State v. Sanford

• Decision Date: 30 December 1966
• Citation: 421 P.2d 988,245 Or. 397
• Parties: STATE of Oregon, Respondent, v. Gerald Clayton SANFORD, Appellant.
• Court: Oregon Supreme Court

Page 988

421 P.2d 988

245 Or. 397

STATE of Oregon, Respondent, v. Gerald Clayton SANFORD, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 6, 1966.

Decided Dec. 30, 1966.

Frank P. Santos, Oregon City, argued the cause and filed the brief for appellant.

Roger N. Rook, Dist. Atty., Oregon City, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen., Salem.

Before McALLISTER, C.J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE, and HOLMAN, JJ.,

HOLMAN, Justice.

The defendant has appealed from a judgment of conviction of the crime of burglary in a dwelling house after a trial by the court without a jury. The residence burglarized was that of the operator of the 'Top O Scott Golf Course.'

Defendant contends the court erred in denying his motion to suppress evidence. The evidence was taken from defendant's apartment under a search warrant. Defendant contends, however, that information concerning the presence of the evidence in the apartment was acquired as the result of a previous illegal search of the apartment without a warrant and that this invalidates the subsequent search and seizure under the warrant.

The motion to suppress did not specify any particular evidence which defendant desired suppressed. It stated '* * * moves the court to suppress the evidence obtained as a result of the illegal entry and search of defendant's home, * * *.' The hearing on the motion to suppress disclosed that two City of Portland detectives were sent to the apartment house in which defendant lived pursuant to a call to the police by the apartment house manager. The manager told police a sum of money had been stolen from him and that defendant had been seen displaying a large and unusual amount of money. Together with the manager, the detectives went to the defendant's apartment and knocked on the door. There was no response. The detectives found a money wrapper which had written on it 'Top O Scott Golf Course' lying on the hallway floor adjacent the door to defendant's apartment. They then looked in a window of the apartment from a common passageway and saw another money wrapper on the floor of the apartment. They could not read the legend upon it but it appeared similar to the one found in the hallway. They then went back and again knocked at the door and again received no response. The manager then let them into defendant's apartment with his manager's pass key. The officers searched the apartment for the stated purpose of looking for defendant. They looked at the money wrapper which was on the floor of the apartment and found that it bore the same markings as the one found in the hall. They observed a plastic bag in a closet which they did not open, but which appeared somewhat unusual for the place where it was found. They then went to the manager's apartment and used the telephone to call police headquarters and were reminded that a teletype had been received by the Portland Police Department concerning the 'Top O Scott' burglary. The officers then secured a warrant and searched the apartment again. The affidavit for the warrant recited '* * * I knocked on the door to speak to the residents of said apartment and I observed directly below my person and on the floor approximately one foot from the apartment door a green money wrapper bearing the name 'Top O Scott Golf Course.' I then observed inside the aforementioned apartment a money wrapper identical to the one observed immediately in front of the apartment door.' The affidavit is not available to us and it is not known what other language appeared therein, but we are presuming that it included that information had been received by the Portland police to the effect that the home of the operator of the 'Top O Scott Golf Course' had been burglarized.

The evidence at the preliminary hearing upon the motion to suppress failed to disclose any articles that were taken under the warrant of which knowledge was gained by the previous illegal entry. In fact, the evidence even failed to disclose what articles were taken under the warrant. However, the following questions were asked one of the searching detectives concerning what was discovered on the original entry:

'Q All right. Did Mr. Ludwig (the apartment house manager) let you in with his key?

'A Yes.

'Q At this time did you observe the things that you later picked up on the search warrant?

'A No, I observed the coin or the money wrapper that I had already seen from the outside of the apartment through the window. We weren't searching the apartment. We were looking for the defendant here. There was only a couple or three places he could have been that we couldn't have seen through the window, in the closet, under the bed, in the kitchen.'

The answer of the officer was incorrect because at the trial it was shown that the plastic bag was taken under the warrant. The bag was introduced in evidence as was part of its contents which were fruits of the burglary. Defendant at the trial again moved the court in general terms to quash the evidence. However, he did not call to the court's attention the significance of the discrepancy between the officer's testimony at the preliminary hearing and that which was given at trial.

The evidence having been taken under a search warrant, the burden of showing the illegality of its seizure was upon the defendant. See State v. Elkins, Or., 422 P.2d 250 (decided December 28, 1966). When defendant failed to show at the preliminary hearing that anything was taken under the warrant of which knowledge was gained by the previous illegal entry, the court had no choice but to deny defendant's motion to quash. The original entry was illegal but it was not shown to have induced the subsequent securing of the warrant. Nor was the information illegally obtained which was necessary to make a showing of probable cause for the issuance of the warrant. The information concerning the money wrappers which was secured prior to the illegal invasion of defendant's apartment together with the information concerning the burglary secured via the teletype furnished sufficient probable cause upon which to base the issuance of the warrant. The fact that it was learned upon the illegal entry that the money wrapper which was seen through the window bore the same legened as the one on the outside was unnecessary to the securing of the warrant. It appeared to be identical upon looking through the window of defendant's apartment and this, together with the other information, was sufficient.

A motion to suppress must be made prior to trial, unless the defendant is unaware of the seizure. State v. Laundy, 103 Or. 443, 493--494, 204 P. 958, 206 P. 290 (1922); State v. Goldstein et al., 111 Or. 221, 225, 224 P. 1087 (1924); State v. Haynes, 233 Or. 292, 294, 377 P.2d 166 (1963). The reason for the rule is that the continuity of the trial should not be interrupted for...