State v. Douglas
| Court | Supreme Court of Oregon |
| Writing for the Court | Before O'CONNELL; TONGUE; BRYSON; HOLMAN; O'CONNELL; McALLISTER |
| Citation | 488 P.2d 1366,260 Or. 60,93 Or.Adv.Sh. 517 |
| Decision Date | 22 September 1971 |
| Parties | The STATE of Oregon, Respondent, v. Gary LeRoy DOUGLAS, Petitioner. |
Page 1366
v.
Gary LeRoy DOUGLAS, Petitioner.
Decided Sept. 22, 1971.
Page 1367
[260 Or. 61] Gary D. Babcock, Public Defender, Salem, argued the cause, and filed briefs for petitioner.
John W. Osburn, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Solicitor Gen., Salem.
Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.
TONGUE, Justice.
Defendant was convicted of the crime of burglary after denial of a motion to suppress evidence upon the ground that defendant was coerced into opening his suitcase, which contained some of the stolen goods, by repeated representations of police [260 Or. 62] officers that otherwise they 'would obtain a search warrant,' all in violation of defendant's rights under the Fourth Amendment of the Constitution of the United States. Defendant's conviction was affirmed by the Court of Appeals, Or.App., 92 Adv.Sh. 139, 481 P.2d 653 (1971). In view of the importance of the questions involved we granted defendant's petition for review of that decision.
Because decisions in cases involving alleged illegal searches and seizures depend largely upon the particular facts of each case, we shall review the testimony as given at the hearing on defendant's motion to suppress in more than usual detail.
At about 1:30 a.m. on the morning of February 15, 1970, the city marshal of Hines, Oregon, was informed that a Texaco station had been broken into and that a man with white pants and a blue or green coat had been seen running out. The officer went to investigate and saw a man answering that description run away. Hines is a small town in a rural area in Eastern Oregon in which it is not normal for strangers to be seen running about late at night.
After being unable to find the man, the officer called a state police officer, who came to the scene. While the two officers were conversing, defendant came out of a motel room across the street, went to an outside telephone booth and then approached the officers to inquire about bus service. At that time defendant was wearing dark pants and a sport shirt.
Page 1368
The officers asked defendant his name. He gave his name and also the name of a brother-in-law living in nearby Burns. He then returned to the motel. The officers called the police dispatcher in Burns by radio telephone to check whether defendant had such a [260 Or. 63] brother-in-law there. The Burns police called back with a negative answer.
The officers then went across the street to defendant's motel unit, knocked on the door and asked if they could come in. Defendant admitted that he 'invited them in.' They told him of the call to check with his brother-in-law and asked him for further identification. While defendant was going through his billfold to produce further identification the city marshal looked into an open closet and saw a coat like the one worn by the man he had seen earlier that night. It was wet and muddy and the ground outside on that night was wet and muddy.
According to defendant, the officers then told him about the burglary of the service station and asked if they could look in his suitcase; that he declined to give them permission to do so; that the state police officer then said, 'Well, I can get a search warrant,' and that he said 'Go ahead and get it.' At another point, he answered in the affirmative a question asking whether 'the officer led you to believe if you didn't consent that they would get--would Try to get a search warrant.'
The state police officer testified, to the contrary, that he told defendant that he would 'make an effort to get a search warrant.' He also testified that defendant was not then under arrest and that he had no intent to arrest him at that time and no reason to 'hold' him, although he was suspicious of defendant upon finding the muddy coat. Thus, he testified that if defendant had asked to go he would have been allowed to go, although the police would have followed him. At that time they did not know that anything had been taken from the service station.
[260 Or. 64] The city marshal testified, however, that he told defendant that he would get a search warrant. At another point he testified that he told defendant that he was 'going to Try to get one.' He also testified that although defendant was not arrested at that time they were 'detaining' him and would not have let him leave, but had not so informed him. He testified, however, that although he was suspicious of defendant at that time, defendant was not yet a 'focal suspect of this crime.'
The officers did not inform defendant of any of his constitutional rights at that time. Defendant admitted, however, that he knew at that time that he had 'the right to deny them to search (his) clothing or (his) belongings without a warrant' and 'that was the reason (he) told them that night they couldn't search.' 1
After 'about 10 minutes,' according to defendant, his brother-in-law arrived, apparently as a result of a telephone call from the Burns police. Defendant testified that while defendant's brother-in-law was 'outside,' apparently talking with the state police officer, he was alone with the marshal, who told him that 'it would be better all the way around if I opened it myself because they could get a search warrant'; that 'it was coming out' and 'would be out there in just a matter of minutes.' His brother-in-law then came in and talked alone with defendant. The brother-in-law testified that he also told defendant that 'they had a search warrant. It was on its way, that it would be searched anyway.' Defendant also testified that 'when my brother-in-law made the statement, too, I couuld see no reason to--so I assumed they did have it, so why [260 Or. 65] not open it anyway.' Defendant's brother-in-law then 'went out' and the marshal 'came in' again. Defendant then picked up the suitcase and dumped out the contents. 2
Page 1369
Both the marshal and defendant's brother-in-law denied telling defendant that the officers had a search warrant 'on its way.' Defendant's brother-in-law also testified that 'they were in the process of trying to get a search warrant' and that he 'tried to convince him to open it and to save any embarrassment and any requirement of a search warrant,' but that defendant said 'it was none of their business. It was invading his private business and they didn't need any.'
When defendant's brother-in-law and the state police officer came back defendant's clothes were back in the suitcase, but by then the marshal had told the state police officer that defendant had previously dumped out the contents of the suitcase. The state police officer then asked defendant if he could look at the contents and defendant again dumped out its contents.
The state police officer then checked the contents and found a roll of green stamps, but no white pants. At that time the officers did not know that green stamps had been stolen. The marshal then said that there were 'a lot more' green stamps when the suitcase was previously opened. Several more rolls were then found in the sink in the bathroom. The white pants were also found hidden in a blanket on a closet shelf.
[260 Or. 66] At that point the owner of the service station arrived and it was discovered not only that green stamps had been taken from the station, but that the serial numbers of the missing green stamps matched those found in defendant's motel room. The total value of the green stamps was approximately $330.
Defendant was then arrested and informed of his constitutional rights. The elapsed time between the time when the officers called at the motel and the time when defendant opened his suitcase was 'probably a half hour,' according to defendant.
Three days later, on February 18, 1970, defendant appeared with appointed counsel to be arraigned and pleaded not guilty to a charge of burglary not in a dwelling. The case was then set for trial on March 10, 1970. On March 3, 1970, defendant filed a motion for an order to suppress as evidence 'the contents of a suitcase' upon the ground that 'no search warrant was issued and said suitcase was only opened through coercion and duress' by the police officers. The motion was supported by a short affidavit alleging that the officers 'repeatedly told me that they would obtain a search warrant for the suitcase' if he refused to open it; that he believed these representations and otherwise would not have consented to an examination of the contents of the suitcase.
A hearing was held on the motion to suppress, at which the officers and other witnesses, as well as defendant, testified to the facts as already stated. Based upon that testimony, and after observing the demeanor of the witnesses, the trial judge found at the conclusion of the trial that 'the defendant was not coerced in any way to open the suitcase'; that defendant also was not hold a warrant was on its way, but [260 Or. 67] was told that if he didn't open the suitcase the officers 'would Attempt to get a warrant'; that at the time 'defendant was not a focal suspect' and 'was not in custody,' but that there was 'suspicion only.'
In beginning a discussion of the law applicable to the facts of this case it is perhaps an understatement to say that the subject of illegal searches and seizures is one of the most confused and difficult subjects of the law today.
We start, of course, with the recognition that the Fourth Amendment of the Constitution of the United States does not prohibit All searches and seizures, but only 'unreasonable searches and seizures.' It follows that 'standards of reasonableness under the Fourth Amendment are not susceptible
Page 1370
of Procrustean application.' 3 It also follows that the determination of whether a search and seizure is 'unreasonable'...To continue reading
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State Of Or. v. Hall, SC S49825
...the law permits them to do, the coercion that the threat may produce is not constitutionally objectionable.'" (quoting State v. Douglas, 260 Or. 60, 81, 488 P.2d 1366 (1971) (O'Connell, C. J., dissenting)). In other circumstances, however, prior unlawful police conduct may bear upon the cou......
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State v. Carter
...for permission to search the vehicle; that the discovery of the marihuana and pistol was the result of a consent search, State v. Douglas, 260 Or. 60, 488 P.2d 1366 (1971), cert. den. 406 U.S. 974, 92 S.Ct. 2420, 32 L.Ed.2d 674 (1972); State v. Sell, 9 Or.App. 299, 496 Page 798 P.2d 44 rev.......
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State v. Hall, (CC 9701546CR; CA A109813; SC S49825).
...the law permits them to do, the coercion that the threat may produce is not constitutionally objectionable.'") (quoting State v. Douglas, 260 Or. 60, 81, 488 P.2d 1366 (1971) (O'Connell, C.J., dissenting)). In other circumstances, however, prior unlawful police conduct may bear upon the cou......
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State v. Florance
...That determination involves a balancing of the right of privacy of an individual against the needs of the state. State v. Douglas, 260 Or. 60, 67, 488 P.2d 1366 (1971), cert. denied, 406 U.S. 974, 92 S.Ct. 2420, 32 L.Ed.2d 674 (1972). We have also held that whether a search was reasonable d......
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State Of Or. v. Hall, SC S49825
...the law permits them to do, the coercion that the threat may produce is not constitutionally objectionable.'" (quoting State v. Douglas, 260 Or. 60, 81, 488 P.2d 1366 (1971) (O'Connell, C. J., dissenting)). In other circumstances, however, prior unlawful police conduct may bear upon the cou......
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State v. Carter
...for permission to search the vehicle; that the discovery of the marihuana and pistol was the result of a consent search, State v. Douglas, 260 Or. 60, 488 P.2d 1366 (1971), cert. den. 406 U.S. 974, 92 S.Ct. 2420, 32 L.Ed.2d 674 (1972); State v. Sell, 9 Or.App. 299, 496 Page 798 P.2d 44 rev.......
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State v. Hall, (CC 9701546CR; CA A109813; SC S49825).
...the law permits them to do, the coercion that the threat may produce is not constitutionally objectionable.'") (quoting State v. Douglas, 260 Or. 60, 81, 488 P.2d 1366 (1971) (O'Connell, C.J., dissenting)). In other circumstances, however, prior unlawful police conduct may bear upon the cou......
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Schneckloth v. Bustamonte 8212 732, No. 71
...2 Md.App. 440, 234 A.2d 762; State v. Witherspoon, 460 S.W.2d 281 (Mo.); State v. Forney, 181 Neb. 757, 150 N.W.2d 915; State v. Douglas, 260 Or. 60, 488 P.2d 1366. 15. This view is bolstered by Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. There the Court determin......