State v. Dempster

• Decision Date: 06 December 1967
• Citation: 434 P.2d 746,248 Or. 404
• Parties: The STATE of Oregon, Respondent, v. Edward J. DEMPSTER, Appellant.
• Court: Oregon Supreme Court

Page 746

434 P.2d 746

248 Or. 404

The STATE of Oregon, Respondent, v. Edward J. DEMPSTER, Appellant.

Supreme Court of Oregon, In Banc.

Argued and submitted Sept. 8, 1967.

Decided Dec. 6, 1967.

Robert L. Allen, Portland, argued the cause for appellant. With him on the brief were Boyrie & Miller, Portland.

Jacob B. Tanzer, 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, HOLMAN and LUSK, JJ.

McALLISTER, Justice.

The defendant appeals from a conviction in Multnomah county of illegal possession of narcotics. He assigns as error only the denial of his motion to suppress as evidence the narcotics and a hypodermic syringe and needle taken from his person.

The evidence adduced at the hearing of the motion to suppress established the following basic facts. During the evening of January 6, 1966, the defendant was stopped on the street in Portland by Sergeant Kuntz, a police officer. The officer knew defendant and questioned him about his activities and learned that defendant was on probation. Defendant was not detained.

Two nights later as defendant was walking in the vicinity of 10th and Couch Streets in Portland he was again hailed by Sergeant Kuntz. The officer again questioned defendant about his activities and particularly about his association with one Ralph Lemon, who was suspected by the police of stealing from parking meters. The officer learned that defendant was living with Ralph Lemon. According to the officer he then requested defendant to accompany him 'voluntarily, not under arrest,' to the police station so that the sergeant could contact defendant's probation officer, check defendant's status and learn how the probation officer felt about defendant's association with Ralph Lemon. The sergeant testified that defendant agreed to accompany him to the police station and got in the officer's car. The sergeant then called several other police cars to the scene and according to defendant sent them to find Ralph Lemon. A policeman from one of these cars rode to the station with the defendant and Sergeant Kuntz. En route Sergeant Kuntz advised defendant of his constitutional rights.

At the station defendant was taken to Sergeant Kuntz's office where he was left in the charge of another officer while the sergeant went to the Record Bureau to check the records concerning defendant. The sergeant returned from the Record Bureau bearing a bench warrant for defendant's arrest, which had been issued on December 21, 1965, for failing to appear in response to a complaint charging defendant with disregarding a traffic signal. Sergeant Kuntz showed the warrant to defendant, told defendant that he was under arrest, and then searched defendant and found on his person the narcotics and paraphernalia which are the subject matter of the motion to suppress.

The only material difference between the testimony of the defendant and of Sergeant Kuntz is whether defendant consented to go to the police station with the officer voluntarily, or was ordered to do so. Defendant testified that the officer said 'I think you better get in the car, Dempster, while I check this out.' According to the defendant he thought he was under arrest from the time he was ordered to get into the police car.

The state concedes that Sergeant Kuntz did not have probable cause to arrest defendant when he was first detained and that if defendant's initial detention amounted to an arrest it was unlawful. We find it unnecessary to decide whether defendant was arrested when he got into the police car to go to the station with Sergeant Kuntz. See, however, State v. Krogness, 238 Or. 135, 139, 388 P.2d 120, cert. den. 377 U.S. 992, 84 S.Ct. 1919, 12 L.Ed.2d 1045 (1964). Defendant concedes that at the police station he was shown the bench warrant and told that he was being arrested pursuant to the warrant. Defendant further testified that he was not searched until after his arrest at the police station under the warrant.

Defendant contends that his initial detention amounted to an arrest, that the arrest was unlawful and that any subsequent search was tainted with the illegality of the initial arrest. Defendant argues that the evidence taken from him was the 'fruit' of an illegal arrest and relies on Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We think that case does not support defendant's position. Assuming that defendant's initial detention was an unlawful arrest, nevertheless, defendant was lawfully arrested at the police station before he was searched. The validity of the bench warrant is not challenged, and when the sergeant found the warrant he was bound to obey its command and arrest defendant.

A reasonable search incident to a lawful arrest is legal. State v. Elkins, Or., 422 P.2d 250, 251 (1966); State v. Roderick, 243 Or. 105, 108, 412 P.2d 17 (1966); State v. Chinn, 231 Or. 259, 266, 373 P.2d 392 (1962). The record does not disclose whether the search of defendant was a general search or a routine taking of his property before locking him up. In either event it appears that the search was incident to the arrest.

We need not speculate what our holding would be if Sergeant Kuntz had not fortutiously found in the files a bench warrant for defendant's arrest and, nevertheless, had searched defendant's person and seized the narcotics. The lawful arrest on the bench warrant purged the search incident thereto of...