State v. Rector, C-2399

• Decision Date: 10 February 1987
• Docket Number: C-2399,C-2407
• Citation: 729 P.2d 1,82 Or.App. 466
• Parties: STATE of Oregon, Respondent, v. Christopher I. RECTOR, Appellant. STATE of Oregon, Respondent, v. Ronald David TREMAINE, Appellant. &; CA A35725 (control) & A35726.
• Court: Oregon Court of Appeals

Page 1

729 P.2d 1

82 Or.App. 466

STATE of Oregon, Respondent, v. Christopher I. RECTOR, Appellant.

STATE of Oregon, Respondent, v. Ronald David TREMAINE, Appellant.

C-2399 & C-2407; CA A35725 (control) & A35726.

Court of Appeals of Oregon.

Argued and Submitted June 30, 1986.

Decided Nov. 19, 1986.

Reconsideration Denied Jan. 16, 1987.

Review Denied Feb. 10, 1987.

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

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ. VAN HOOMISSEN, Judge.

This case involves an investigation conducted by several Oregon police agencies and the Walla Walla, Washington, Police Department (WWPD) that resulted in defendants' conviction for burglary. ORS 164.225. On appeal, they contend that the trial court erred in denying their joint motion to suppress evidence. There are three issues: whether Walla Walla police had probable cause to arrest defendants; whether affidavits supporting applications for two search warrants were sufficient; and whether a procedure leading to the identification of defendants was impermissibly suggestive. We affirm.

On November 23, 1983, Diane Morris, an employe of the United States National Bank in Milton-Freewater, told Oregon State Police detective Arnold that a man had come into the bank about 2:30 p.m. that afternoon attempting to exchange about $500 of rolled quarters for paper money. She described him as a white male, about 35 to 40 years old, six feet tall, approximately 250 pounds, grey and white hair, a "Fu Manchu-type" mustache and wearing thick glasses. She said that the man told her that he had tried to exchange the quarters at the First Interstate Bank in Walla Walla, which is about ten miles north of Milton-Freewater, but that that bank had refused the exchange. Morris also refused the exchange. She said that the man left the bank in a white car bearing Oregon license CKP 524 and that another man, whom she described as a white male in his thirties, was seated in the car.

Arnold contacted Ann May, an employe of the First Interstate Bank in Walla Walla. She told him that, on November 21, a man had come into that bank and had obtained paper coin wrappers. The next day, he had returned to the bank and requested the exchange of $700-$800 in quarters for paper money. He was refused. On November 23, the same man returned, again requested to exchange the quarters for paper money and was again refused. Her description of the man was similar to the one Morris had given Arnold. However, May stated that the man had a beard. She also stated that on November 23, she saw a second man, whom she described as a white male in his thirties, five feet nine inches tall, slender build with collar length brown hair.

On the night of November 23, officer McMurphy of the Milton-Freewater Police Department (MFPD) answered an armed robbery call at Prince's Market in Milton-Freewater. The market is located in the same block as the Milton-Freewater bank. McMurphy spoke to store employes Veitenheimer and Hanford. They told him that the market had been robbed at about 9:10 p.m. that evening. They described two robbers, one of whom wore a mask over his face. The employes also said that the last car seen in the parking lot before the robbery was a brown Ford LTD. McMurphy sent a teletype about the robbery to other police agencies. ¹ The teletype was received by the WWPD on November 24.

Arnold learned about the market robbery on November 25. He noticed similarities between the descriptions of the two robbers and those of the men attempting to exchange quarters earlier that day in Walla Walla and Milton-Freewater. He discussed those similarities with MFPD Detective Brown and he gave Brown the information that he had received on November 23, from Morris and May, including the description and license number of the white car. Motor Vehicles Division records showed that a white Buick, Oregon license CKP 524 was registered to defendant Rector in Prineville.

Brown learned that Rector was on probation for burglary in Crook County. He contacted Prineville officer Chance, who told him that Rector had a crime partner named Tremaine, that both Rector and Tremaine had been involved in burglary and theft in the past and that Tremaine had been known to wear a beard. Chance gave Brown descriptions of defendants from police records. ² He also told Brown that defendants' modus operandi was to stay at a motel near a place that they intended to target. Perry, Rector's probation officer, told Brown that Rector owned a white Buick, and he also confirmed defendants' criminal histories.

Brown contacted the three motels in Milton-Freewater, but could not locate defendants. He then called WWPD officer Aycock and discussed with him the market robbery, the attempted coin exchanges in Walla Walla and Milton-Freewater and the MFPD teletype. Brown asked Aycock to check Walla Walla motels to determine if defendants had stayed there. He did not tell Aycock to arrest defendants. Aycock recorded the following descriptions of the robbers:

"1. Tremaine, Ronald David, 5-17-38, 6-3, 280, Grn, Gry, Beard, Very Thick glasses. Age [sic ].

"2. Rector, Christopher Irving, No DOB, 5-10, 165, Brn, Blue, poss. shoulder length hair, Driver & R.O. of susp. veh. age approx. 20's, 1974 Buick 4 dr, Large white, Ore CKP 524.

"Both have extensive Burg & Theft convictions--Paroled to Prineville, Ore. Subj last known ARMED"

About 1:00 p.m. on November 25, WWPD notified Brown that they had located defendants in room 328 of the Capri Motel in Walla Walla. They had registered there under the ficticious name of Allen Schwigger with an address of, "West 24th, New York City." Rector's white Buick, Oregon license CKP 524, was found in the motel parking lot. Brown called Umatilla County District Attorney Gallaher for advice. They decided that Brown should take Veitenheimer to Walla Walla to see if he could identify Rector or Tremaine.

Meanwhile, WWPD officer Wright continued surveillance at the motel. He saw a large, white male, later identified as Tremaine, enter Rector's Buick and drive away. He notified other WWPD officers and followed in a marked police car. Tremaine saw him, and Wright radioed to the other officers that he had been observed. The Buick traveled a short distance and stopped at a cycle shop. Tremaine went inside the shop. While there, he appeared to be looking out the front window. WWPD officers Allessio and Stroe heard Wright's radio report that Tremaine was in the cycle shop looking out the window. They knew that Tremaine was a felon, possibly armed, and they were concerned about the safety of people in and about the cycle shop. They also knew that Tremaine had had time to telephone Rector, who had remained behind at the Capri Motel.

About 15 minutes later, Tremaine returned to the Buick and drove about two blocks. Allessio and Stroe followed him in one car. WWPD Officer Cyr followed in a second car. Allessio then heard a radio report from WWPD Officer Pearson that curtains in room 328 had moved, as though someone were looking out. He was concerned that Tremaine had alerted Rector. When Rector's Buick stopped at an intersection, Allessio observed that Tremaine matched the description of one of the robbers given by the MFPD. The officers signaled Tremaine to stop, and he did. Allessio noticed that Tremaine's face appeared to be raw, as if he had recently shaved. The officers arrested him and searched the Buick for weapons and, although finding none, impounded it. The officers then drove to the motel. Allessio ordered Rector to come out of room 328. When he did, they arrested him and removed $1,900 from his person. They searched him and room 328 for weapons, but found none. About fifteen minutes later, Brown and Veitenheimer arrived. Veitenheimer identified Tremaine as one of the robbers and identified Rector as possibly the other robber.

Shortly after defendants' arrests, WWPD detective Kyle prepared an affidavit in support of an application for a warrant to search room 328 and Rector's Buick. Kyle had not been involved in defendants' arrests, and he obtained his information from police sources. His affidavit contained some inaccuracies. A Washington judge issued a warrant authorizing the searches. Kyle, Brown and Allessio searched room 328. Kyle testified that he saw a green bank bag and several quarter wrappers there. Other officers searched the Buick. Nothing was seized during either search.

On November 28, officer Rogers of the Baker Police Department (BPD) and Brown went to Walla Walla. Rogers had been investigating a burglary at the Baker Bowl on November 17, 1983, in which about $2,000 in quarters had been stolen. He had heard about defendants' attempts to exchange quarters for paper money. Rogers and Brown met Kyle as he was unloading defendants' property, which had been removed from the motel after Rector had requested his clothing. The WWPD officers removed all of defendants' property and placed it in a police storage area, where all prisoners' property is held. Rogers and Brown assisted Kyle in unloading defendants' property. While doing so, they saw two new bowling bags. Rogers thought that the sole of a pair of tennis shoes found among defendants' property matched a footprint that he had found outside the Baker Bowl. Kyle then applied for a second warrant authorizing a search of defendants' property and a second search of Rector's Buick. His affidavit included information about the Baker Bowl burglary and the discovery of the bowling bags, as well as information about defendants' arrests, the previous searches, the information given by Morris and May and defendants' criminal records. The second search...