State v. Miller

• Decision Date: 19 October 1981
• Docket Number: No. C,C
• Citation: 54 Or.App. 323,634 P.2d 1361
• Parties: STATE of Oregon, Respondent, v. Norman Elmer MILLER, Appellant. 80-04-31487; CA 18683.
• Court: Oregon Court of Appeals

Page 1361

634 P.2d 1361

54 Or.App. 323

STATE of Oregon, Respondent, v. Norman Elmer MILLER, Appellant.

No. C 80-04-31487; CA 18683.

Court of Appeals of Oregon, In Banc.

Argued and Submitted March 30, 1981.

Resubmitted In Banc Sept. 2, 1981.

Decided Oct. 19, 1981.

Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Norman Elmer Miller filed an appellant's supplemental brief pro se.

Rudolph S. Westerband, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

JOSEPH, Chief Judge.

Defendant was convicted on two counts of arson in the first degree and one count of criminal mischief in the first degree for bombing a public restroom. He appeals, assigning error to the trial court's failure to suppress evidence seized under a search warrant following his allegedly illegal arrest. He maintains that the arrest tainted the subsequent search warrant.

On April 22, 1980, the Portland Police Bureau received a phone call from a person claiming that he planned to detonate a bomb somewhere in downtown Portland the following day and would call again before exploding it. The call was traced to a phone booth on Southwest Third Avenue and Salmon Street. The police organized a squad to respond to any subsequent calls. They thought that the person might call from the same booth or another booth in the vicinity. Two plainclothes officers (Tersek and Braaten) were instructed to check the phone booths in that area, if a second call did come.

The following day, at 10:13 a. m., the person phoned again. The call lasted about four minutes. Immediately, members of the squad were notified, and a tracer was instituted, which revealed that the call was made from the same booth as the one the day before. Over the radio Tersek and Braaten received the information that a call had been received (but not that it was being traced) and proceeded south on Southwest Third Avenue toward Salmon. They saw no one in any phone booth along the route until they spotted defendant in a booth at Southwest Third Avenue and Taylor (one block north of Salmon) at approximately 10:23. The officers testified that defendant attracted their attention because he was the only person in a phone booth, and he was wearing both a dark raincoat and sunglasses on a sunny day. One officer felt defendant was watching them and attempting to move in the booth so the officers' view would be obscured by a telephone pole, but he could not be certain because of defendant's sunglasses.

Unknown to the officers at the time, another call had been made to the central office at 10:23. It lasted about a minute. About the same time the tracer report on the first call came through. Almost immediately, the police also received a tracer report that the second call came from Southwest Third Avenue and Taylor. The officer who took the calls understood, because of the rapid succession of events, that the second tracer report was a correction of the first. The confusion was not cleared up for several minutes. The radio officer did not relay the new information to the various police units in the field, but he did broadcast an alert that the bomb was in a public restroom in Lownsdale Square on Salmon Street between Third and Fourth Avenues.

At 10:26, by his watch, Tersek left the police car to follow the suspect on foot. He did not know of the tracer results. Just as he was leaving the vehicle, he heard the report of the bomb's location over the police radio. Defendant left the booth, removed his sunglasses and proceeded to walk, at first slowly, then at a fast pace, toward his car several blocks away. He crossed Second Avenue and Salmon, a block and a half from the location of the bomb, and Tersek observed him give a "hard look" in that direction. As defendant unlocked his car and opened it, Tersek placed a hand on his shoulder, identified himself as a police officer and, without allowing him to turn around, patted him down. At that point, Tersek testified, he observed in the car a pair of needle-nose pliers, a screwdriver and a wire with an alligator clip on the end. ¹ Tersek read defendant the Miranda rights and asked him to step over to the curb. Defendant indicated that he understood his rights; he did not ask the reason for his being stopped. When questioned, he gave his name and stated that he had made a phone call to a rock shop on Sandy Boulevard and that he had parked three blocks from the phone booth, because "I sometimes come down in this area to pick up whores."

At that point a second officer (Goodale) arrived and took over the investigation. Goodale was aware of the most recent phone call, which had been traced to the booth at Third Avenue and Taylor, and was informed of what Tersek had observed. At 10:33, the bomb exploded. According to Goodale, defendant's face turned ashen. The officers asked defendant for consent to a search of his car, but he refused. (The car was later searched at the scene under a search warrant.) Goodale double-checked the conflicting information on the phone traces and concluded that defendant was a prime suspect. Defendant was then handcuffed and taken to police headquarters.

At the suppression hearing, the district attorney stated:

"I would ask the Court to take judicial notice that the well, we have had testimony that the defendant was arrested at 10:30 a. m. on the 23rd of April. Is there any question about that, counsel?

"MR. RANSOM (defense counsel): No. We stipulate to that."

Both sides characterize this exchange as a stipulation that defendant was arrested at 10:30 a. m. For several reasons, we do not regard this stipulation as fixing a precise time of the arrest in the course of the total encounter, but only that at approximately this point, defendant was in fact arrested. First, there was no testimony by anyone that any particular event occurred at 10:30; indeed, there was a period of about seven minutes (10:26 to after 10:33) during which no time is assigned in the testimony to any occurrence. Second, there was no evidence that the watches of the various officers were synchronized or agreed with official time. The various times reported were not so certain as to enable the district attorney to establish precisely the time of defendant's arrest to the minute.

Defendant was not arrested (contrary to defendant's contention) upon the initial detention, but sometime after the arrival of Goodale. Tersek's original contact with defendant constituted a stop. ORS 131.605(5). Because of the nature of the crime of which defendant was suspected, ² he was entitled at that point to frisk defendant for weapons. ORS 131.625(1). Unlike the situation in State v. Groda, 285 Or. 321, 591 P.2d 1354 (1979), cited by defendant, Tersek had not searched defendant's person. In Groda the court determined that an arrest had occurred precisely because a search of defendant had been conducted which could only be justified as a search incident to arrest. 285 Or. at 325-26, 591 P.2d 1354. Although the fact that Miranda warnings were given almost immediately is relevant, that bears principally on the officer's subjective state of mind. Tersek's questions and conduct were consistent with the reasonable inquiry into suspicious circumstances authorized by ORS 131.615(3).

To justify the initial stop of defendant, Tersek must have had a reasonable, articulable basis under all the circumstances for suspecting defendant of a crime. ORS 131.615(1); 131.605(4). At the time of the stop, the following facts were the basis for Tersek's suspicion: a) a telephone call to police headquarters on April 22, 1980, claiming that the caller planned to detonate a bomb somewhere in downtown Portland the following day and that he would call again before detonating it; b) tracing of that call to a telephone booth at Southwest Third and Salmon; c) likelihood that the bomber might call again from the same area he telephoned from the previous day; d) defendant's somewhat peculiar attire and conduct in the phone booth; e) defendant being the only person using a phone in the vicinity; and f) the "hard look" by defendant toward the Lownsdale Park restroom, which was known by Tersek at the time he made the observation as the location of the bomb. As defendant points out, there are alternative innocent explanations for each of his actions which arguably militate against Tersek's conclusion. Nonetheless, the facts created a sufficient basis for a reasonable suspicion.

The patrol of the area was based on the speculation that the caller might call again from the same area he did before. The decision to pursue this possibility was presumably a product of collective police experience, even though there was no direct evidence to that effect. In any event, the speculation was not unreasonable, in view of the fact that the caller had used a public phone in that specific area. That the officers spotted defendant as much as nine minutes after the call on April 23 was placed may weaken the probability that he was the caller (because there was plenty of time to make the call and leave the area), but Tersek was not aware of the exact time the first call began or that it had terminated. He also did not know that there were two calls, the first of which had been made from a booth other than the one occupied by defendant, one block away. As far as he knew, the bomber might still be on the phone, possibly in a phone booth in the area.

Defendant's dress (arguably prudent attire for Oregon spring weather) and demeanor added little substance to Tersek's suspicion, other than to single out defendant as a person worthy of further observation. Similarly, that defendant's being the only person in a phone booth at that time might have been pure coincidence, given the time ...