State v. Hansen

• Decision Date: 10 December 1981
• Docket Number: No. C,C
• Parties: STATE of Oregon, Respondent, v. William Wayne HANSEN, Appellant. 8005-31665; CA 19706.
• Court: Oregon Court of Appeals

Page 390

635 P.2d 390

54 Or.App. 465

STATE of Oregon, Respondent, v. William Wayne HANSEN, Appellant.

No. C 8005-31665; CA 19706.

Court of Appeals of Oregon.

Argued and Submitted July 27, 1981.

Decided Nov. 2, 1981.

Reconsideration Denied Dec. 10, 1981.

Wayne Mackeson, Certified Law Student, Portland, argued the cause for appellant. On the brief was Desmond D. Connall, P. C., Portland.

Stephen F. Peifer, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

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

THORNTON, Judge.

The question presented by this appeal is the legality of a police entry of defendant's residence, the "securing" of the residence by the police while an officer procured a search warrant and the subsequent search of the premises after the warrant arrived. More precisely, the issue is whether the actions of the police in "securing" defendant's residence rendered illegal a subsequent search with a search warrant issued in reliance on information other than that gained during the entry and "securing" of the residence.

Defendant appeals from a judgment of conviction for possession of a controlled substance. His sole assignment of error is the denial of his motion to suppress a quantity of marijuana seized after the warrant was obtained.

The essential facts are as follows:

Portland police, for two months, had been conducting an undercover investigation of defendant for suspected marijuana dealing. One of the officers had gained the confidence of Wayne Bradshaw, who was believed to be obtaining his supply of marijuana from defendant. On the date in question, Officer Sawyer telephoned Bradshaw in an attempt to buy a few pounds of marijuana. On two previous occasions, Bradshaw had delivered an ounce of marijuana to Sawyer. Both times, police had observed Bradshaw go to defendant's home before making the delivery.

At 3 p. m., pursuant to the telephone call, Sawyer met with Bradshaw in a restaurant parking lot to negotiate the sale. In working out the details, Bradshaw made four trips back and forth between Sawyer and defendant's home (located five or six blocks away), all under the observation of two police surveillance units. During this time, Bradshaw told Sawyer that the high quality marijuana Sawyer was attempting to buy was not available, but there was a "shopping bag" full of lower quality marijuana at his supplier's house. When Bradshaw last left Sawyer in the parking lot at 4:47 p. m., he agreed to return with a pound of the lower quality marijuana. The officers knew of no reason why Bradshaw would not have delivered the marijuana, and Bradshaw was unaware that Sawyer was a police officer.

Instead of waiting, Sawyer radioed his surveillance units and told them to "secure the residence," if Bradshaw went back to defendant's home. The officers in the surveillance units understood that they were to enter the house, arrest Bradshaw and defendant and "secure the premises for execution of a search warrant."

Two uniformed officers, Runnels and Muncy, went to the front door at 4:54 p. m. and knocked; defendant answered. As a pretext, Muncy told defendant that he had information about a car defendant had previously reported stolen; defendant allowed the officers in. Once inside, the officers drew their guns and arrested defendant and Bradshaw for possession of a controlled substance. The officers had neither an arrest warrant nor a search warrant.

Runnels searched defendant and found a small handgun. Minutes later, plainclothes officers Bell, Saylor, Lambert and Conlee entered the house. After handcuffing Bradshaw and defendant, the officers walked through the rest of the house and looked in closets for other persons. During this time, officers discovered several guns in various parts of the house. The officers radioed back to Sawyer and told him "the residence has been secured" and "two people inside were secured." Officers Sawyer and Nyberg went into the house and then left to prepare a search warrant affidavit.

Officer Saylor asked defendant for permission to search the house, but defendant declined, saying he first wanted to speak with an attorney. The officers held Bradshaw and defendant, handcuffed, in defendant's living room for two and a half hours until Sawyer and Nyberg arrived with a search warrant at 7:28 p. m. The officers then commenced an hour-long search of the house. The search uncovered two...