State v. Frink

• Decision Date: 17 September 1979
• Docket Number: No. 40399,40399
• Citation: 42 Or.App. 171,600 P.2d 456
• Parties: STATE of Oregon, Respondent, v. Timothy Dennis FRINK, Appellant. ; CA 12953.
• Court: Oregon Court of Appeals

Page 456

600 P.2d 456

42 Or.App. 171

STATE of Oregon, Respondent, v. Timothy Dennis FRINK, Appellant.

No. 40399; CA 12953.

Court of Appeals of Oregon.

Argued and Submitted May 24, 1979.

Decided Sept. 17, 1979.

James E. Mountain, Jr., Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Stuart R. Chandler, Certified Law Student, Salem.

Before SCHWAB, C. J., and TANZER, RICHARDSON and ROBERTS, JJ.

RICHARDSON, Judge.

Defendant appeals his conviction for Burglary in the Second Degree, ORS 164.215, and contends that his motion to suppress evidence seized in the course of a warrantless search should been have allowed.

On August 31, 1978, the Newport Pharmacy was burglarized and a large quantity of prescription drugs was stolen. Defendant was a prime suspect. That day the State Police received an anonymous report that an individual named Tim was "shooting up" a child, named Junior, with drugs at apartment 24 of a specified address. Both the local police department and the district attorney were notified. Concerned with the safety of the youngster, the district attorney approached the address and encountered a young boy who was acting abnormally, and who directed him to apartment 24.

The door to the apartment was standing wide open. The district attorney, without entering, peered inside and observed several large pharmaceutical bottles of pills and various drugs lying about the residence. The district attorney recognized some of the items as controlled substances. There were also several wholesale cartons lying on the apartment floor. There was a partition wall blocking the view to the entire apartment. The district attorney radioed the police for assistance. Two officers immediately responded. When they arrived they both encountered the youth whom they knew as Junior. Under the direction of the district attorney the police officers entered the apartment to ascertain who if anyone was there. They found no one. While in the apartment the officers inspected some of the pill bottles more closely and found they carried labels from the Newport Pharmacy. Other controlled substances were also identified. The officers were already aware of the Newport Pharmacy burglary and the items taken.

The youngster approached the district attorney and asked if he wanted to find Tim. The boy then pointed to a nearby apartment. As the officers approached that residence several persons began leaving. When asked, defendant admitted to being Tim, and was placed under arrest.

Defendant challenges the warrantless search of his apartment as being unconstitutional, the subsequent seizure of the pills as not being inadvertent, and his arrest as tainted by the illegal search. We affirm.

Defendant does not contend that the initial viewing of the pill bottles and paraphernalia through the open door was illegal, rather, he argues that the subsequent warrantless entry of the apartment and seizure of the items was unreasonable. The state argues that because the items were observed from the hallway, consistent with the plain view exception to warrantless seizure of evidence, the officers were entitled to enter and seize them. That argument goes too far.

It is well established that under certain circumstances the police may make a warrantless seizure of evidence which is in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Keller, 265 Or. 622, 510 P.2d 568 (1973). This doctrine, however, has not been extended to authorize a warrantless entry of a residence in order to seize the items spotted.

The nonintrusive viewing of the pharmaceutical paraphernalia through the open door established only probable cause to believe the apartment contained contraband but did not legitimize any subsequent entry to effect a seizure. The entry must be made under authority of a warrant or exigent circumstances. Justice Stewart implied such a result in the plurality opinion in Coolidge v. New Hampshire, supra:

"An example of the applicability of the 'plain view' doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. * * * Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across evidence while in 'hot pursuit' of a fleeing suspect. * * * And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant. * * * Finally, the 'plain view' doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. * * *

"What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. * * * " 403 U.S. at 465-66, 91 S.Ct. at 2037-2038.

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" * * * (P)lain view...