State v. Fleming

• Jurisdiction: Oregon
• Citation: State v. Fleming, 665 P.2d 1235, 63 Or.App. 661 (Or. App. 1983)
• Docket Number: 28580,Nos. 28577,s. 28577
• Parties: STATE of Oregon, Respondent, v. James Craig FLEMING, Appellant. STATE of Oregon, Respondent, v. James Craig FLEMING, Appellant. ; CA A23974, CA A23975.
• Court: Oregon Court of Appeals
• Decision Date: 22 June 1983

Page 1235

665 P.2d 1235

63 Or.App. 661

STATE of Oregon, Respondent, v. James Craig FLEMING, Appellant.

STATE of Oregon, Respondent, v. James Craig FLEMING, Appellant.

Nos. 28577, 28580; CA A23974, CA A23975.

Court of Appeals of Oregon.

Argued and Submitted Feb. 8, 1983.

Decided June 22, 1983.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen. and William F. Gary, Sol. Gen., Salem.

John Daugirda, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

NEWMAN, Judge.

Defendant appeals two convictions for burglary in the first degree. ¹ He assigns error to the denial in consolidated proceedings of his motion to suppress evidence obtained from the search of his automobile and statements that he made to the police following his arrest. We reverse and remand for new trials.

The burglary of the Harrington residence on Cascade Drive in Bend was discovered just after 9 p.m. on November 16, 1980. The Harringtons saw two people leaving the vicinity in a Mazda and took the license number. The police determined that the Mazda belonged to a William Fleming of Astoria. They also noticed triangular grid footprints outside the residence characteristic of a Brooks running shoe.

Just after midnight the same night, Police Officer Stenkamp saw a Toyota with two passengers drive past the Harrington residence twice. Stenkamp stopped that car. The driver, William Fleming, produced his operator's license with an Astoria address. He told Stenkamp that he had moved to Bend from Astoria and was showing the passenger, his brother from Alaska, investment property in Bend. From the license number of the Toyota, police learned that William Fleming lived on 56 S.E. McKinley Street in Bend.

Later that morning the police observed the Mazda and the Toyota parked on the street by 56 S.E. McKinley Street. Officer Wauk watched the premises, while other officers applied for a warrant to search the property. Two other officers, Murphy and Reeves, stationed themselves in police cars nearby to cover Wauk. At about 8:50 a.m., Wauk saw defendant leave the McKinley Street address, take something out of either the Mazda or the Toyota, enter an AMC Eagle and drive away. The car had no license plates. Wauk radioed this information to Murphy and Reeves, who followed the Eagle in their police cars and stopped it. It came to a halt in a no-parking zone. Murphy got out of his police car and approached defendant's car from the rear. He then saw a 12-inch by 10-inch Alaska temporary registration plainly visible on the rear window of the car. A temporary registration sticker was also on the left front windowshield of the car, but he did not see it. Reeves joined him.

Murphy asked defendant for identification. Defendant showed Murphy his Alaska operator's license and vehicle ownership papers. A computer check showed that defendant's Oregon driver's license was suspended. Murphy arrested him for driving while suspended.

Because the car was parked in a no-parking zone, Murphy told defendant that he could permit an officer to move the car and lawfully park it, he could permit an officer to drive it to the police impoundment lot or the car would be towed to the police station at defendant's expense. Defendant gave officer Reeves permission to drive the car around the corner and park it in a lawful place on the street. Reeves also asked defendant for permission to search the car, but he refused.

Reeves entered the car on the driver's side. At that time defendant was sitting in one of the nearby police cars, under arrest and handcuffed. Before Reeves entered the car, Murphy had observed a binocular case in the car that resembled a binocular case taken from his aunt in a burglary one week earlier. He also observed that defendant was wearing Brooks running shoes.

Reeves saw that the back seat was folded down but that sticking out from under the fold was what looked like clothing or backpack material. Reeves reached over and lifted the back of the seat "to get a closer look" and saw an automatic weapon, two flashlights and an overnight bag on the seat. Reeves folded down the back of the seat again and got out of the car. At that point he decided to impound the car. Reeves again asked defendant for permission to search the car, and he again refused. Reeves asked if defendant would permit him to drive the car to the police station. Defendant agreed.

Reeves did not conduct an inventory search at the police lot but seized the gun there. He ran a check on the serial number, which indicated that it was taken in the burglary of the Harrington residence the night before. Subsequently, jewelry, coins and another gun were found in the car and identified as articles stolen in the two burglaries. The record does not show that those items were seized pursuant to a search warrant.

At 9:25 a.m., defendant was booked for driving while suspended, carrying a concealed weapon and burglary and was placed in a holding cell. At 11:34 a.m., Detective Shortreed advised defendant of his Miranda rights. Defendant signed a written waiver form, and Shortreed questioned him. Defendant said he wanted to talk to his brother first. He made a phone call to his brother. After the phone call, Shortreed interrogated him about the gun, and defendant told him that "it had been found under a pile of brush in the woods." Shortreed asked if the police could search defendant's car, and defendant again refused.

Defendant moved to suppress all evidence obtained as a result of the search of the Eagle and joined in William Fleming's motion in the state's prosecution of him for burglary to suppress all testimony and evidence relating to Stenkamp's stop of the Toyota. Defendant argued that (1) the stop of the Eagle was the "poisonous fruit" of the earlier "illegal" stop of the Toyota, (2) there was no independent basis for the stop of the Eagle because it rested neither on reasonable suspicion nor on an observation of a traffic infraction and (3) the search of the Eagle, the observations then made, the items seized from the car and defendant's statements at the police station were the "poisonous fruits" of the warrantless search of the Eagle on the street and of the Toyota the previous night.

The trial court denied defendant's motion to suppress, finding:

"1. Murphy stopped the vehicle because he did not observe any license plate on the vehicle;

"2. Upon arresting the defendant, Officer Reeves was given permission to move the vehicle from its precariously located position to one where it could be lawfully parked. The observations then made and the subsequent impoundment and search was permissible as an inventory search of the contents of the vehicle."

On the same date the trial court in the companion case against William Fleming suppressed the evidence seized from a search of the McKinley Street property pursuant to a search warrant. The court found that the validity of that search rested on the connection of William Fleming to the McKinley Street address:

"The defendant's address of 56 S.E. McKinley was obtained following a license record check of a 'black or gray' Toyata Celica vehicle that had been stopped in the West Hills of Bend shortly after midnight by Officer Stenkamp. Approximately three hours earlier the observations and activities of an orange Mazda vehicle did reasonably cause a license check to be made of the Mazda that produced this defendant's name with an Astoria address.

" * * * The stop by Officer Stenkamp was an unlawful stop because he had no suspicion that the occupants of the Toyota had committed a crime, much less a reasonable suspicion. He did speculate that they were 'casing' the neighborhood and coupled with his statement that he would have stopped any vehicle in the neighborhood at that hour, the stop was nothing more than a proscribed random stop.

"There is no evidence before the Court that the McKinley Street address came from any other source but from the unlawful Stenkamp stop of the Toyota. Assuming the officers located the orange Mazda parked next to 56 S.E. McKinley, independently from any license check of the Toyota, such locating of the suspect vehicle would not connect that vehicle with the interior of that residence nor provide any probable cause for its search." (Emphasis in original.)

The trial court found, in the instant case, that Murphy stopped the Eagle because he did not observe any license plate on the vehicle.

Defendant argues that, but for the illegal stop of the Toyota, the police would not have watched the McKinley Street address would not have observed defendant's Eagle and therefore would not have stopped it. Even if the police would not have watched the McKinley Street address or have followed defendant's Eagle but for the illegal Toyota stop, the court nonetheless found that Murphy stopped defendant's car because he did not observe any license plate on the vehicle. The evidence supports that finding. We will not disturb the trial court's finding of historical facts. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968). There was, therefore, an independent reason for Murphy to stop defendant's vehicle. The stop of the Eagle was not the result of the illegal Toyota stop.

Defendant also argues that the stop of the Eagle rested neither on reasonable suspicion nor on an observation of an illegal traffic infraction. We disagree. The trial court found that Murphy stopped defendant's vehicle because he did not observe any license plate on the vehicle. See State v. Carter/Dawson, 287 Or. 479, 485, 600 P.2d 873 (1979); State v. Tucker, 286 Or. 485, 490-95, 595 P.2d 1364 (1979). When Murphy did not observe a license plate, he had probable cause to believe that defendant had committed a traffic infraction. Former ORS 481.230(5), (6); ...