State v. Keith

• Decision Date: 05 March 1970
• Citation: 465 P.2d 724,90 Adv.Sh. 531,2 Or.App. 133
• Parties: STATE of Oregon, Respondent, v. Frank Marion KEITH, Appellant.
• Court: Oregon Court of Appeals

Page 724

465 P.2d 724

2 Or.App. 133

STATE of Oregon, Respondent, v. Frank Marion KEITH, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Nov. 18, 1969.

Decided March 5, 1970.

John D. Burns, Portland, argued the cause and filed the brief for appellant.

Jacob B. Tanzer, Solicitor Gen., Salem, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before SCHWAB, C.J., and LANGTRY, FOLEY and BRANCHFIELD, JJ.

SCHWAB, Chief Judge.

The defendant, Frank Keith, appeals from a judgment of conviction upon trial by jury of the crime of assult and robbery being armed with a dangerous weapon. The principal question presented on his appeal deals with the right of the police to search, without first obtaining a warrant, the interior of an automobile which had been seized by the police at the time they arrested the defendant.

Two Portland detectives, Vigna and Frostad, were on patrol on the evening of October 22, 1967. They had a report of an armed robbery of a grocery store on the preceding evening in which the two male robbers got away in a white or pink 1956 or 1957 Oldsmobile, License No. 1P10 _ _ (the last two digits were unknown). They also knew that the robbers, in the course of the getaway, had shot at a citizen who chased them and who got close enough to them to touch the Oldsmobile as the robbers drove off.

At about 11:45 p.m. on the night in question Detectives Vigna and Frostad saw a 1957 pink Oldsmobile, License No. 1P1056, parked, unoccupied, on downtown Broadway in Portland. Frostad called for information from a nearby telephone while Vigna remained near the vehicle. While Frostad was on the phone the theaters let out and three males and two females entered the vehicle. Frostad learned on the telephone that the automobile was registered to a George Caldwell and that there was no stolen vehicle report. He also learned, on a separate all after first contacting the people in the car, that the picture of a man named Keith (who later turned out to be the defendant in this case) had been chosen by the victim as a close likeness of one of the robbers and that this man, in the course of the robbery, had referred to his fellow robber as 'Irv.'

Frostad joined Vigna in approaching the driver, one Golden, and the occupants. They requested Golden's driver's license and asked the other occupants for identification. Keith showed a driver's license bearing his proper name and said that he owned the car and was buying it from the registered owner, George Caldwell, but could produce no bill-of-sale or receipt. One of the other occupants produced identification disclosing that his name was Irving Gaffield. The officers then requested the occupants of the vehicle to come to the police station to clear up the ownership of the automobile and all agreed to do so. As Vigna opened the door for the occupants a sawed-off shotgun was immediately apparent on the floor boards. At that point the five persons were placed under arrest for possession of a sawed-off shotgun. Later, the defendant Keith was booked for armed robbery and for being an ex-convict in possession of a firearm. The officers testified that because of the resistance they met in effectuating the arrest (one of the five ran away), because a crowd was gathering, because it was a rainy night, and because they hoped to dust the trunk of the automobile for the fingerprints of the witness who had touched the trunk while chasing the automobile after the robbery of the previous night, they seized the car and had it towed to the police station. After it was at the police station, and without first obtaining a search warrant, the police searched the vehicle and found two loaded revolvers under the front seat. This search took place about 45 minutes after the arrest. One of these revolvers was described during the course of trial as being similar to the one used in the robbery and was introduced into evidence after the defendant's timely motion to suppress it as the product of an illegal search and seizure was denied.

Defendant argues that the search which produced the revolver was improper because the search was not for evidence of the crime for which the defendant was arrested, viz., possession of a sawed-off shotgun. There is no merit to this argument.

State v. Cloman, 88 Or.Adv.Sh. 567, 456 P.2d 67 (1969), involved a situation in which the police announced to the defendant that they were arresting him on an 'after hours' charge when, in fact, they had probable cause to, and did, arrest him for possessing stolen wire. In that case the Supreme Court said at pp. 576--577, 456 P.2d at p. 72.

'* * * The officers' expressed cause for arresting the defendant was a violation of an 'after hours' city ordinance. We believe it reasonable to conclude that the officers gave this cause for arrest because of their uncertainty of the law of probable cause for arrest. We also believe it reasonable to conclude that the actual cause for which the officers arrested Cloman was some charge concerning the stolen wire. Under these circumstances, we find nothing to be served by holding the arrest invalid because the officers were uncertain about a problem which puzzles the courts. We hold that if the officers had probable cause to arrest, the arrest made is not rendered illegal because the officers expressed another and improper cause for arrest.'

Here, Officers Vigna and Frostad had overwhelming cause to arrest the defendant Keith and his partner Gaffield for the previous night's robbery and to seize the 1957 pink Oldsmobile, an instrumentality of the crime, as evidence. The fact that they were, in fact arresting them for this robbery as well as for possession of the sawed-off shotgun is demonstrated by their desire to check the trunk lid of the vehicle for fingerprints.

A more difficult problem is: Can the police search, without first obtaining a warrant, the interior of an automobile which is the instrumentality of a crime if prior to making the search the occupants have been removed and the automobile taken to a place where it is securely in the unchallenged dominion of the police before the search is made?

Art. I, § 9, Oregon Constitution, 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; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.'

The Fourth Amendment to the United States Constitution provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The amplification and the application of these constitutional provisions have consumed thousands of pages of appellate court opinions.

Professor LaFave in his article Search and Seizure: 'The Course of True Law * * * Has Not * * * Run Smooth,' points out:

'No area of the law has more bedeviled the judiciary, from the Justices of the Supreme Court down to the magistrate; 'reasonable men simply cannot agree on what is a reasonable search.' Appellate courts have been hampered by a lack of sufficient information on current law enforcement problems and practices from which realistic and effective rules of police conduct might be fashioned. Perhaps because of such limitations, the courts often have utilized doctrines of tort, property, and agency which are of questionable relevance in defining these rules. And constantly lurking in the background is the fact that when a search is found to be 'unreasonable' the consequence is suppression of probative evidence and, in many cases, acquittal or dismissal of a guilty defendant. 'Of all the two-faced problems in the law,' says Justice Traynor, 'there is none more tormenting' than this.' 255 Ill.L.Forum, 1966.

Much of the difficulty has developed from attempts by appellate courts to enunciate rules which would enable them unreasonable and thus to avoid accepting unreasonable and thus to avoid accepting the reality that the question of what is or is not reasonable, i.e., what constitutes 'probable cause,' 'almost has to be decided on an ad hoc basis because of the tremendous number of fact combinations possible.' State v. Cloman, supra, at 574, 456 P.2d at 71. ¹

The confused reasoning in many of the opinions prior to Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), is discussed in the dissenting opinions of Justices O'Connell and Holman in State v. McCoy, 249 Or. 160, 437 P.2d 734 (1968). Mr. Justice O'Connell's dissent at 180--181, 437 P.2d at 744, accurately prophesied what the Supreme Court of the United States held a year later in Chimel v. California, supra:

'* * * In some opinions the court sees the search warrant as a Sine qua non of a legal search unless there are circumstances which justify a search without it. In other opinions the court tests the validity of a search solely upon the basis of its 'reasonableness,' a test which is not related to the search warrant requirement and apparently to be applied as if the search warrant requirement did not exist.

'This inconsistency was spawned by United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), where the court held that a search could be reasonable even though it was practicable for the police to obtain a warrant. This left the test for the legality of searches and seizures at large without any standard for determining what was reasonable and wholly without regard to the need for the judicial scrutiny provided by a search warrant. Although the test for reasonableness of a search was thus separated from the...