State v. Roderick
| Decision Date | 09 March 1966 |
| Citation | 412 P.2d 17,243 Or. 105 |
| Parties | STATE of Oregon, Respondent, v. Gene RODERICK, Appellant. |
| Court | Oregon Supreme Court |
Nathan J. Ail, Portland, argued the cause and filed a brief for appellant.
George M. Joseph Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty.
Before McALLISTER, C.J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN, and LUSK, JJ.
Defendant appeals from a judgment of conviction of assault and robbery, being armed with a dangerous weapon.
The principal question arises on the court's denial of defendant's motion to suppress the use as evidence of a .45-caliber pistol and clip taken from an automobile in the course of what is claimed to be an illegal search and seizure. No search warrant had been issued. The motion was filed and a hearing held thereon prior to trial.
The facts adduced at this hearing are as follows: On September 17, 1964, the Portland police, having been informed that the defendant was wanted by the Idaho authorities, put in a telephone call to the Idaho Identification Bureau and were advised that the defendant was wanted in Idaho as a fugitive from Idaho on an escape charge. The escape was from the county jail. There is no definite evidence as to the charge on which the defendant was incarcerated. Police Officer Saling, who listened to the telephone conversation over an extension, testified that it was 'about some type of check or forgery.' At this time the Portland police had information that the defendant was involved in 'some of our local holdups' and they had a 'mug photo' of the defendant, the number of which corresponded to the number given them by the Idaho police. So far as the evidence discloses, the Portland police were not advised that a warrant had been issued in Idaho for the defendant's arrest.
About two hours after the telephone call Saling, accompanied by three other policemen, arrested the defendant in Portland. They had received information, the source of which is not disclosed, that the defendant would be in a 'particular vehicle' at a particular time and place. The police, having previously viewed the defendant's photograph, drove to the neighborhood indicated by their informer and parked about a half block from a parked car, which they took to be the car they were looking for. This car started up and was driven toward the police car. Saling testified that as it came even with the police car they recognized the defendant. The police car followed the other car and stopped it. The defendant was riding in the front seat between the driver and another man. Saling ordered the defendant out of the car and informed him that he was wanted in Idaho, 'that they did have this outstanding warrant for him as an escapee.' Saling then placed the defendant in the police car and 'hung onto him real close' as they had 'received information that Mr. Roderick was very possibly armed.' Besides the Portland police, two Multnomah County deputy sheriffs were on the scene. Immediately after the arrest of the defendant, a deputy sheriff looked under the front seat of the car in which the defendant had been riding, and, with the aid of a flashlight, it then being dark, discovered on the floor on the rider's side the pistol, the evidence of which defendant seeks to suppress. There was a live shell in the chamber and three shells were in the clip.
On the trial the state proved that on September 15, 1964, the defendant held up at gunpoint and robbed Paul Davis, an attendant at a service station in Portland. The defendant was armed with a pistol and the evidence that it was the same pistol recovered in the search was sufficient to go to the jury. Over the objection of defendant the pistol and the clip were received in evidence.
The state contends that the search was made as an incident to a lawful arrest was was therefore lawful. State v. Chinn, 231 Or. 259, 266, 373 P.2d 392, 395. On this issue the state has the burden of proof: Priestly v. Superior Court, 50 Cal.2d 812, 816, 330 P.2d 39; 5 Am.Jur.2d 714, Arrest § 24.
The authority of a peace officer in this state to arrest a person without a warrant is set forth in ORS 133.310, which provides:
'A peace officer may arrest a person without a warrant:
'(1) For a crime committed or attempted in his presence;
'(2) When the person arrested has committed a felony, although not in his presence;
'(3) When a felony has in fact been committed or a major traffic offense, as defined in subsection (5) of ORS 484.010, has been committed, and he has reasonable cause for believing the person arrested to have committed it; or
'(4) When he is notified by telegraph, telephone, radio or other mode of communication by another peace officer of any state that such peace officer holds in his hands a duly issued warrant for the arrest of such person charged with a crime committed within his jurisdiction.'
There is no claim that the defendant was arrested for a crime committed in the presence of the officers, but it is contended that the arrest was lawful under subsections (2), (3), and (4) of the statute. As the greatest emphasis in the state's brief is laid on subsection (4), we will consider that provision first. A prerequisite to its use as justification for the arrest in this case is that the Portland police must have been notified that an Idaho peace officer held 'in his hands a duly issued warrant' for the arrest of Roderick for a crime committed in Idaho. We agree with counsel for the state that the language 'holds in his hands' is not to be given a literal interpretation. If the warrant had been issued and was available for service and the Portland police were so advised this should be sufficient. But there is no evidence of these facts. The testimony that the Portland police were told that the defendant was 'wanted as a fugitive * * * on an escape charge' is not testimony that they were told that a warrant had been issued. The state's brief calls attention to the testimony of Detective Saling when asked whether he informed the defendant of the crime for which he was arrested. Saling answered: 'I told him that Idaho wanted to see him, that they did have this outstanding warrant for him as an escapee and he said he didn't know from nothing.' This is only evidence of what the officer said to the defendant, not of the fact that the Portland police had been notified of the issuance of such a warrant. Proof of that fact may not be left to conjecture.
The state puts forward two grounds for the legality of the arrest under subsection (3) of ORS 133.310. It is said that two felonies had been committed, namely, escape from the Idaho jail and armed robbery and the police had reasonable cause for believing the defendant had committed them.
Idaho Code 18--2505 provides, in pertinent part:
'Every prisoner charged with or convicted of a felony who is confined in any jail or prison including the state penitentiary for a term of less than life * * * who escapes * * * from such jail or prison * * * shall be guilty of a felony * * *.'
As we have already indicated, there is no evidence that the defendant was imprisoned in Idaho on a felony charge or upon conviction of a felony. To avoid this difficulty, the brief of the state quotes Saling's testimony that he knew that defendant was a 'felony escapee.' But this conclusion of the witness, absent the statement of any fact to support it, clearly is insufficient. So much was conceded at the argument by able counsel for the state. There is no evidence that the defendant's escape from the Idaho jail was a felonious offense; hence his arrest on that charge is not justified under subsection (3) of ORS 133.310.
The defendant was arrested, as we have seen, for the crime of escape from an Idaho jail. Assuming, without deciding, that an unjustified arrest for a particular offense may be sustained as a lawful arrest for a totally different offense, we will consider the contention that the police had reasonable cause for believing the defendant had committed armed robbery. The only basis for suspecting the defendant of commission of that crime was information the police had received that he 'was involved in some of our local holdups.' Rumor of that character was held to be 'practically meaningless' on a question of probable cause in Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134, 139. It was not relied on in the circuit court. In fact, the testimony concerning it was brought out on cross-examination of the witness Saling.
It is now established law that evidence of information from a Reliable informer is sufficient to sustain a finding of reasonable cause for an arrest: State v. Penney, Or., 410 P.2d 226, 228; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; People v. Prewitt, 52 Cal.2d 330, 341 P.2d 1. But in this case we are not told whether the informer was known to the police or anonymous, and the record is silent as to whether he was reliable. There is no evidence, circumstantial or otherwise, upon the subject. It is not even shown that the communication was made to Detective Saling (the only witness who testified upon the subject) or that he had personal knowledge of it. Moreover, it appears that the Portland police did not rely on the information. They put in the call to the Idaho authorities because, as Saling testified: 'We understood that he was wanted through them.' The officer further testified:
'Q Isn't it true, Detective Saling, that you through an informant or through outside sources, had suspected Mr. Roderick as being a robber?
'A Yes.
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State v. Williams
...If the arrest is invalid, a search incident thereto is also invalid. State v. Rater, 253 Or. 109, 453 P.2d 680 (1969); State v. Roderick, 243 Or. 105, 412 P.2d 17 (1966). By contrast, when there is probable cause to arrest and/or search, there need not be an arrest before there can be a sea......
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