State v. Elk

• Decision Date: 24 April 1968
• Citation: 439 P.2d 1011,249 Or. 614
• Parties: STATE of Oregon, Respondent, v. Francis Levi ELK, Appellant.
• Court: Oregon Supreme Court

Page 1011

439 P.2d 1011

249 Or. 614

STATE of Oregon, Respondent, v. Francis Levi ELK, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton Nov. 1, 1967.

Decided April 24, 1968.

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

Arthur R. Barrows, Deputy Dist. Atty., Pendleton, argued the cause and filed the brief, for respondent.

Before PERRY, C.J., and McALLISTER, O'CONNELL, GOODWIN, DENECKE, HOLMAN and WOODRICH, JJ.

WOODRICH, Justice pro tem.

Defendant was convicted of burglary not in a dwelling. He assigns as error the trial court's denial of his pre-trial motion to suppress certain evidence allegedly obtained by an illegal search and seizure.

On Sunday, September 25, 1966, the Pendleton sheriff's office and the Oregon State Police learned of the theft of a shot gun from a pickup truck parked on a reservation near Pendleton. The police were informed by the owner of the gun that a blue 1957 or 1958 Oldsmobile or Pontiac had been seen very near the pickup just prior to the theft. When he went on shift at 4:00 P.M., September 25, 1966, State Police Officer Rothermel was advised of the theft, the description of the suspected vehicle, and the descritpion of the stolen gun. There was some confusion in the officer's information over the precise make of the stolen shot gun. While on patrol Officer Rothermel was advised as to the location of a car similar to the one described as having been seen near the scene of the theft. About 7:00 P.M., September 25, 1966, Officer Rothermel found the car unoccupied on a side road in a rural area east of Pendleton. The front of the car was headed into the roadside ditch near a fence. The rear of the car projected into the traveled portion of the roadway about two feet. The officer was immediately suspicious that the vehicle was the one described as having been near the scene of the theft.

The officer stopped and upon investigation observed that the trunk lid was open approximately 12 or 13 inches. Without touching the vehicle he was able to see into the open trunk sufficiently to notice the butt of a shot gun or rifle and a quantity of beer. Upon seeing the butt of the gun he immediately suspected this of being the stolen shot gun. The officer did not obtain a search warrant. The officer raised the trunk lid further and determined from the serial number of the shot gun that it was in fact the stolen gun. He also observed that the trunk was full of beer, extending from one side of the trunk to the other and stacked to a height within six inches of the body line of the trunk. The beer was later counted and determined to be 40 unopened six-pack cases of beer. Prior to further raising the lid of the trunk, the officer was not able to verify that the gun was a shot gun nor was he able to determine the quantity of beer located in the trunk. At the time the officer investigated the suspect vehicle he knew who was the owner of the vehicle.

He did not feel himself endangered when he looked into the trunk because he knew the car was unoccupied. Either at the time of Officer Rothermel's raising the trunk lid or shortly thereafter other officers arrived at the scene. The shot gun and beer were removed from the vehicle and taken into custody. The vehicle was later towed into town. After the gun was identified the officers searched the area and as soon as the defendant was located he was arrested on a charge of larceny. The arrest followed the raising of the trunk lid by some 20 to 25 minutes and was effected at a distance of 200 to 250 yards from the vehicle.

After the officers had seized the shot gun and beer, and after the larceny arrest, it was learned by the officers that an amount of beer had been stolen from the burglary victim and the defendant was subsequently arrested for this crime. The officers had not been advised of the theft of the beer at the time the shot gun and beer were seized or at the time the defendant was arrested for the theft of the shot gun, but at the time of its discovery Officer Rothermel suspected that the beer was stolen. The defendant was not questioned about the beer at the time of his arrest.

The trial court's refusal to suppress the evidence in question was apparently based on the premise that no search was necessary to disclose the fruits of the crime in question.

'Search implies invasion and quest, and that implies some sort of force, actual or constructive, much or little.' State v. Hilton, 119 Or. 441, 445, 249 P. 1103 (1926).

It could be argued that there was no 'invasion' of the defendant's privacy in this case because the defendant by leaving his car trunk partially opened made no effort to keep its contents from public view. Because of the holdings later in this opinion, we need not decide whether the officer's minimal raising of a partially opened car trunk lid elevated his conduct to the status of a search.

The state argues that if the officer's conduct is deemed to be a search, it was made as an incident to a lawful arrest. An exception to the demand for a search warrant exists where the search is made as an incident to a lawful arrest. State v. Roderick, 243 Or. 105, 412 P.2d 17, 243 Or. 438, 414 P.2d 351 (1966); State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962). The state relies on ORS 133.310(3), which provides:

'ORS 133.310. A peace officer may arrest a person without a warrant:

'* * *

'(3) When a felony has in fact been committed or a major traffic offense, as defined in subsection (5) of ORS 484.010, has been committed, and he has reasonable cause for believing the person arrested to have committed it * * *.'

To justify an officer in making an arrest without a warrant mere suspicion is insufficient. Likewise, a belief unsupported by facts or circumstances is insufficient, but it is not essential that the officer absolutely know that an offense is being committed. State v. Duffy et al., 135 Or. 290, 295 P. 953 (1931). The officer must have probable cause to believe in the guilt of the suspected party; that is, circumstances must exist which would lead a reasonably prudent man to believe in the guilt of the accused. State v. Duffy, supra. In determining the existence of probable cause, only those facts known to the officer prior to his alleged search may be considered, because of the rule that an unlawful search is not made lawful by the evidence of crime which it brings to light. State v. Roderick, supra; State v. Chinn, supra.

The defendant concedes that no search was conducted until the officer lifted the lid of the car trunk. At that time the officer had reliable information that the crime of larceny had been committed; that the larceny was accomplished from the bed of a pickup truck parked on a reservation near Pendleton, a sparsely settled area; that a car described as to make, year and color was seen in the vicinity of the larceny; and that a shot gun was the subject of the larceny. The officer knew the make and serial number of the shot gun. Armed with this knowledge the officer discovered a car matching the description previously given, parked partly in a ditch on a country road in a remote area out of Pendleton, with the butt of a shot gun or rifle visible in the trunk of the car. We hold that these facts would warrant a reasonably prudent man to believe that the owner of the car was guilty of the larceny of the shot gun. Absolute knowledge may not have been possible until the officer checked the serial number on the gun and made some other investigation, but as noted above, absolute knowledge is not a precondition to making a valid arrest for a felony without a warrant.

The exception to the requirement for a warrant, where the search and seizure is made as an incident to a lawful arrest, is founded upon the necessity to protect the police and to enable the police to gather the fruits of the crime. State v. Chinn, supra. To come within the exception, the search must be an incident of the arrest and must be reasonable. The principles to be applied were set out in State v. Chinn,supra, and need not be restated. Recent authorities on the warrantless search of an automobile are fully set forth in the case of State v. McCoy, Or., 437 P.2d 734 (Decided February 21, 1968).

In determining the reasonableness of a given search the courts are more willing to sanction searches of automobiles than searches of other types of property. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); State v. McCoy, supra; State v. Hoover, 219 Or. 288, 347 P.2d 69, 89 A.L.R.2d 695 (1959). In the instant case the search preceded the arrest by 20 to 25 minutes. During this interval the officers were continuously seeking the defendant. The arrest and search were a part of one uninterrupted transaction. The officers knew that the defendant had two companions with him when the car was seen earlier in the vicinity of the larceny. It was a remote rural area and it was highly likely that defendant and his companions were in the immediate vicinity of the car. It was important for the officers to verify or dispel the belief that the defendant and his companions, who were likely to be in the area, were criminals or innocent persons. If innocent, it would certainly be in the defendant's interest to have that fact established prior to arrest. If guilty, it would be important for the officers in deciding what approach to take toward apprehension of the malefactors.

If probable cause for an arrest exists independently of evidence brought to light by the search, the fact that the search precedes the arrest does not render the search unreasonable nor destroy its character as an incident of the arrest. State v. Chinn, supra; State v. Hoover, supra; State v. McDaniel, 115 Or. 187, 231 P. 965, 237 P. 373 (1925); People v. Williams, Cal., 60 Cal.Rptr. 472, 430 P.2d 30 (19...