State v. McMurphy

• Decision Date: 22 September 1980
• Docket Number: No. C,C
• Parties: STATE of Oregon, Respondent, v. Larry Byron McMURPHY, Appellant. 79-02-30644; CA 15503.
• Court: Oregon Court of Appeals

Page 1203

616 P.2d 1203

48 Or.App. 327

STATE of Oregon, Respondent, v. Larry Byron McMURPHY, Appellant.

No. C 79-02-30644; CA 15503.

Court of Appeals of Oregon.

Argued and Submitted July 30, 1980.

Decided Sept. 22, 1980.

William Y. Sugahiro, Milwaukie, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James M. Brown, Atty. Gen., Walter L. Barrie, Sol. Gen., and Robert C. Cannon, Asst. Atty. Gen., Salem.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

ROBERTS, Judge.

Defendant seeks reversal of his convictions for possession of a controlled substance (ORS 475.992), delivery of a controlled substance (ORS 475.992) and ex-convict in possession of a firearm (ORS 166.270). Defendant contends that the trial court erred in denying his motion to suppress evidence seized from the residence where he was arrested. We agree and reverse and remand.

On the evening of February 24, 1979, an undercover narcotics officer of the Portland Police Bureau met Jeffrey Woodward and Gary Gast at S.E. 39th and Holgate Streets in Portland to work out the details of a cocaine transaction. After some discussion, it became apparent that Woodward did not have the cocaine with him. The officer gave Woodward a quantity of marked bills and waited with Gast while Woodward went in a car driven by Michael Johnson to purchase one ounce of cocaine. The officer understood that he was to purchase five ounces in five separate transactions.

Approximately 45 minutes later, Woodward and Johnson returned. Woodward got into the car where Gast and the officer were waiting and Johnson went into a phone booth where the officer could see him making a call. The officer testified that he did not know who was being called.

The officer examined the substance tendered, and, satisfied that it was cocaine, gave a prearranged signal through a body microphone to officers in the immediate area who closed in and arrested the three suspects.

After the arrest, a second officer was approached by Johnson, who asked what he could do to "get out from underneath this beef." The officer interpreted this to mean that Johnson wished to know what he could do to receive favorable treatment. When asked what he had in mind, Johnson said he could take the officer to a place where the money was located, along with more cocaine and a person with a gun. Johnson was able to name the person as Larry McMurphy. He was unable to give an exact address, but stated that the residence was on Southeast 113th Street, north of Holgate and was on the left as one traveled north. He stated that there was a small sports car in the driveway. An agreement was reached whereby Johnson was to direct the officer to the house in exchange for not being arrested.

Johnson then went with the officer in his car and specifically pointed out the house. There was a sports car parked in front. The officer decided to make an immediate entry because he understood that the purchase was to be of five ounces and, since only one had changed hands, he feared the occupants of the residence would become apprehensive when Woodward did not return. He was further concerned by Johnson's phone call because he had no idea who Johnson called.

Five or six officers who were in the area were requested to assist with the entry. The rear of the residence was secured and the officer went to the front door and knocked. A woman answered and the officer announced his identity and entered with drawn revolver along with two other officers.

The defendant and a woman were placed under arrest. A search of defendant's person revealed the marked bills. A quantity of cocaine in plain view was seized from an open shoulder bag where an officer had noticed it. A further search of the bag revealed more cocaine and a revolver.

Defendant was convicted on the subject charges following the denial of his motion to suppress. He contends that the officers lacked probable cause to make the entry because the informant was not shown to be reliable and because the facts did not provide a nexus between the delivery of the substance at S.E. 39th and Hogate and the defendant located at 4063 S.E. 113th Avenue. He further contends that, even if there were probable cause to believe that an occupant was connected with the crime, there were no exigent circumstances justifying the entry.

The state, not having raised the issue at the suppression hearing, argues for the first time here that defendant lacks "standing" to challenge the validity of the search because he has not asserted any possessory interest in the cocaine, money, or firearm seized. In support of this argument, the state cites Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), State v. Emery, 41 Or.App. 35, 597 P.2d 375 (1979), and United States v. Salvucci, --- U.S. ----, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

In Rakas, the Supreme Court limited its former holding in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), wherein it had held that anyone "legitimately on the premises" could rely on the exclusionary rule. Rakas required that the disputed search and seizure infringe upon an interest of defendant which the Fourth Amendment is designed to protect.

In United States v. Salvucci, supra, and Rawlings v. Kentucky, --- U.S. ----, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), the Supreme Court made clear that the automatic standing rule of Jones was overruled and replaced by a requirement that the court ask "not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched." 27 Cr.L.Rptr. at 3244.

Those cases, however, all involved situations where defendant's Fourth Amendment interest had been challenged below. Apart from a passing reference to the fact that the woman who answered the door was...