State v. Douglas

Citation92 Adv.Sh. 139,5 Or.App. 175,481 P.2d 653
PartiesSTATE of Oregon, Respondent, v. Gary LeRoy DOUGLAS, Appellant.
Decision Date25 May 1971
CourtCourt of Appeals of Oregon

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

Rhidian M. M. Morgan, Staff Atty., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

LANGTRY, Judge.

Defendant appeals from conviction of burglary. ORS 164.240. Two errors are assigned: (1) that a motion should have been allowed to suppress the seized contents of defendant's suitcase, and (2) the instruction allowing conviction on a 10 to 2 verdict was error.

It is necessary to relate complicated facts in order to explain our decision on the first assignment.

At 1:30 a.m., February 15, 1970, the city marshal of Hines, Oregon (population 1400), received from nearby tavern operators a report of the breaking and entering of a service station.

The witnesses described the suspect as a young man wearing white pants and a green coat. On investigation, the marshal found evidence that the station had been broken into, and went looking for the man described. While searching back streets, he saw some youngsters running ahead of a man with white pants and a blue or green coat. The streets were wet and muddy. He lost the man in the darkness.

He returned to the service station and called the state police to assist. Officer Stephens of the state police arrived. They sat in Stephens' pickup across the street in the lot of another service station, and while there saw the defendant, dressed in dark clothing, come out of a motel room located on another corner of the intersection.

Defendant made a call from a phone booth, checked his watch several times, then came over to the officers and asked about bus schedules. Stephens replied he didn't know the bus schedule and asked defendant for his name. Defendant gave his name, volunteered that he had a brother-in-law, LeRoy Jones, who lived in the vicinity, and went back to the motel room.

Officer Stephens radioed the dispatcher in nearby Burns, Oregon, to check whether LeRoy Jones was a brother-in-law. The dispatcher checked by telephone with Jones' home and relayed back a negative answer. The officers were suspicious and knocked on defendant's door. Defendant admitted them, Stephens told him the results of his check and asked for more information.

While defendant was searching for identification, the marshal saw a coat 'that looked like the coat I seen earlier' hanging in the open closet. He inspected it and found it was wet and muddy. Stephens asked defendant if he would let them look in a suitcase which was there. He refused. The officer told him several times during the next 20 minutes that if he didn't consent they would get a search warrant to check the suitcase. Defendant continued his refusal. He also denied having a pair of white pants.

The marshal testified that if defendant had sought to leave at this time he thought he would have detained him, but Stephens, the state policeman, testified he would have let defendant go because he could not detain on suspicion.

LeRoy Jones arrived, and said something to the effect that there had been a mistake and defendant was his brother-in-law; that it had been some time since he had seen him. Defendant had arrived by bus that day, rented the motel room, but had not contacted his relatives. Jones, while talking alone with him, tried, at the officers' request, to get defendant to open the suitcase. Jones testified defendant told him he had a right to privacy in this respect, and would not open it. The defendant testified that Jones' urging was a material reason for him eventually opening it.

Jones went outside to join Stephens, who was using his car radio. The marshal came in and was alone with defendant. He testified:

'Q And will you tell the judge the circumstances, how the suitcase got opened?

'A Well, at first he wouldn't--went over to--the suitcase was sitting at the bottom of his clothes--and started fumbling, and he kept talking about his old brown suitcase, and he opened it part way and asked me if we was wanting it open.

'He wasn't going to open it. We went all through a conversation, and I finally told him we didn't care whether he opened it or not because we was going to get a search warrant and open it. Finally he fumbled and opened the bottom of that clothes--he just finally opened one end and dumped it out on the floor of the motel.'

The suitcase contained green stamps worth $330, which later were proven to have been taken from the service station. Defendant put everything back in the suitcase in the presence of Jones, while the marshal was outside telling Stephens that there were no white pants in the suitcase. A few minutes later,...

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2 cases
  • State v. Douglas
    • United States
    • Oregon Supreme Court
    • September 22, 1971
    ...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 Because decisions in cases in......
  • State v. Goetz
    • United States
    • Oregon Court of Appeals
    • October 26, 1971
    ...point.3 No question was raised at trial or on appeal about the propriety of this suggestion by the officer. Compare: State v. Douglas, Or.App., 92 Adv.Sh. 139, 481 P.2d 653, aff'd, 93 Or.Adv.Sh. 517, 488 P.2d 1366 (1971).4 This court was divided in State v. O'Brien, Or.App., 92 Adv.Sh. 1238......

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