State v. Matthys
| Decision Date | 20 June 1991 |
| Citation | 106 Or.App. 276,808 P.2d 94 |
| Parties | STATE of Oregon, Appellant, v. Jason F.D. MATTHYS and Jeffrey Ryan Hocken, Respondents. 893791 and 893792; CA A63693. |
| Court | Oregon Court of Appeals |
Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Guy B. Greco, Newport, argued the cause and filed the brief for respondent Jason F. D. Matthys.
Steven R. Swenson, Newport, argued the cause for respondent Jeffrey Ryan Hocken. With him on the brief was Law Offices of Robert W. Connell, Newport.
Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.
DE MUNIZ, Judge.
Defendants were charged with burglary in the first degree, ORS 164.225, and theft in the first degree. ORS 164.055. The state appeals a pre-trial order suppressing evidence. We affirm.
At about 11:50 a.m. on October 4, 1989, Officer Teem was patrolling in a residential area of Newport. He saw an orange Camaro parked off the roadway. No one was in or near the car. It had been backed into foot-high brush to the tree line at a point where a trail leads up a hill to a residential neighborhood. The car had no license plate, but a temporary registration was on the rear window. The officer thought it was unusual to see an expensive new car parked like the Camaro was and got out to investigate. The car was locked, and the interior was clean, with the rear seats upright and nothing unusual in the rear hatchback area. There was a black duffel bag on the back seat.
Teem followed the trail through the brush behind the car. The trail traverses the hill into woods, leads over a foot bridge and continues up the hill to homes. Teem saw footprints leading away from the car and up the path, which he followed to the residences. After about 15 minutes, he returned to his patrol car and ran a check on the registration. While he was waiting for a response to his inquiry, a person came from a house almost directly across the road and explained that his wife had called him home from work, because she had seen the Camaro drive up with two young men in it. His wife had watched the men sit in the car, look around, park the car and follow the trail into the brush. She had never seen the car before.
Teem was concerned that the car might have been stolen or might be involved in a drug transaction or a daylight burglary. About one-half of the burglaries in Newport occur during daylight, because of the large number of vacation homes that are not occupied during the week. Teem waited around the area, but, when nothing further happened, he left.
At about 1:40 p.m., Teem was with Sergeant Huber when both heard a radio dispatch that a citizen had reported that two men had returned to the Camaro, put something into it and left again. Teem returned to the car and saw that the interior had been altered. The rear seats were folded down, and the hatchback area was covered with a luggage cover. Clothing was stuffed along the side to block the view into the cargo area. Teem could not see the duffel bag. He checked the trail again and found two large pins similar to cotter pins and two thinner pieces of metal about fourteen inches long with loops on their ends. He was certain that the pins had not been there earlier.
At 2:10 p.m., Teem was nearby in his patrol car when a truck driver told him that the two men were leaving. Teem immediately returned to the area. The Camaro was pulling onto the roadway, and Teem pulled up to it so that it could not leave. Huber arrived soon after. Matthys was driving the car, and Hocken was in the passenger seat. Teem asked for identification, and they complied. When Teem asked what they had been doing in the area, they said that they had just stopped to urinate in the shrubbery. By then, Teem had learned that the car was registered to a Mrs. Hocken. He did not know Matthys, but had been told by a fellow officer of Hocken's possible involvement in a theft. He had also been told that Hocken previously had tried to elude police by driving the Camaro at a high speed in order to avoid being cited for a traffic infraction. Teem almost immediately asked defendants to get out of the car, and they did.
Both Hocken and Matthys acted irritated at being stopped, and Teem described their attitude as "somewhat agitated" and "becoming more aggressive," as he continued to talk to them. Teem described defendants as "tense" and their comments as "terse." Defendants made no verbal threats.
Teem strongly believed that a crime, probably burglary, had occurred. He testified that, in an "arrest or unknown-encounter-type of situation" or in dealing with a person who may have just committed a crime, he had been taught that an officer is at risk of assault. He testified that all of the circumstances, including the location of the car, his inability to find the people connected with the car and the "proclivity" of Hocken in wanting to avoid the police, made him feel that there was a likelihood of a situation in which he would be jeopardized. As Teem talked to defendants, he patted them down. In Hocken's pockets, he found a flat-blade screwdriver, needle-nose pliers and a pair of athletic socks. Both defendants were wearing shoes and socks. On the basis of his 8 1/2 years of police experience and training, Teem knew that the tools could be used to commit burglaries or thefts from cars and also that burglars frequently wear socks over their hands to hide their fingerprints.
Hocken explained that he had the tools in his pocket because he had been working on speakers for his car. He did not answer the inquiry as to why he had the socks. In response to further questions, defendants contended that they had walked into the trees and had sat on the bridge for more than an hour and smoked cigarettes. Matthys said that he had returned to the car and put his sweatshirt in it. Teem had not seen defendants during his first investigation, nor had he seen cigarette butts. He had not heard voices. When defendants learned that Teem had been to the bridge, they said that they had wandered around the bridge. They denied seeing the metal pieces on the trail.
Teem and Huber believed that a burglary had taken place and that there would be evidence of burglary in the car. Huber went up the trail to try to find out where the burglary had occurred but was unable to do so, despite a perimeter search of residences for signs of entry. He returned, and the officers asked for consent to search the Camaro. Hocken refused. Teem then searched it and found, among other items, electronic equipment and a large backpack from which the metal pins appeared to have come and which had twigs and leaves in it consistent with the foliage on the trail. The equipment included a tape deck of the type found in home systems with wire connectors on it, a camcorder and a compact disc player. In the black duffel bag, Teem found stereo speakers that appeared to have been taken from a cabinet and which still had wood attached to them. Because the officers did not know who the victim was, they did not believe that they could charge defendants with a specific crime and did not arrest them at that time. The items were later determined to have been taken in a burglary in the area.
The trial court concluded that the stop of defendants' car, the frisk and the seizure of the tools were lawful. It held, however, that the officers did not have probable cause to search the car, because they had no information that a crime had been committed.
The trial court did not err in finding that the stop was valid. The officers could stop the car if there was a reasonable suspicion that a crime had been committed. ORS 131.615; State v. Valdez, 277 Or. 621, 561 P.2d 1006 (1977). The Camaro had been parked for over two hours in an unusual location with no one around. Nearby residents had reported that the two men had at first sat looking over the neighborhood and had later brought something to the car and left it. Teem found metal pins on the ground in his second investigation, supporting a belief that something had been carried down the hill to the car from the direction of the residential area. The interior of the Camaro had been altered between Teem's two investigations, and care had been taken to prevent a view into the cargo area. Those are articulable facts that provide a basis for the officers reasonably to suspect that the two men had "cased" the neighborhood, had left the car at a distance, but accessible to residences, and then had committed a burglary and hidden whatever they had stolen in the car.
However, the trial court erred in holding that the frisk...
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...articulate particularized facts creating a reasonable suspicion that the stopped person poses an immediate threat. State v. Matthys, 106 Or.App. 276, 282, 808 P.2d 94 (1990), rev. den. 311 Or. 433, 812 P.2d 828 At the suppression hearing, Officer Ludwig identified such particularized facts.......
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