State v. Hirsch
| Decision Date | 31 January 1974 |
| Parties | STATE of Oregon, Respondent, v. Mark Lee HIRSCH, Petitioner. |
| Court | Oregon Supreme Court |
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender, Salem.
John W. Osburn, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Walter L. Barrie, Asst. Atty. Gen., Salem.
The defendant was indicted for a theft by receiving. ORS 164.095. The jury returned a verdict of guilty and the defendant appealed. The Court of Appeals by per curiam opinion, State v. Hirsch, 12 Or.App. 20, 503 P.2d 726 (1972), held:
We granted review because the Court of Appeals relied upon their decision in Keller, in which we granted review and reversed. See State v. Keller, 265 Or. 622, 510 P.2d 568 (1973).
A review of the evidence in this case reveals there is no similarity between the facts in the case at bar and those in State v. Keller, Supra.
The defendant contends '(t)he search of defendant's truck and seizure of evidence were unreasonable because they were not made incident to an arrest, nor in an emergency situation, nor after the defendant had informatively given his consent, nor as a proper inventory search.'
An examination of the transcript of evidence reveals the following facts. At approximately 2 a.m. on February 6, 1972, Officers Now and Clayton observed a U-Haul truck parked behind a furniture store in Toledo, Oregon. Earlier, Officer Now had attempted to stop the truck but it had eluded him. The defendant and his friend, Mr. Hunt, were standing by the truck. Both men denied any connection with the truck but subsequently the defendant produced a 'U-Haul Co. Truck Rental Contract' showing the truck had been rented to a Mr. Edward D. Mabe of Toledo, Oregon, destination Kansas City, Missouri. Defendant told the officers he was connected with Mr. Mabe and had custody of the truck and produced to key to it. Officer Now testified:
The truck (cab with separate enclosed van) was approximately '20 percent full.' Defendant stated he was from Nebraska and was taking his personal belongings to Nebraska. No arrest was made. The defendant and Mr. Hunt left in Hunt's car. The officers returned to their stations.
Mr. Hunt had no connection with the defendant's activities. They were old acquaintances and had met by happenstance about 10 p.m. Saturday, February 5, at the Keg Tavern, Toledo, Oregon. After several drinks they left with defendant's brother and went to another tavern. Hunt 'had too much to drink' and defendant drove Hunt's car around the Bay Road area and stopped at certain houses. Hunt testified:
'Well, each time one guy got out of the car and walked around the place, the house that they stopped at, then got back in the car and went to another one, two or three houses before we returned to Toledo.
'Q Did Mr. Hirsch make any comment about that on the way back to Toledo?
'A Yes, he made one comment that I know of, something to the effect that the house would be easy to loot.
'* * *.
'Q Did you contact Officer Clayton that night?
'A Yes.
'Q And what was your reason for doing that?
'A Well, I wanted him--wanted them to know that I wasn't involved in anything, that I really didn't know what I was mixed up in, so I just wanted them to know that I wasn't involved.'
Officer Clayton testified:
'A Well, after I left the scene down there at Bateman's (furniture store) I went back to the office, and at the office Mr. Hunt came into there to talk to me.'
Officer Now had asked to see the defendant's driver's license when he first contacted the defendant at the back of Bateman's furniture store. The defendant had told him he had a suspended license; 'that he had driven down to the parking lot in Mr. Hunt's vehicle.' After Hunt had talked to Officer Clayton, Clayton called (via radio telephone) Officer Now. Regarding this call, Officer Now testified:
'* * *.
* * *'
Officer Now was to go off duty at 8 a.m. He was proceeding on Highway 20 toward Newport when the U-Haul truck passed him, going in the opposite direction. Officer Now turned around immediately and began pursuing the truck at high speed but could not overtake the truck. He radioed to Officer Clayton to intercept the truck at the Toledo junction. Officers Clayton and Smith observed the truck as it passed the junction and pursued it at a high rate of speed and finally stopped it. Defendant was driving the truck. Officer Now arrived at the scene. The defendant was placed under arrest for violation of the basic rule (speed) and operating a motor vehicle without an operator's license. The officer read to defendant his 'Miranda' constitutional rights, which the defendant said he understood. Officer Now then asked the defendant if they could look in the truck. He testified:
'A I asked Mr. Hirsch if we could look in the back of the truck. His words were, And I said, 'Well, if we did look in it earlier as you said, you won't mind if we look in it again, will you?' And he said, 'No,' and he opened the truck.
'* * *.
'A At that time I observed that the truck was completely full of furniture and other household items including appliances and in addition to the items that we had seen in the truck earlier in the evening (morning).'
Defendant stated the property in the truck was his and he was taking it to Nebraska. Officer Clayton entered the van and wrote a brief description of the property. The defendant testified, on direct examination, that he was driving and had a suspended driver's license; that he had parked the truck 'in back of Lou's Dog House in Newport' for the night. He further testified:
'A Well, they stopped me going east as I had just passed the Toledo junction. The Toledo policeman (Clayton) stopped me, and we talked for a few minutes and then the deputy (Now) drove up, and I believe the first thing he asked me for was my driver's license which I didn't have, and then he asked me if he could look in the back of the truck, and I told him that I didn't feel it was necessary beings as they had looked through the truck earlier, and he said that he felt it necessary. So I unlocked the truck and lifted the hood and he proceeded to look around the back of the truck, and I closed the deal, closed the hood and locked it * * *.
'Q When the deputy looked in the back of the truck, did he indicate--did he say anything?
'A Only thing I remember him saying was, 'Just what I thought.'
'Q He said, 'Just what I thought,' when he looked in there?
'A Yes.
'Q Did he indicate to you what he was thinking about?
'A Yes, I knew what he was thinking.
'Q What's that?
'A I knew he was thinking the furniture was stolen.
The defendant testified at the hearing on the motion to suppress but did not take the witness stand at the jury trial.
The defendant locked the van portion of the truck and kept the key. The officers impounded the truck and parked it in the courthouse parking lot. Defendant was lodged in the Lincoln County jail and charged with the crime of theft.
On the same day that defendant was lodged in jail, February 6, Officer Stone of the Lincoln County sheriff's office made an inventory of the property in the van portion of the truck. Officer Stone testified:
On February 7 Mr. Thompkins, defendant's father-in-law, went to the sheriff's office to seek the release of the U-Haul truck and its contents in order to return the rented truck. Defendant, Mr. Thompkins, and Deputy Sheriff Now signed an 'Order for release of property' which provided that Mr. Thompkins would return the truck to the U-Haul Company and store the 'contents (household furniture and appliances)' at his residence in Springfield, Oregon.
On February 12, 1972, a Mr. Olsen reported to the sheriff's office that his home had been burglarized. Most of the stolen items had been...
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...law permits them to do, the coercion that the threat may produce is not constitutionally objectionable’ " (quoting State v. Hirsch , 267 Or. 613, 622, 518 P.2d 649 (1974) )); State v. Douglas , 260 Or. 60, 79, 488 P.2d 1366 (1971), cert. den. , 406 U.S. 974, 92 S.Ct. 2420, 32 L.Ed.2d 674 (1......
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