVIS, Appellant. STATE of Oregon, Respondent, v. Tony Cornelius TRAVIS, Appellant.
• Court: Oregon Court of Appeals

Page 923

496 P.2d 923

9 Or.App. 412

STATE of Oregon, Respondent, v. Therell Tyrone DAVIS, Appellant.

STATE of Oregon, Respondent, v. Tony Cornelius TRAVIS, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted March 31, 1972.

Decided May 4, 1972.

Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellants. With him on the brief was Gary D. Babcock, Public Defender, Salem.

John H. Clough, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before SCHWAB, ^* C.J., and LANGTRY and THORNTON, JJ.

LANGTRY, Judge.

Defendants in this consolidated appeal were jointly tried and convicted, in a trial to the court, for illegal possession of heroin. Former ORS 475.100. Their assignments of error are: (1) their motion to suppress should have been granted; (2) the court erred in permitting evidence of other crimes; and (3) there was insufficient evidence that they possessed the heroin.

Motion to Suppress

The heroin which defendants were charged with possessing was seized by a probation officer from the apartment of one Gary Cox, a probationer under his supervision. The probation officer, Nicholas Nathe, testified that about 2:15 p.m. on October 4, Farrer, a parolee, informed him that he had just come from Cox's apartment where defendants and a Mike Howard were cutting up heroin. Nathe contacted the police and explained that he had information there were weapons on the premises and he needed assistance in determining whether Cox was in violation of his probation.

Nathe and two plain clothes police officers drove to Cox's apartment. As they arrived a person identified as Cramer entered the apartment. Nathe knocked on the door and asked Cramer, who answered the door, to summon Cox. At the door Nathe told Cox he had information that narcotics were on the premises and wanted 'to have a look around,' pointing out that under the terms of his probation 'it was within my prerogative to look around the place.' ¹ Cox responded: 'Okay, come in. * * * Where do you want to start first.' Nathe testified that after he entered Cox said he didn't mind his searching but preferred they get a search warrant before removing anything.

While Cox remained in the living room Nathe proceeded to Cox's rear bedroom where he found a .22 caliber pistol, a hunting rifle, and an 'old vintage' shotgun. Further investigation revealed marihuana and a quantity of capsules later identified as seconal.

Nathe then proceeded to the kitchen where he observed on a table a quantity of loose heroin, several folded packets of heroin, a number of balloons, and a funnel. He turned the material over to the police officers. Defendants, who had emerged from the kitchen area when Nathe and the police first arrived, and Cox were then arrested.

(1). Defendants contend that this warrantless search and seizure violated the Fourth Amendment. Defendants' and the state's arguments assume, and we hold, that the reasonableness of this search and seizure as to defendants is necessarily determined by the rights of Cox, a probationer.

We find no Oregon cases in point ², but cases in other jurisdictions have dealt specifically with the application of the Fourth Amendment in the probation or parole context.

Generally, one released on probation after conviction of a crime is entitled to the constitutional protection against unreasonable searches and seizures. Martin v. United States, 183 F.2d 436 (4th Cir.) cert. denied 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950); United States v. Hill, 447 F.2d 817 (7th Cir. 1971); U.S. et rel. Lombardino v. Heyd, 318 F.Supp. 648 (E.D.La.1970); See ORS 137.240(2). But his status as a probationer is a factor to be considered in determining whether a search and seizure by a probation officer is unreasonable. Martin v. United States, supra; See In Re Martinez, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, cert. denied Martinez v. Craven, 400 U.S. 851, 91 S.Ct. 71, 27 L.Ed.2d 88 (1970); Cf. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

'Searches by parole officers pursuant to their duties, just as other administrative searches * * * (citing cases) are subject to the broad reasonableness requirement of the Fourth Amendment. * * * The conditional nature of a parolee's freedom may result in some diminution of his reasonable expectation of privacy and thus may render some intrusions by parole officers 'reasonable' even when the information relied on by the parole officers does not reach the traditional level of 'probable cause.' A diminution of Fourth Amendment protection, however, can be justified only to the extent actually necessitated by the legitimate demands of the operation of the parole process * * *.' In Re Martinez, 1 Cal.3d at 647, n. 6, 83 Cal.Rptr. at 386, 463 P.2d at 738.

For purposes of our analysis we see no reason to distinguish the rights of probationers and parolees. See ORS 137.240(2). From Martinez and other related cases we are able to derive two principles:

(A). A search by a parole or probation officer need not satisfy completely the usual test of 'probable cause'; (B). The search must have been actuated by the legitimate operation of the probation supervision process. See People v. Gilkey, 6 Cal.App.3d 183, 85 Cal.Rptr. 642, 645 (1970), cert. denied 401 U.S. 924, 91 S.Ct. 887, 27 L.Ed.2d 827 (1971).

Defendants apparently do not dispute that Nathe had sufficient cause to believe Cox was in violation of his probation so as to render a search to verify the narcotics information 'reasonable.' We hold he had sufficient cause.

Defendants argue the search exceeded the needs of a probation inspection because it continued after Nathe had sufficient evidence that Cox had violated his probation. That Nathe had a basis for probation revocation from the handgun and narcotics which he found in the rear bedroom did not compel termination of the investigation. Logically, he may have properly wished to verify the heroin report which prompted the investigation. Moreover, the decision of a court to revoke probation may demand more than one violation of probation and, after revocation, a parole board may consider the violations and independent crimes he uncovered in its decision to parole. Continuation of the investigation in the kitchen was reasonable.

Since, therefore, Nathe had a right to be where he was, seizure of the heroin in plain view on the kitchen table was valid. State v. McGee, Or.App., 93 Adv.Sh. 1790, 492 P.2d 489 (1971); State v. Cate, Or.App., 93 Adv.Sh. 1404, 491 [9 Or.App. 419] P.2d 627 (1971). Sup.Ct. review denied (1972). The trial court properly denied the motion to suppress.

(2). Over objection of defense counsel Cox testified that the week prior to October 4 defendants were in his apartment and he observed Travis give Davis a balloon, from which Davis poured heroin onto a matchbook cover and 'snorted' it, a street expression for sniffed; and at this time Travis offered to sell him some of the heroin.

The state urges the theory that these acts were part of an overall scheme for sale of heroin and thus probative of the charge of possession of heroin on October 4. There was substantial evidence of drug traffic at the apartment but it mainly implicated Cox and Howard. It is difficult to infer any connection between the possession and use of heroin a week prior to the 4th and possession on the 4th with which defendants were charged. That Travis offered to sell some heroin might have some relationship to the circumstances of the alleged possession on the 4th, in which there was an apparent preparation for sale of heroin, but under the facts in evidence it had none. To say it did would distort the 'common scheme or plan' exception to the general probation against evidence of other crimes. State of Oregon v. Long, 195 Or. 81, 244 P.2d 1033 (1952).

The state relies on State v. Lehmann, Or.App., 93 Adv.Sh. 672, 488 P.2d 1383 (1971), and attempts to distinguish our holding in State v. Bowen, Or.App., 93 Adv. St. 1903, 492 P.2d 480 ((1972). Neither case helps the state's position. In each of those cases there was no issue as to whether defendant knew what he possessed was illegal. We held it error to admit evidence of other crimes which was probative only of such knowledge.

In the same way in the case at bar, knowledge that the white powder found on the kitchen table was heroin was not a contested issue. Defendants simply deny that they ever had it in their possession. It was error for the court to admit the evidence of the previous possession, use and attempted sale, but it was not prejudicial.

The case was tried to the court which, in denying defendants' motion for directed verdict and judgment of acquittal, specified the evidence upon which it relied; this evidence did not include Cox's testimony of defendants' prior criminal conduct. When the state first attempted to elicit this testimony, over objection of defense counsel, and represented to the court that the evidence would evince a 'common scheme or plan,' the court responded:

'Very well, if you can show that, you may proceed.'

Ater the evidence came in and, as we have concluded above, failed to satisfy the 'common scheme or plan' exception, defense counsel did not renew its objection, which would have afforded the court an opportunity to make a more informed ruling on its admissibility. We presume, nevertheless, that the court disregarded this testimony.

'* * * In the absence of prejudice appearing in the record * * * the presumption is that the trial judge is not prejudiced by irrelevant information that has come to his attention * * *.' State v. Voshell, 247 Or. 534, 537, 430 P.2d 1010, 1011 (1967).

As we noted in Hurt v. Cupp, Or.App., 92 Adv.Sh. 451, 482 P.2d 759 (1971), it is relatively common for the trial judge sitting as trier of fact to hear or see inadmissible evidence, but...