State v. Krogness

Decision Date31 December 1963
Citation238 Or. 135,388 P.2d 120
PartiesThe STATE of Oregon, Respondent, v. Robert Lewis KROGNESS, Neil H. Hart, and Thomas Edgar Russell, Appellants.
CourtOregon Supreme Court

Howard R. Lonergan, Portland, argued the cause for appellants. With him on the briefs were John H. Kottkamp, Pendleton, and A. I. Bernstein, Portland.

Richard G. Coursen, Dist. Atty., Pendleton, argued the cause and filed a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

GOODWIN, Justice.

Robert Krogness, Neil Hart and Thomas Russell were convicted of a burglary committed in Pendleton, Oregon. They appeal.

The only question before the court is whether certain evidence was illegally seized. The questioned exhibits are burglars' tools and the loot from the burglary. They were found in the automobile in which the three defendants were riding. The automobile was stopped for a traffic violation. The evidence was taken in a search which followed. Timely motion was made to suppress the evidence.

The state argues that the illegality, if any, of the seizure cannot be a ground for suppressing the evidence in an Oregon court because the evidence was seized by police officers of the state of Washington. While this argument might have required discussion in former times (see State of Oregon v. Olsen, 212 Or. 191, 317 P.2d 938 (1957)), the fruits of illegal police conduct may no longer be used as evidence in state courts. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961). Such evidence is inadmissible whether seized by Oregon officers or by police of another jurisdiction. Cf. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 1453, 4 L.Ed.2d 1669 (1960). If the evidence was the fruit of illegal government action, it was error not to suppress it. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

There is no claim in this case that the officers had a search warrant. Without a warrant, there can be no search or seizure, except for such reasonable search as may be an incident of a lawful arrest. State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962).

In order to decide whether the trial court properly received the challenged exhibits in evidence, it is necessary to examine in some detail the testimony concerning the arrest of the defendants. There was some conflict in the testimony, but there was evidence from which the trial court could have determined the facts to be substantially as follows:

Sergeant Frank Chase of the King County, Washington, sheriff's patrol observed an automobile pass through a marked school crosswalk at a speed of 36 miles per hour during school hours. The maximum speed permitted at that time and place was 20 miles per hour. RCWA 46.48.023. Officer Chase stopped the car. The driver got out of the stopped car and walked back toward the police car. Officer Chase recognized the driver as Neil Hart and greeted him by name. (There was other evidence in the case to the effect that Hart had a police record known to Officer Chase and at least one minor conviction in Seattle.)

The officer immediately by radio informed his headquarters that he had stopped Hart and two other subjects for a traffic violation. Officer Chase told Hart to sit beside him in the police car. He asked Hart who his companions were. Officer Chase then left Hart sitting in the police car and approached Hart's car to verify the identities of Krogness and Russell. At that time, Officer Chase saw on the back seat of Hart's car a military-type rifle with a telescope sight. He did not know whether or not the weapon was loaded. There is no record that he inquired concerning the rifle.

About the time Officer Chase saw the rifle, other police cars arrived on the scene. Krogness and Russell were asked to get out of Hart's car and to sit in the other police cars. For all practical purposes, Krogness and Russell as well as Hart were under arrest from that moment, if they had not been before. See Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); and State v. Christensen, 151 Or. 529, 533-534, 51 P.2d 835 (1935), where it is said that the mere stopping of the motorist and placing him under the officer's direction constituted an arrest. See generally on the law of arrest, Remington, The Law Relating to 'On the Street' Detention, Questioning and Frisking of Suspected Persons and Police Arrest Privileges in General, in Police Power and Individual Freedom 15-18 (Sowle ed. 1962). Officer Chase asked Hart for the keys to the luggage compartment of the latter's car. Hart complied. There is no serious claim that Hart did so voluntarily.

In the luggage compartment the officer found a sack which contained some 200 pounds of coins, mostly in rolls bearing the name of a Pendleton bank. He also observed certain tools. At this point, Officer Chase apparently yielded the initiative in the proceedings to Detective Ronald Moore, who had arrived on the scene. Officer Moore supervised the search of all three occupants of the Hart automobile. The officers found about $4,500 in money, coin and paper, including the rolled and loose coins in the luggage compartment. Two pistols also were found, concealed about the interior of the automobile.

Officer Chase said that detention pending bail is discretionary (RCWA 46.64.015), but is rarely used, even in connection with out-of-state motorists. (The Hart automobile carried Montana license plates.) All three defendants were willing and able to post bail. They were, however, taken to jail.

On cross examination Officer Chase explained why the other police cars were called:

'A I effected the arrest, then called a--effected the stop; I advised radio that I was stopping a car at a certain location.

'Q And within two or three minutes there were three cars there in addition to your car, is that not true?

'A Yes, sir.

'Q And was that because it was Neil Hart?

'A That would have had some bearing on it, maybe.

'Q Well, then, what was the purpose of the other three cars, or is it customary in King County to ask for assistance if you stop someone for a traffic violation at 36 miles per hour in a 20-mile zone?

'A If the defendant had been the same defendant, the request would have been made--the defendant Hart.'

Officer Chase, on direct examination, explained the arrest of Krogness and Russell as follows:

'Q What did you do then?

'A I then walked up to the car and making sure that I would recognize either one or both of the defendants, I observed a hunting rifle in the rear seat.

* * *

* * *

'Q Now, Sergeant Chase, after you observed that, what, if anything, did you then do?

'A I advised Mr. Hart that we were going to search his car at that time. Search was made, after seeing the rifle, with the anticipation of a game violation being committed.'

On cross examination he gave this account:

'Q Did you take Krogness and Russell out of that car?

'A I told Krogness and Russell to sit in two separate patrol cars, yes.

'Q Then you placed them in custody at that point?

'A Yes.

'Q For what crime?

'A Aiding and abetting.

'Q Aiding and abetting what?

'A A traffic violation.

'Q The aiding and abetting of speeding?

'A Yes.

* * *

* * *

'Q Now, you went into the suitcase in the trunk of the car?

'A Yes. The suitcase was opened.

'Q That looking for a game bird or a piece of deer?

'A Some game violation.'

The trial court did not set forth specific findings of fact upon which its rulings were predicated. See State v. Chinn, supra, and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Adequate findings are useful whenever constitutional issues are raised. Here the trial court published a written opinion in ruling on the motion to suppress. The opinion can fairly be construed as a finding that the officer made a lawful arrest for a traffic violation and thereafter searched the automobile in the reasonable belief that there had been a recent violation of the Washington game laws.

Whether we take our standards from the federal Fourth Amendment (through the Fourteenth) or from our own constitution's Article I, § 9, both guarantee the people the right to be secure in thier persons, houses, papers and effects. The basic principle is clear.

The principle has proved difficult of application. Because of the mobility of criminals and of their pursuers, and for other reasons, the search warant is not commonly employed. See Einhorn, The Exclusionary Rule in Operation--A Comparison of Illinois, California and Federal Law, 50 J.Crim.L., C. & P.S. 144, 151 (1959). Accordingly, most searches that are challenged in court are those which have at least a colorable foundation in an arrest of some kind. Liquor law enforcement historically produced comprehensive searches as 'incidents' of traffic arrests. See, e. g., State v. Christensen, supra; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Husty v. United States, 282 U.S. 694, 701, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407 (1931); Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925); Marsh v. United States, 29 F.2d 172 (2d Cir. 1928). It may be questioned whether everything said in these cases would be given full effect today. If the arrest is illegal, then it can provide no legitimate foundation for a search. See People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658 (1963).

Setting to one side cases like State v. Hoover, 219 Or. 288, 347 P.2d 69, 89 A.L.R.2d 695 (1959), in which there is a lawful arrest for a felony or dangerous misdemeanor and the accompanying search produces evidence of other crimes, we have before us the more common situation in which a minor traffic violation has called the attention of the police to a felon who might...

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  • State v. Flores
    • United States
    • Oregon Court of Appeals
    • October 30, 1984
    ...the meaning of the Oregon Constitution, simply decided cases under the federal constitution. In State v. Chinn, supra; State v. Krogness, 238 Or. 135, 388 P.2d 120, cert. den. 377 U.S. 992, 84 S.Ct. 1919, 12 L.Ed.2d 1045 (1964), and State v. Elkins, supra, the court relied primarily on stat......
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    ... ... O'Neal, 251 Or. 163, 444 P.2d 951 (1968); State v. Krogness, 238 Or. 135, 144, 388 P.2d 120 (1963), cert. den. 377 U.S. 992, 84 S.Ct. 1919, 12 L.Ed.2d 1045 (1964); and State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962). 293 Or. at 759, 653 P.2d 942. Testing is a form of search. The state does not contend in this case that the arresting officer seized the ... ...
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1 books & journal articles
  • The smell of Herring: a critique of the Supreme Court's latest assault on the exclusionary rule.
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    • Journal of Criminal Law and Criminology Vol. 99 No. 3, June 2009
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