State v. Rubert
| Decision Date | 30 June 1980 |
| Docket Number | No. C,C |
| Parties | STATE of Oregon, Respondent, v. Connie Lynn RUBERT, Appellant. 79-03-30684; CA 14980. |
| Court | Oregon Court of Appeals |
Howard Clyman, West Linn, argued the cause and filed the brief for appellant.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen. and Walter L. Barrie, Sol. Gen., Salem.
Before SCHWAB, C. J., and JOSEPH, WARDEN and WARREN, JJ.
Defendant appeals her conviction for possession of amphetamines, contending that the drugs were seized pursuant to an unlawful search. We agree and reverse.
On February 24, 1979, officers from the Portland Police Bureau and deputy sheriffs from Wasco County, working undercover, arranged to purchase five ounces of cocaine from three individuals. The sellers told the undercover officers to wait at 39th and Holgate in Portland, while the sellers went to pick up an ounce of cocaine. The transaction was to be divided into five separate deliveries of cocaine in one-ounce packages. The police gave the sellers $2245, the price of one ounce, and the sellers left, saying they were going to pick up the drug from a place in the vicinity of 112th and Holgate. The sellers returned 30 to 45 minutes later with an ounce of cocaine. The police then arrested the sellers.
One of the sellers turned informant and proposed a deal to the police officers. He offered to retrieve the money, help police seize the remaining four ounces, or help the police arrest the individual who sold the drug. The informant told the police he had obtained the cocaine at a house on the west side of 113th Street, about halfway between Holgate and Powell and that there was a small sports car in the driveway. He said that this defendant, her young daughter and a man, Larry McMurphy, were in the house. The informant also told the police that there was at least one gun in the house. In exchange for the information, the police agreed not to arrest the informant.
The informant did not accompany the police to 113th Street. The police reached the area about an hour and a half after they had received the cocaine. They saw only one house between Holgate and Powell that had a small sports car in its driveway. The house was on the west side of 113th Street and about halfway between Holgate and Powell. The police went to the house for the specific purpose of arresting this defendant and Larry McMurphy.
One of the officers knocked at the front door of the house. When the door was opened he drew his service weapon, identified himself as a police officer and immediately entered the residence. Present in the living room of the house were the defendant and Larry McMurphy. Two other officers followed and searched other rooms of the house for additional persons. In one of the bedrooms one of the officers saw amphetamines in an open drawer of a jewelry box atop a dresser.
We conclude that neither probable cause nor exigent circumstances were present to justify this warrantless entry to arrest or to search.
The police found a house that matched the description they were given, but they could not with reasonable assurance identify this house as the one the informant intended. There is no evidence in the record of the color, size, shape or street number of the house. More than one house could be said to sit "about halfway" along the west side of 113th Street between Holgate and Powell. The only distinguishing feature of this house was that "a small sports car" stood in the...
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State v. Sullivan
...secure the evidence, we will not assume that the officers could not have obtained a warrant within a reasonable time. [State v. Rubert, 46 Or.App. 843, 612 P.2d 771 (1980) ].”Roberts, 75 Or.App. at 297, 706 P.2d 564. We hewed to that holding in Kruse, where police responded to a report of a......
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