State v. Hogg

• Decision Date: 05 November 1971
• Citation: 490 P.2d 198,93 Adv.Sh. 967,7 Or.App. 99
• Parties: STATE of Oregon, Respondent, v. Martin Grant HOGG, Appellant.
• Court: Oregon Court of Appeals

Page 198

490 P.2d 198

7 Or.App. 99

STATE of Oregon, Respondent, v. Martin Grant HOGG, Appellant.

Court of Appeals of Oregon, Department 1.

Submitted on Briefs July 19, 1971.

Decided Nov. 5, 1971.

Ken C. Hadley, Deputy Public Defender, and Gary D. Babcock, Public Defender, Salem, for appellant.

Frank J. Coumont, Dist. Atty., Astoria, for respondent.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

LANGTRY, Judge.

Defendant appeals from a conviction for unlawful possession of narcotics. ORS 474.020. The only assignment of error meriting consideration is that the marihuana seized by the officers should have been suppressed.

On the evening of April 26, 1970, three Seaside police officers were sitting in a parked patrol car on a city street looking for a drunk driver reported in the general vicinity. One of the officers saw someone walking on the opposite side of the street, turned his flashlight on the person, recognized him as Martin Hogg, and called him over to ask if he had seen the drunk driver, and, also, according to his testimony at the suppression hearing, to search him for weapons. (From the record, apparently all the activity as pertains to this assignment of error was attributable to one officer.) The officer had searched defendant on prior occasions, but only mentioned one time--a weapons search--at the hearing on the motion to suppress. The defendant, as we will note later claimed several previous illegal searches had been made of him by the same officer. Defendant trotted over to the patrol car, and in doing so was observed by the officers to have dropped a shiny object. The same officer who called him over asked defendant if he minded being searched; defendant said he didn't, and was patted down. Nothing was found. In his testimony at the suppression hearing the officer said that he then walked to where he had seen defendant drop the shiny object and picked up a foil package containing marihuana cigarettes. Defendant was arrested for unlawful possession of marihuana. In his direct testimony at the trial, the officer said the search came after he picked up the marihuana, and after the arrest, before placing defendant in the patrol car.

The basis for defendant's motion to suppress is the exclusionary rule enunciated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963): that the evidence was the 'fruit' of 'official illegality.' Defendant asserts previous searches by this same officer were illegal; that he could only anticipate another illegal search, hence his abandonment of the marihuana in such anticipation made the evidence 'tainted.'

The defendant testified at the suppression hearing, and added, after his testimony otherwise had been completed:

'THE DEFENDANT: Officer Osterholme has on several occasions--I would say seven--searched me in Seaside for no reason at all; just when he happened to see me downtown: twice in my vehicle, three times, four times, and he has searched other people who have been with me for no reason whatsoever that I know of; just being in town. He would see me and then search me, every pocket I had.'

To this, and at the time of denying the motion to suppress, the court said:

'The Court has no response and it is not material at all to this matter. * * * (I)f that is the situation * * * it is not desirable nor legal police practice * * *.

'* * *

'* * * (T)he Court doesn't understand that any citizen, if he is not under some sort of valid, reasonable, probable suspicion of * * * crime, has to either stop and identify himself or to cross a street and converse with officers nor submit to a search * * * if this marihuana had been revealed as a result of a search * * * this Court would have suppressed it. * * * The search * * * was illegal * * *.' (Emphasis supplied.)

The court then held that because the marihuana had been abandoned it was not subject to suppression.

The testimony of the police officer at the trial, as distinguished from the motion to suppress, about previous searches was as follows:

First time:

'A Once I stopped and searched his truck and him. There was an empty--I believe, an empty wine bottle in the truck and there was also a juvenile with him that had been drinking.

'Q But you found no evidence of any crime committed by the defendant?

'A No, sir, I did not.'

No reason was stated by the officer for stopping the defendant on the first occasion.

The second time:

'A I believe it was on the street and I patted him down and he said, 'I'll take this out of my pocket. It's my cigarettes,' and he pulled out a small case and I asked him what was in that and he said, 'Oh, something I'm keeping for a friend,' and I said, 'What is that?' and he said a syringe, and I looked in the syringe and it didn't have anything in it, and that was about the end of that.'

No reason was stated for stopping the defendant on the second occasion.

The third time:

'A The third time I was in the Seaside Police Station and a man came in and said that Martin Hogg had threatened him with a knife and he was in a laundromat and I went down to the laundromat and at this time I told him what the man had accused him of and I patted him down and he--I don't even think I patted him down. I believe that Martin took a knife out and handed it to me as the knife that was used in the incident.

'Q Did it turn out that he threatened the man with the knife?

'A Yes, he did.

'Q In defense of himself?

'A Yes. He stated these people had come in to try and collect some money from him that he owed and that they started roughing him up and that the only reason he pulled the knife was to scare them, I believe was the words he told me.

'Q And did your investigation basically bear that out as true?

'A Yes, it did.'

Defendant did not testify at the trial, but his objection to the marihuana as evidence was continued at the trial.

Our review of the transcript leads us to conclude that at least two of the previous searches were illegal and unjustified. As we have already noted, the trial court said that the search conducted when defendant came over to the patrol car on the night of his arrest was also illegal, and if contraband had been discovered it would have been suppressed. At the trial, after having heard this, as we have noted above in his direct testimony, the officer placed the search after the arrest, then, on cross-examination when he was faced with the inconsistency between that and his testimony at the suppression hearing, he said, 'I believe I did (pat him down before crossing the road to pick up the shiny object). I couldn't state for sure now.' After more redirect and recross-examination, and an opportunity during the noon hour to read a transcript of his former testimony he returned to his original version of the search.

No Oregon cases in point have been found. Initially, as a matter of general search and seizure law, it may be said that in the ordinary case, just as the trial court held, where a defendant has abandoned contraband which is then found by police, he cannot have the evidence suppressed since he has disclaimed interest in the evidence by his abandonment. Even if an illegal search follows the abandonment the evidence is not considered a product of an illegal search because the search itself bore no fruit. Burton v. United States, 272 F.2d 473 (9th Cir.), cert. denied 362 U.S 951, 80 S.Ct. 863, 4 L.Ed.2d 869 (1960). We feel that the officer's conduct in the instant case significantly changes the facts so as to make the Burton reasoning inapplicable.

A more appropriate rationale was stated in Gascon v. Superior Court, 169 Cal.App.2d 356, 337 P.2d 201 (1959). There, the officers stopped the defendant on the street and announced they intended to conduct a search. The defendant fled. Before he was overtaken he dropped a package containing narcotics, and he was charged with their possession. Since the officers did not have probable cause to search him, the court concluded that the accused was fleeing from an

'* * * attempted illegal invasion of his constitutional rights * * * and * * * he attempted to dispose of the evidence which the officers would have obtained had they been able to complete the threatened unlawful act. * *...