State v. Haynes
| Decision Date | 31 December 1962 |
| Citation | 377 P.2d 166,233 Or. 292 |
| Parties | STATE of Oregon, Respondent, v. William Woodman HAYNES, Appellant. |
| Court | Oregon Supreme Court |
Thomas J. Curran, Portland, argued the cause and filed a brief for appellant.
David Robinson, Jr., Deputy Dist. Atty., for Multnomah County, argued the cause for respondent. On the brief were Charles E. Raymond, Dist. Atty., and Glenn A. Geurts, Chief Criminal Deputy, of Multnomah County, Portland.
Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.
The defendant was indicted, tried and convicted of burglary. From the judgment of conviction, he appeals.
The defendant's sole assignment of error is based upon the defendant's contention that prior to his arrest on the present charge, he was arrested in his home on a warrant issued out of the Municipal Court for a misdemeanor, charging a violation of the city's ordinance, and at this time there was seized a pair of defendant's shoes. There was found at the scene of the burglary a footprint, which was identified as having been made by one of defendant's shoes.
After the jury had been impaneled and sworn, and testimony taken, and at the time the shoe was being identified, but prior to its admission into evidence, the defendant made an oral motion to suppress this evidence on the grounds that the shoes were taken in violation of the defendant's constitutional rights, by an unlawful search and seizure. The trial court denied the motion on the grounds that the motion was not timely made.
The rule of law that a motion to suppress evidence must be made prior to trial, unless the defendant was unaware of the seizure, or had no opportunity to present his motion before trial, obtains in this jurisdiction. State v. Harris, 119 Or. 422, 249 P. 1046; State v. Goldstein et al., 111 Or. 221, 224 P. 1087.
A motion to suppress evidence is a separate issue from the question of the guilt or innocence of the defendant. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. The motion is addressed to the court and is made out of the hearing of the jury.
Orderly procedure requires that such motion be made prior to trial. A jury should not be required to sit for days awaiting the outcome of a collateral issue.
The defendant contends he was surprised by the presentation of the shoe at the trial. The record discloses the shoe was seized by an officer on July 7, 1961, and a...
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