State v. Peller, 34640

• Decision Date: 11 December 1978
• Docket Number: No. 34640,34640
• Citation: 587 P.2d 510,37 Or.App. 467
• Parties: STATE of Oregon, Appellant, v. Mark George Emil PELLER, Respondent. ; CA 11128.
• Court: Oregon Court of Appeals

Page 510

587 P.2d 510

37 Or.App. 467

STATE of Oregon, Appellant, v. Mark George Emil PELLER, Respondent.

No. 34640; CA 11128.

Court of Appeals of Oregon.

Argued and Submitted Oct. 16, 1978.

Decided Dec. 11, 1978.

Catherine Allen, Asst. Atty. Gen., Salem, argued the cause for appellant. With her on the brief were James A. Redden, Atty. Gen. and Walter L. Barrie, Sol. Gen., Salem.

David W. Hittle, Salem, argued the cause for respondent. With him on the brief was Gary L. Gardner, Salem.

Before SCHWAB, C. J., and JOHNSON, GILLETTE and ROBERTS, JJ.

GILLETTE, Judge.

This is a criminal case in which defendant was charged with possession of a stolen motor vehicle and criminal activity in drugs. The State appeals an order made prior to trial suppressing certain evidence and statements obtained after a warrantless search of defendant's residence. We reverse.

The facts are: At approximately 4 p.m. on December 8, 1977, Deputy Holmes of the Yamhill County Sheriff's Department advised Deputy Elle of the same department that Holmes and another officer had been watching a certain black and orange Porsche since Halloween. Holmes had learned that the Porsche displayed an improper rear license plate and that, according to the Department of Motor Vehicles, the plate should have been displayed on a Pontiac rather than a Porsche. Holmes had been observing the Porsche because he believed that in order to issue a citation for driving with a switched plate he had to wait until the Porsche was moving. Elle advised Holmes that it was not necessary to wait and offered to help establish the identity and ownership of the Porsche.

Holmes and Elle drove to 665 East 26th Street in McMinnville, where they saw the Porsche parked in the driveway. They went to the door and knocked. Defendant answered the door and spoke with the officers in the breezeway between the residence and the garage. Elle advised defendant of the purpose of the call and asked who owned the Porsche. Defendant told Elle that it belonged to a Mr. Huycke, defendant's roommate, who was at work and would be home later that evening. Elle advised defendant of his Miranda rights but did not arrest him.

Elle asked defendant where Mr. Huycke could be located. Defendant told Elle that he was at his girlfriend's house near the high school, that her name was Johnson and that Huycke should be home before long. Defendant refused to allow Elle to use his telephone. Elle left a business card with defendant, indicating that he wanted Huycke to contact him as soon as he came home. Sometime during that first contact with defendant, Deputy Holmes advised Elle that when another deputy had stopped the Porsche sometime earlier, defendant was driving and that defendant had lied to the officer about something.

When Elle and Holmes left defendant's residence, Elle decided to try to locate the address of the girlfriend and contact Huycke. He had some doubt in his mind about whether defendant was telling the truth about where Huycke was.

When the officers left the residence, they rechecked the registration of the rear license plate on the Porsche and confirmed that it should be displayed on a Pontiac. Elle then had the dispatcher check the city directory to locate anyone by the name of Johnson in the area of the high school or on either side of the school. They were unable to identify a Johnson anywhere in the vicinity of the school. Elle then returned to defendant's residence to confront defendant with the fact that the information defendant had given him was either misinformation or false.

Between fifteen and twenty minutes after the first contact with defendant, the officers knocked at the door, identified themselves and called defendant's name. They stayed at the door between a minute and two minutes. Elle knocked several times with his flashlight on the metal door. He was satisfied that anyone inside would have heard the noise. As they were leaving Elle asked Holmes if he had ever checked the front license plate on the Porsche. When Holmes told him he had not checked, Elle stepped between the garage door and the front of the Porsche and checked the plate. The front plate was different than the rear plate. Elle checked the front plate with the Department of Motor Vehicles and received a report that the plate belonged on a 1974 Plymouth.

Elle had experience with switched plates and auto theft investigation. Because of that experience, he suspected at that point that the Porsche was stolen. Two weeks earlier he had reviewed the latest FBI report indicating that at least two major theft rings were working in the metropolitan area, including the McMinnville area, and dealing specifically in stealing and concealing the identity of Porsches. He knew from that report that as of the first six months of 1977, there were twenty-two Porsches still listed as stolen from the area and that only Corvettes had a higher rate of theft.

After receiving the report on the front plate, Elle tried the driver's door on the Porsche. It was unlocked. Because there was no public identification number visible from the outside of the car, Elle wanted to establish the identity by opening the driver's door where he knew a Federal Standard sticker and identification number should be. He opened the door and found the sticker. He had to use a flashlight to read the number.

Elle and Holmes then returned to the patrol car and drove about a block and a half while Elle asked the dispatcher to check the identification number. The dispatcher reported that neither defendant nor Huycke was listed as an owner and that a vehicle with that number was reported as stolen earlier in the year in Corvallis.

The officers returned to the residence less than a minute after the second visit. Elle noticed that some changes had occurred. There were several cats at the residence. On the first visit, the cats were in the garage. On the second visit, they were out of the garage. On the third visit, the cats were back in the garage and the garage was locked. Elle also noticed that the lighting inside the residence had changed. A light that had been on in the rear of the house during the second visit was out when they returned. Elle believed the defendant was there.

Elle went to the door, knocked again, announced who he was and indicated to defendant that he wanted to talk to him. When he got no answer he went around the side of the residence and at that point was unsure if the lighting inside changed again. Elle returned to the front and asked Holmes to go to the patrol car and ask the dispatcher to call defendant. While Holmes was gone, Elle heard a rustling noise inside the house. He tried the door and found that it was unlocked. He opened the door enough to see into the living room area and called loudly to defendant, announcing who he was and who he represented. There was no response, but Elle believed he may have heard some more rustling noise from the rear of the house.

As Elle was standing at the door, he could see inside to the living room area. He observed at that point what appeared to him as a bong or hash pipe and some stems of marijuana on a corner table about fifteen to twenty feet away. The stems were crumpled in an ash tray. Elle had experience in undercover narcotics investigation and training in identification of narcotics, including marijuana. He had made approximately 200 arrests for offenses involving marijuana and marijuana paraphernalia. He believed he could identify marijuana in its cut state.

Elle stepped inside the house and called for defendant again. At that point he heard some noise to the rear. He started in that direction and, as he went past the corner table, was able to clearly see the paraphernalia and vegetable matter. He went on to...