State v. Hoover

• Decision Date: 25 November 1959
• Citation: 347 P.2d 69,219 Or. 288,89 A.L.R.2d 695
• Parties: , 89 A.L.R.2d 695 STATE of Oregon, Respondent, v. Raymond HOOVER, Appellant.
• Court: Oregon Supreme Court

Page 69

347 P.2d 69

219 Or. 288, 89 A.L.R.2d 695

STATE of Oregon, Respondent, v. Raymond HOOVER, Appellant.

Supreme Court of Oregon, Department 1.

Argued Sept. 9, 1959.

Decided Nov. 25, 1959.

Glenn D. Ramirez and Robert M. Redding, Klamath Falls, argued the cause for appellant. Glenn D. Ramirez submitted the brief.

O. W. Goakey, Klamath Falls, argued the cause for respondent. With him on the brief was Arthur A. Beddoe, Klamath Falls.

Before McALLISTER, C. J., and ROSSMAN, PERRY and REDDING, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, Raymond Hoover, from a judgment of the circuit court based upon a verdict which adjudged him guilty of the crime proscribed by ORS 166.270 which provides in part:

'* * * any person who has been convicted of a felony against the person or property of another or against the Government of the United States or of this state * * * who owns, or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person * * * shall be punished upon conviction by imprisonment in the penitentiary for not more than five years.'

The defendant had formerly been convicted of automobile theft, and thus was in that particular subject to the act.

The defendant presents ten assignments of error; the principal one of them is based upon a contention that the evidence upon which the conviction was based was the fruit of an unlawful search and seizure, and therefore should have been suppressed.

Early in the morning hours of August 30, 1958, the defendant was driving in a borrowed automobile about the city of Klamath Falls. With him in the car were: Phyllis Mae Hood, Patsy Hoover, Randolph Tupper and Irwin Weiser. The defendant was behind the wheel, Patsy Hoover was in the front seat next to him, and either Tupper or Weiser (there being some dispute in the testimony) was seated next to Patsy Hoover. Phyllis Mae Hood and one of the men were seated in the rear seat. Weiser testified for the defense that the defendant, Patsy Hoover, Phyllis Hood and himself had been drinking heavily throughout the previous day.

Shortly before 2:30 a. m. Officer Floyd Pierce of the Klamath Falls police department observed the defendant's car double parked in front of Vern's Tavern and waved it on. As the car moved away two men who had been talking to its occupants ran to Pierce and told him that the defendant had threatened them with a revolver. Pierce radioed for assistance and took off in pursuit of the automobile. Using his siren and lights he stopped the car in front of Basin Motors. Officers Olson and Chlopek soon afterwards appeared on the scene.

There is a substantial disagreement between the state's witnesses as to what happened next. According to Officer Olson, Pierce told the defendant that he had been accused of pointing a gun at some people uptown and asked, 'Where is the gun?' The defendant replied, so Olson swore, that he had no gun and Pierce then said, 'Well, I am placing you under arrest for pointing a gun at those two Mexicans up town.' But Pierce himself testified that no formal arrest was made. According to his story, he asked Hoover whether he was carrying a gun and received the reply that he was not. On cross-examination of Pierce, in answer to the question, 'But you didn't place anybody under arrest before you searched them in this case, did you?' his answer was, 'Not that I can remember.'

Following the brief colloquy between Pierce and the defendant everyone was asked to get out of the automobile. The men did so but Mrs. Hoover remained seated in front and Mrs. Hood in back. Pierce searched the defendant's person and found nothing. Mrs. Hood then beckoned Pierce to step over to the rear window and whispered to him that Mr. Hoover was sitting on the gun. Pierce and Mrs. Hood both testified to this conversation but Officer Olson did not happen to hear it. Pierce thereupon went to the driver's side of the car. The door was open and he flashed his light on Mrs. Hoover and the car seat. Observing the butt end of a revolver protruding from under Mrs. Hoover's body he moved around to the other side of the car and seized the gun, either by forcibly lifting Mrs. Hoover slightly or pushing her over.

When he had thus obtained the gun Officer Pierce asked the defendant why he 'pulled' it and the defendant, according to Pierce's testimony, replied that 'no damned Mexicans were going to pull a flip blade knife on him.' Officer Olson also testified that the defendant came up to him and asked why he was being arrested, saying, 'No one is going to pull a knife on me.' The defendant was then taken to the police station. According to Pierce, the whole sequence of events in front of Basin Motors consumed but two or three minutes.

The entire evidence as to the defendant's possession of the revolver consists of his own admissions to Pierce and Olson and the testimony of Mrs. Hood. She testified that shortly before the car was halted in front of Basin Motors the defendant asked Mrs. Hoover 'what she could do with the gun or where she could hide it, and she told him to give it to her and she would sit on it.' It should be observed that Mrs. Hood, like the defendant, is a convict, having on a past occasion been sentenced to three years in the Oregon State Penitentiary for the crime of assault. The two individuals allegedly threatened by the defendant did not testify.

The defendant made a timely motion for suppression and return of the evidence on the ground that it was obtained by an illegal search and seizure. The motion was denied after a hearing. At the trial the revolver and holster taken from the car were introduced as the state's exhibit 'A.'

We will now consider the first and sixth assignments of error which are directed at the denial of the defendant's motion for suppression of the evidence pertaining to the weapon. The crucial issue which they submit is whether the search which produced the weapon was or was not lawful. Since we will hold that it was lawful, it will be unnecessary to determine whether evidence obtained by an unlawful search is admissible in a subsequent criminal prosecution of the party whose rights were violated in the search. The federal practice is to deny the use of such evidence. State v. Laundy, 1922, 103 Or. 443, 204 P. 958, 975, 206 P. 290, declared:

'* * * This rule of practice sanctioned by the Supreme Court of the United States ought, for the same reasons which recommended it to that court, be adopted and followed by the courts of this state. * * *'

But there, as here, it was not necessary to reach the question. We have never been confronted with a case which has squarely demanded a decision to accept or reject the dictum of the Laundy case.

The defendant challenges the search and seizure as a violation of both the United States Constitution, Amendment IV, and of the Oregon Constitution, Article I, section 9. It is settled that the due process clause of the Fourteenth Amendment does not in the ordinary case require state courts to exclude evidence obtained by means that constitute an unlawful search and seizure. Wolf v. People of State of Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. The defendant must therefore rely on the guarantees furnished by state law. The Oregon Constitution, Article I section 9, provides:

'No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * *.'

This court has from time to time expressed itself as more willing to sanction searches of automobiles than of other types of property. State v. Duffy, 1931, 135 Or. 290, 295 P. 953, citing Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; State v. De Ford, 1926, 120 Or. 444, 250 P. 220.

We note that the defendant was driving a borrowed car. However, we think that a bailee has an interest of sufficient substance to fall within the constitutional protection. Cf. Blok v. United States, D.C.Mun.App., 70 A.2d 55, affirmed United States v. Blok, 1951, 88 U.S.App.D.C. 326, 188 F.2d 1019; Klee v. United States, 9 Cir., 1931, 53 F.2d 58; Shepherd v. State, 1923, 200 Ind. 405, 164 N.E. 276; Davis v. State, 1926, 144 Miss. 551, 110 So. 447. The circumstances of the bailment are not set out with clarity in the evidence. One might infer that the automobile was loaned to the defendant alone or to the group as a whole. But even if the automobile was loaned to the entire party the defendant's interest was not so tenuous as to debar him from asserting his constitutional right against unlawful search. In re Subpoena Duces Tecum, D.C.N.D.Cal.S.D.1948, 81 F.Supp. 418.

The revolver was concealed by the device of having Mrs. Hoover sit on it. Thus, we might easily dispose of the case by ruling that the search, if in fact unlawful, was a search of Mrs. Hoover's person and not of the automobile. Were this the case it would be her rights that were violated and the defendant would have no standing to make a complaint. State v. Laundy, supra. See also Kwong How v. United States, 9 Cir., 1934, 71 F.2d 71; United States v. Vlahos, D.C.Or.1937, 19 F.Supp. 166. However, since the revolver was lying on the car seat we think that the search was equally a search of the car and of Mrs. Hoover. Neither party has raised the line of argument we have just suggested, and we will treat the search as of the automobile alone.

The state's argument in support of the search and seizure is two-fold. First, it maintains that a lawful arrest preceded the search and that the search and seizure, as incidents of the arrest, were lawful. But the argument continues: even assuming that the search and seizure preceded the arrest, they were so closely related in time to the arrest and so circumstanced as to be reasonable, and hence subject to no constitutional infirmity. We agree with both of these contentions.

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