State v. McCoy

• Citation: 437 P.2d 734,249 Or. 160
• Parties: STATE of Oregon, Respondent, v. Jack Dwight McCOY, Appellant.
• Decision Date: 21 February 1968
• Court: Supreme Court of Oregon

Page 734

437 P.2d 734

249 Or. 160

STATE of Oregon, Respondent, v. Jack Dwight McCOY, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 8, 1967.

Decided Feb. 21, 1968.

George A. Haslett, Jr., Portland, argued the cause and filed a brief for appellant.

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

Before McALLISTER, P.J., and SLOAN, O'CONNELL, GOODWIN, HOLMAN, LUSK and WOODRICH, JJ.

LUSK, Justice.

Defendant has appealed from a conviction of the crime of rape. The sole question is whether the trial court erred in denying defendant's motion to suppress incriminating evidence found by the police in defendant's automobile. Search of the automobile and seizure of the evidence were without a warrant and, defendant contends, violated his rights under the Fourth Amendment.

The prosecutrix is a Cuban refugee who was living in Portland at the time of the alleged crime. According to her testimony the defendant, whom she had never seen before, came to her apartment, lured her into his automobile with a trumped-up story that he was a doctor and she was required to submit to a medical examination, and drove her out into the country and there raped her in the automobile. Defendant, as a witness in his own behalf, admitted sexual intercourse with the woman but testified it was with her consent.

On the day of the occurrence the prosecutrix complained to the Portland police and gave them a description of the automobile and its license number. With this information the police were able to identify the defendant as the owner of the automobile and locate his residence and business address. They secured a warrant for his arrest on a charge of rape and arrested him in his shop in Portland shortly after 5:30 p.m. Defendant's automobile was at that time parked in the street about ten feet from the shop. The officers placed the defendant in a police car, which was parked directly behind the defendant's car, and in his presence radioed for a tow truck. The officers arrived with the prisoner at the police station about 6:30 p.m. and the defendant's car arrived at the police garage at 6:35 p.m. and the search of the car commenced approximately at that time. The incriminating evidence uncovered by the search consisted of human hair, like that of the prosecutrix, found in vacuum sweepings, and a rag with semen on it which the prosecutrix testified the defendant used to wipe himself with after he raped her.

At the hearing on the motion to suppress one of the officers testified that their chief interest was in fingerprints, that it was raining that evening and the car was taken to the garage to place it 'out of the weather, the elements,' and that they seized the car because 'I felt this was an instrument of the crime,' and '(t)owed it in as evidence.'

It is now firmly established that in determining the validity of a warrantless search '(t)he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable': United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653, 660 (1950). See, also, Cooper v. State of California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); State v. Ramon, Or., 432 P.2d 507 (1967); State v. Frazier, Or., 418 P.2d 841 (1966). The 'standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application': Ker v. State of California, 374 U.S. 23, 33, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963); whether a search is reasonable depends upon the facts and circumstances of each case: Cooper v. California, supra, 386 U.S. at 59, 87 S.Ct. 788; Harris v. United States, 331 U.S. 145, 150, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931).

Contrary to earlier rulings, it is now held that mere 'evidentiary materials,' as distinguished from the fruits of, or implements used to commit, a crime are among the objects for which a search may be made: Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

We deal here with the search of an automobile. In the Cooper case the court said that 'searches of cars that are constantly movable may make the search of a car without a warrant a reasonable one although the result might be the opposite in the search of a home, a store, or other fixed piece of property.' 386 U.S. at 59, 87 S.Ct. at 790. As Chief Justice Weintraub, speaking for the court, said in State v. Boykins, 50 N.J. 73, 232 A.2d 141, 145 (1967): 'No discussion of crime can ignore the automobile, or the fact that the incidence of crime is hinged directly to the amount of privacy we accord it.'

It has long been recognized that a warrantless search may be made as an incident of a lawful arrest. State v. Chinn, 231 Or. 259, 266, 373 P.2d 392 (1962), and cases there cited. See Annotation, 4 L.Ed.2d 668. Traditionally, such a search has been said to be necessary in order to secure the safety of the police and the custody of the prisoner, as well as to enable the police to gather the fruits and implements of the crime and to prevent the destruction of evidence. State v. Chinn, supra, 231 Or. at 267, 373 P.2d 392. In the recent case of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), the court said:

'The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime--things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control.' 376 U.S. at 367, 84 S.Ct. at 883.

It will be noticed that the court spoke of 'contemporaneous searches.' Similarly, this court in the Chinn case said that the search must be 'close to the arrest both in time and in space, viz., in the physical area searched.' 231 Or. at 267, 373 P.2d at 396.

Defendant relies upon the Preston case. This was a prosecution for conspiracy to rob a bank. Preston and two companions were arrested by the police in a parked automobile at three o'clock in the morning after the police had received a telephone complaint that they had been there since ten o'clock the evening before. They were arrested for vagrancy, searched for weapons and taken to the police station. The car, which had not been searched before, was taken to a garage where it was searched after the men had been booked at the station. Two loaded revolvers and other articles of an incriminating character were found in the car and admitted in evidence on the trial over timely objections of the petitioner.

In an opinion by Mr. Justice Black a unanimous court said that the justifications, above referred to, for a warrantless search were absent where a search is remote in time or place from the arrest, and held that 'the search was too remote in time or place to have been made as incidental to the arrest and * * * therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment * * *.' 376 U.S. at 368, 84 S.Ct. at 884.

The impact of Preston must be considered in the light of the decision three years later in Cooper v. California, supra. Again the opinion was written by Mr. Justice Black, but the court divided five to four.

Cooper was prosecuted in a California state court for selling heroin. A statute of California provided that any officer making an arrest for narcotics violation shall seize and deliver to the State Division of Narcotic Enforcement any vehicle used to transport or facilitate the possession of narcotics 'to be held as evidence until a forfeiture has been declared or a release ordered.' The police, having probable cause to believe that defendant's automobile was being so used, impounded it upon his arrest, and a week later searched it without a warrant. Incriminating evidence was found. The validity of the search and seizure was sustained.

The prosecution conceded, and the court appears to have accepted the concession, that the search was not incidental to an arrest. The Supreme Court agreed with the lower court that "lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it." But the court held that 'the reason for and nature of the custody may constitutionally justify the search' and distinguished Preston because the arrest there was for vagrancy and the arresting officers took the car simply because they did not wish to leave it on the street. The court said: 'The fact that the police had custody of Preston's car was totally unrelated to the vagrancy charge for which they arrested him. So was their subsequent search of the car.' On the other hand, in the case then before the court, the officers seized Cooper's car because they were required to do so by state law and seized it because of the crime for which they arrested Cooper, and the subsequent search was 'closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained.' 386 U.S. at 61, 87 S.Ct. at 791.

Mr. Justice Douglas, dissenting, argued that the majority either had overruled Preston, sub silentio, or that the decision was 'a watered-down version' of the Fourteenth Amendment because the case concerned the application of the Bill of Rights to the states.

Viewed in the light of Cooper, Preston does not support the defendant's position for the central facts in Preston were that the defendant was arrested for vagrancy and both the purpose of the search and the incriminatory evidence found and seized and introduced in evidence were totally unrelated to that offense, as was the purpose of the officers in towing the car away. On the other...