State v. Ragsdale

• Decision Date: 30 May 1978
• Citation: 34 Or.App. 549,579 P.2d 286
• Parties: STATE of Oregon, Respondent, v. John Kennedy RAGSDALE, Appellant.
• Court: Oregon Court of Appeals

Page 286

579 P.2d 286

34 Or.App. 549

STATE of Oregon, Respondent, v. John Kennedy RAGSDALE, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Nov. 16, 1977.

Decided May 30, 1978.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

William F. Nessly, Jr., Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.

Before SCHWAB, C. J., and LEE and JOSEPH, JJ.

LEE, Judge.

Defendant appeals his conviction of carrying a dangerous weapon with intent to use it in violation of ORS 166.220. ¹ The issue is whether the trial court erred in denying defendant's motion to suppress all evidence derived from a motor vehicle stop. Defendant contends that the subsequent search of his residence was unlawful because the search warrant was issued on the basis of an affidavit which contained information acquired in an illegal stop and search of his vehicle.

The evidence shows that officer McCloud received police radio information at 1:16 a. m. that a shot had been fired into a house on Mount Richmond Road, near Gaston, Oregon. The house was occupied at that time. The radio communication indicated that a small and possibly dark vehicle was involved and that it had proceeded away from the scene toward nearby Cherry Grove. Mount Richmond Road extends in a generally easterly direction from the scene of the shooting to an intersection with Patton Valley Road where one may go south toward Cherry Grove or north toward Scoggins Dam. There are few other roads in that general area.

When McCloud received the radio report he was "not very close" to the scene so it required some driving time to arrive at a point "five (or) six" miles from the scene of the shooting. Sixteen minutes after the radio report, while he was driving south on Patton Valley Road, toward the scene, he met a small vehicle traveling north toward Scoggins Dam. McCloud felt that the automobile he met might be the suspect vehicle so he turned around to follow it. McCloud estimated that the "turn around" required ten seconds. Upon attempting to overtake the vehicle, he noticed that it "speeded up" and he had difficulty overtaking it. After a three minute pursuit, McCloud stopped the vehicle at 1:35 a. m.

The vehicle stopped was a white Chevrolet Nova. McCloud informed the occupants, defendant and Fredericks, of the shooting incident, surveyed the passenger area with his flashlight, and asked defendant if there were any weapons in the car. When defendant said no, McCloud indicated that he wished to look in the trunk.

As McCloud and defendant approached the trunk, defendant told McCloud that Fredericks' rifle was in the trunk. When defendant opened the trunk, the officer saw a 7.35 mm converted military rifle. The gun's action was open, it was unloaded, and McCloud concluded from smelling the barrel that it probably had not been fired recently. The stop lasted 15 minutes, after which defendant was released.

Three 30.06 shell casings, one loaded 30.06 cartridge, and two 7.35 mm shell casings were found near the scene of the shooting and two bullet fragments were found in the house. Discovery of the cartridge and shell casings led to further investigation of defendant and his acquaintances.

In preparing an affidavit to establish probable cause to search defendant's house, the police made reference to McCloud's discovery of a 7.35 mm rifle in the trunk of defendant's car. The affidavit also recited that defendant's sister was aware that defendant owned a 30.06 rifle, that Deputy Oviatt had recovered Fredericks' 7.35 mm rifle from one Buzzini with ammunition in it, and that Buzzini said Fredericks had given it to him for safekeeping because Fredericks "had been target practicing and might have shot a house." The affidavit stated further that on December 17, 1975, Deputy Elle took the 7.35 mm rifle and the 7.35 mm shell casings found in the vicinity of the house to the Oregon State Police Crime Laboratory for analysis, which had indicated that Fredericks' 7.35 mm rifle fired the shells that produced the 7.35 mm shell casings found near the house. The affidavit concluded that the above information constituted probable cause to search for a 30.06 rifle, 30.06 ammunition or empty shell casings or a 30.06 ammunition box at defendant's residence. During the subsequent search of defendant's home, officers found one box of 30.06 shell casings and a container with four empty casings.

Defendant contends, inter alia, that McCloud did not have grounds for a reasonable suspicion as a basis for stopping his car. An officer may stop and interrogate a person if he "reasonably suspects" that the person has committed a crime. ORS 131.615. ² That term is defined in ORS 131.605(4) as follows:

"(4) 'Reasonably suspects' means that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place he acts as authorized in ORS 131.605 to 131.625."

ORS 131.605(4) was part of section 30 of the Proposed Oregon Criminal Procedure Code of 1972, complied by the Criminal Law Revision Commission (Commission), which was enacted by the legislature in 1973. The commentary relevant to this particular section is found at page 25 of the Commission's report and in pertinent part is as follows:

" 'Reasonably suspects' is defined initially to show that the suspicious belief must be based on a totality of the circumstances. This requirement was stated in similar terms in (Terry v. Ohio, 392 U.S. 1, 88...