State v. Poole
| Citation | 11 Or.App. 55,500 P.2d 726 |
| Parties | STATE of Oregon, Respondent, v. Christopher POOLE, Appellant. |
| Decision Date | 21 November 1972 |
| Court | Court of Appeals of Oregon |
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
John W. Osburn, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Burgess, Special Asst. Atty. Gen., Salem.
Before SCHWAB, C.J., and FOLEY and FORT, JJ.
The defendant was convicted by a jury of the crime of burglary in a dwelling. He appeals asserting that the trial court erred in denying defendant's motion to suppress and motion for mistrial, and erred in instructing the jury that every witness is presumed to tell the truth.
A Multnomah County Sheriff's deputy, while on duty, received a call of a burglary in progress. This broadcast included a description of the car (a maroon Corvette, bearing Oregon license number 5S1264), a description of the occupants (two males), the direction of travel, and a statement that the occupants of the car had been seen carrying rifles from the burglarized house.
Approximately six minutes after receiving the broadcast, the officer observed the vehicle described in the broadcast proceeding at a high rate of speed in the direction indicated in the broadcast.
The vehicle proceeded to and parked in a metered parking area east of the airport and the officer stopped his vehicle behind the car. He approached the two occupants and asked them for their identification. The driver, Eugene Hughes, produced his Social Security card and the defendant produced a California driver's license.
After the officer had made a search for weapons he went over and looked in the window of the vehicle and saw on the back floorboard a green blanket and a brown leather coat. It appeared to the officer the blanket had been draped over some tubelike objects. The officer opened the car door and saw protruding from the blanket an inch and a half tube-like object which appeared to be the muzzle of a weapon. He then proceeded to lift up the blanket and observed seven rifles under it. He then shut the door, walked over to the suspects and placed them under arrest for burglary.
Defendant sets forth two grounds for his assertion that the search which resulted in the seizure of the weapons was unlawful. He first contends that the officer had no justification for stopping the automobile other than the 'unverified tip' which was broadcast to him. Since the state failed to show that its 'informant' was reliable, defendant's argument continues, the basis for stopping was unfounded.
Defendant's reliance on the cases of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, rehearing denied386 U.S. 1042, 87 S.Ct. 1474, 18 L.Ed.2d 616 (1967); and Aguilar v. Texas,378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), is inappropriate, since those cases all involve the reliability of an unnamed police informant. The instant case, by contrast, involves a 'citizen informer' who was an eye-witness to the burglary. This court has recently held that the state need not prove the reliability of such an individual to the extent that it must prove the reliability of an 'unnamed police informant,' since the citizen informer hides behind 'no cloak of anonymity.' State v. Poteet, Or. App., 94 Adv.Sh. 1074, 1076--1079, 495 P.2d 783, Sup.Ct. review denied (1972).
We conclude that the information broadcast to the officer was sufficiently reliable and specific to constitute probable cause for him to stop the vehicle.
Defendant also contends that the officer should have obtained a search warrant before searching the vehicle.
In order to justify a warrantless search two conditions must be met. First, there must be 'probable cause' that a search of the person or place in question will result in the finding of evidence of crime. State v. Keith, 2 Or.App. 133, 465 P.2d 724, Sup.Ct. review denied (1970). This requirement was met in the instant case, given the minute specificity of the police broadcast received by the officer. Second, there must be some exigent circumstances which outweighs the need for judicial scrutiny of probable cause which the search warrant provides. In this case the mobile nature of the automobile gave the officer probable cause to believe that an immediate search was necessary in order to avoid the loss of evidence. Chambers v. Maroney,399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, rehearing denied 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970); State v. Keith, supra. The facts in the present case are materially different from the facts in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, rehearing denied404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), relied upon by defendant. We hold that the search was proper under the facts of this case.
Defendant's second assignment of error is that the trial court erred in denying his motion for a mistrial. The facts leading to the motion for mistrial were as follows: After defendant had taken the stand, the state introduced into evidence a copy of a judgment showing that defendant had been convicted of petty larceny. Defendant, on redirect examination, stated that he had pleaded guilty to the petty larceny charge and to another charge, and defense counsel referred to the larceny charge as involving only 'cigarettes and candy.' This was done presumably to minimize the effect that defendant's prior convictions might have on the jury.
On recross-examination the defendant stated that he was motivated to plead guilty to petty larceny only because he had been advised that this was the only way he could get out of jail. The prosecutor then asked:
Defense counsel objected, the jury was excused, and defense counsel moved for a mistrial. The trial judge ruled, after extensive argument, that although he believed that the question was improper, he did not believe that it was so prejudicial as to justify declaring a...
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...personal observation, citing its previous decisions in State v. Poteet, 9 Or.App. 231, 495 P.2d 783, Rev. den., (1972); State v. Poole, 11 Or.App. 55, 500 P.2d 726, Rev. den., (1972), and State v. Bidwell, 14 Or.App. 679, 514 P.2d 559, Rev. den., (1974). We allowed defendant's petition for ......
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