State v. O'Keefe, s. 78-1066

• Decision Date: 18 June 1979
• Docket Number: Nos. 78-1066,78-1204,78-1203,78-1507,78-1508,78-1509 and 78-1510,s. 78-1066
• Citation: 40 Or.App. 685,596 P.2d 987
• Parties: STATE of Oregon, Respondent, v. Jeffrey Joseph O'KEEFE, Appellant. ; CA 11744 to CA 11750.
• Court: Oregon Court of Appeals

Page 987

596 P.2d 987

40 Or.App. 685

STATE of Oregon, Respondent, v. Jeffrey Joseph O'KEEFE, Appellant.

Nos. 78-1066, 78-1203, 78-1204, 78-1507, 78-1508, 78-1509

and 78-1510; CA 11744 to CA 11750.

Court of Appeals of Oregon.

Argued and Submitted April 19, 1979.

Decided June 18, 1979.

James E. Mountain, Jr., Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Catherine Allan, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C. J., and THORNTON, BUTTLER and JOSEPH, JJ.

JOSEPH, Judge.

Defendant appeals the judgments on his convictions of criminal activity in drugs (former ORS 167.207), two counts of robbery in the first degree (ORS 164.415), three counts of burglary in the first degree (ORS 164.225) and burglary in the second degree (ORS 164.215). The charges were tried to the court on stipulated facts after the denial of defendant's motion to suppress statements he had made while in custody and evidence seized from his car and house. Defendant raises six assignments of error.

The Facts

The evidence adduced at the hearing on the motion to suppress was conflicting in several material respects. Under Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968), and State v. Warner, 284 Or. 133, 585 P.2d 674 (1978), we accept a trial court's findings of "what actually transpired" ¹ where there is some evidence to support them and we resolve any other conflicts with respect to such "historical facts" ² in the manner which supports the court's ruling. Applying those principles, the facts are as follows:

On February 12, 1978, at 12:25 a. m., Officer Kearns saw an automobile in the parking lot of a hardware store in Springfield. He noted that the car was similar to one reported to have been involved in some recent "incidents" in the area. Kearns was responding to another call, so he radioed the dispatcher and asked that another officer be sent to investigate. No other officer was available. Four minutes later, Kearns was advised by radio that a burglar alarm had been set off at the hardware store. He went to the store and found that a glass door and a glass gun case inside the store had been broken and several handguns had been taken.

At approximately 12:30 a. m., another patrol officer, Sundby, received a report of Kearns' description of the car. About three hours later he received a report of a robbery at a variety store in Eugene and a description of a suspect: six feet one or two inches tall, of medium build with straight, shoulder length brown hair, wearing blue jeans, a blue ski cap and "mirror type" sunglasses. No mention was made of a car.

At 3:50 a. m., Sundby saw a car the same color and make as the one Kearns had described. The car was speeding down a Springfield street. It had no license plate light. The driver made an improper turn. Sundby stopped the car. As he approached the driver (defendant), he saw two blue ski caps and a pair of sunglasses in the back seat and noted that the driver fit the description of the variety store robbery suspect. He detected a strong odor of alcohol on defendant's breath and saw that his balance was impaired. He frisked defendant, handcuffed him and placed him in his patrol car. At some point Sundby noticed that one of the low-beam headlights on the car was burned out, as had been reported by Kearns. The victim of the robbery was brought to the arrest scene. He was unable to make a positive identification of defendant as the robber, but he did identify the ski caps and sunglasses as similar to those the robber had worn.

Defendant was told that he was under arrest for driving under the influence of intoxicants, defective equipment and having no Oregon driver's license. He was taken to the city jail at about 4:45 a. m. Officer Sundby "offered" defendant a breathalyzer test, but he refused. It was Sundby's opinion that defendant was still under the influence at that time. Defendant was placed in an interview room. Officer King tried to get booking information from him and also concluded that defendant was under the influence. Defendant was belligerent toward King and said he did not want to talk. When King said he needed defendant's name and the place and date of his birth, defendant told him he was from California and worked in a mill there. Then defendant got nasty again and said, "I'm not telling you shit." King left the room. He had asked no questions about the crimes of which defendant was suspected. At no time did defendant request an attorney.

Meanwhile, Sergeant Smith, who had been at the scene of the arrest and had subsequently consulted with a deputy district attorney, returned to the arrest scene. He seized the ski cap and the sunglasses and also a crowbar which was in plain view in defendant's car. He searched the car, found and seized a revolver (which was then confirmed to have come from the hardware store) and a beer bottle of the same brand as that reportedly taken in the variety store robbery. After the search, the car was impounded.

When Smith returned to the jail, he tried to talk to defendant to assess his condition. He asked defendant where and with whom he lived. Defendant told Smith to "go get fucked." The state conceded that was an adequate invocation of defendant's right to remain silent. Smith concluded that defendant was intoxicated and that further questioning would be futile, so he left. Again defendant did not request an attorney.

The booking process was completed. When officers took defendant's palm print, he said "It's a clean print, I always wore gloves." Defendant asked to make a phone call and was allowed to do so.

Sometime between 4:30 and 5:30 a. m., several police officers were sent to keep an eye on defendant's residence. A while later they were directed to "secure" the residence until a search warrant could be executed. At approximately 7:41 a. m., Kearns and three other officers knocked on the door and were allowed in. They walked through the house, gathered all the occupants in the living room and kept them there until the warrant arrived. (The episode is described more fully in State v. Ward, 37 Or.App. 591, 588 P.2d 72 (1978); opinion withdrawn and conviction affirmed, 38 Or.App. 425, 590 P.2d 296 (1979). Ward was an occupant of the house who was later arrested for being an ex-convict in possession of a concealable firearm.) The securing officers reported that several Budweiser beer bottles the brand reportedly taken from the variety store were scattered about the house. A warrant was issued for a search of the house. Included in the supporting affidavit was the reported observation of the beer bottles. The officers found and seized several incriminating items from the house.

At approximately 8:00 that evening, defendant was taken by Sergeant Smith from his cell to an office. Smith advised him of his Miranda rights, and defendant said he understood them. He appeared coherent and was no longer under the influence. He conceded at the hearing that he had understood his rights. Smith told defendant of the incriminating evidence that had been found in his car and house. He also told defendant that Jeffrey Ward had been arrested. Defendant then confessed to several crimes and repeated the confessions on tape for an officer named Ashbridge. At no time did defendant ask for an attorney or attempt to cut off the questioning.

In-Custody Statements

Defendant argues that the court erred in refusing to suppress the statements made at the jail on the evening of February 12 in response to questioning by Smith and Ashbridge. He relies primarily on State v. Rodriguez, 37 Or.App. 355, 587 P.2d 487 (1978), Rev. den. (1979). The facts in that case were as follows:

"When defendant was arrested, he was read his Miranda rights and placed in the officer's patrol car. In coarse but clear terms he invoked his right to remain silent. At no time did he request an attorney. The officer attempted several times to obtain from him his name, address and date of birth, but defendant vehemently refused to answer any questions. When they arrived at the booking facility, approximately three hours after the arrest, the officer again asked defendant for his name and address, which were needed to fill out a 'custody report.' Defendant did not answer. The officer told him that he would not be released until the report had been completed, but that if he did give the necessary information he would be released on bail or on his own recognizance. Defendant then gave his name and address. When the officer started to ask for physical characteristics, such as height, defendant remarked: 'You guys don't have a case anyway.' The officer replied, 'I think you're wrong' and proceeded to itemize all the evidence which he felt pointed to defendant as the burglar. He mentioned in particular that possible fingerprints had been found at the point of entry, but he did not mention that the burglar had entered through a bathroom window.

"At the hearing on the motion the officer summarized what occurred next:

" 'I said, "Hey, if your prints are in there, that's it, it's all over as far as I'm personally concerned," and he said, "Maybe I was in there before," and I said, "Well, maybe you were, maybe you were there yesterday. " I think I made a comment, "Well, you know, the fingerprints could be overladen," and something, and if the fingerprints were fresh, and that means he was there yesterday, and he said, "Maybe I was there yesterday," and he said "I went to the bathroom," or he said "Maybe I went to the bathroom. " And I said, "Why?" ' " (Footnote omitted.) 37 Or.App. at 357-58, 587 P.2d at 488-89.

We concluded "Defendant's stimulating remark to the officer was an irrelevant response to the officer's proper questions seeking routine identifying information; in context it seems to...