State v. Taggart

• Citation: 512 P.2d 1359,97 Adv.Sh. 1105,14 Or.App. 408
• Parties: STATE of Oregon, Respondent, v. Michael Patrick TAGGART, Appellant.
• Decision Date: 06 August 1973
• Court: Court of Appeals of Oregon

Page 1359

512 P.2d 1359

14 Or.App. 408

STATE of Oregon, Respondent, v. Michael Patrick TAGGART, Appellant.

Court of Appeals of Oregon.

Argued and Submitted June 20, 1973.

Decided Aug. 6, 1973.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

THORNTON, Judge.

Defendant was convicted after jury trial of assault and robbery while armed. Former 163.280. ¹ He appeals, contending that the trial court erred:

(1) In denying defendant's motion to suppress evidence seized as a result of police entry into his motel room on November 3, 1970, and a search of that room on November 4;

(2) In denying defendant's motion for a new trial based on newly discovered evidence;

(3) In prohibiting testimony from an examining psychiatrist as to statements made by defendant while under a so-called 'truth serum'; and

(4) In instructing the jury that the agreement of 10 members was sufficient to convict defendant.

The essential facts are as follows:

Early in the evening of Novemver 2, 1970, two armed men wearing ski masks held up the Portland business office of the Plaid Pantry grocery chain. Several office employes identified defendant, who had previously been an employe of the firm, as one of the two armed robbers.

The following evening, November 3, defendant, while driving along a Portland street, was arrested for failure to have a valid driver's license. Just prior to being placed in the patrol car, defendant passed a sizeable roll of currency to a woman companion who had been in the car with him This woman was later identified as Susan Bliss, with whom defendant had been living. miss Bliss was not detained.

After defendant had been transported to jail, the officers found a key to room 42 of the Jamaica Motel under the rear seat of rhe patrol car. The officers immediately turned over the key to detectives investigating the robbery. The detectives thereupon went to the motel, contacted the desk clerk and learned that the room was registered to 'Erin O'Brien.' However, both the residence address and car registration shown on the motel registration card were those of defendant. The clerk was also able to identify the picture of defendant shown her by the detectives as that of the individual who had previously registered as 'Erin O'Brien.' She also told them that a young woman was presently in the room. The detectives then proceeded to the room where they knocked and identified themselves as police officers, in response to inquiry by a female voice from within. At this point, the detectives heard considerable commotion and scurrying about within the room. Without waiting further they let themselves into the room, using the key previously recovered from the rear seat of the patrol car.

Inside the room the detectives found only Miss Bliss, whom they thereupon arrested for violation of the 'hotel ordinance.' ² They seized a bank coin bag, of the type reportedly used in the Plaid Pantry robbery, which was lying on top of an overnight case belonging to Miss Bliss. Miss Bliss was searched at the women's jail and $1,676 in currency was recovered from her person. Several of these bills were subsequently identified as being among those taken in the robbery.

On the following day, November 4, 1970, police officers obtained the consent of the management of the motel to conduct a search of room 42. This search was conducted just prior to the management's cleaning of room 42 preparatory to making the room available for rental. Defendant's belongings were packed and placed in a storage room.

The motel owner testified that defendant rented the room on October 28, paying only for that night. On October 31, defendant paid the rent due for the 29th through the 31st, and again on November 2 paid the rent due for the nights of the 1st and 2nd. This was the last payment made prior to the search on November 4. The motel owner testified that she would have removed defendant's belongings on November 3 or 4, since he had not paid the room rent, if another party had been available to rent the room. She did not give defendant notice to vacate. As already noted she had previously accepted late payments of the rent due.

In support of his first assignment, defendant argues that while the police had probable cause on November 3 to search his motel room, a warrant was necessary to authorize such search. From this premise he argues that the warrantless entry by the officers on November 3 was unlawful and thus taints all that stemmed therefrom, including the seizure of the money bag, the arrest and search of Miss Bliss, the seizure of the currency from her person, and the subsequent search of the room on November 4. We cannot agree.

The evidence establishes that at the time the room key was discovered, the investigation was only in its preliminary stage. The second robber was still at large. The proceeds of the robbery had not been located. The defendant had not yet been arrested for robbery. Therefore the discovery of the room key in the patrol car, together with the knowledge that the police saw defendant pass a large roll of currency to his woman companion just prior to being placed in the car, justified the action of the detectives in going immediately to the Jamaica Motel to pursue their investigation. As the court stated in State v. Allen/Reed, Or.App., 96 Adv.Sh. 1640, 508 P.2d 472 (1973):

'* * * The mere fact that a police officer may have probable cause to get a warrant or make an arrest at a particular point does not mean he must stop his investigation and go for the warrant or make the arrest. This is the rule as we understand it from Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), rehearing denied 386 U.S. 940, 87 S.Ct. 970, 17 L.Ed,2d 880 (1967). See also State v. Murphy, 2 Or.App. 251, 258, 465 P.2d 900, Sup.Ct. review denied, cert denied 400 U.S. 944, 91 S.Ct. 246, 27 L.Ed.2d 248 (1970) * * *.' 96 Adv.Sh. at 1642, 508 P.2d at 474.

In Allen/Reed, this court held that police officers were justified in using the manager's key to enter defendant's motel room, where the circumstances of their ongoing investigation led them to believe that delay would risk the loss of evidence and/or the escape of the suspects. Evidence in plain sight was seized. That evidence was held to be admissible; however other evidence discovered as a result of a later search was not, inasmuch as the officers could have obtained a search warrant at that point, without the risk of loss which justified their initial entry. Allen/Reed at 1645, 508 P.2d 472.

In the case at bar the information already known to the detectives, together with the response to their knock and announcement, gave the detectives a reasonable basis for concluding that an immediate entry was required. We hold that exigent circumstances existed which justified the detectives in making such entry. State v. Allen/Reed, supra; State v. Steffes, 2 Or.App. 163, 465 P.2d 905, Sup.Ct. review denied (1970).

Defendant also challenges the warrantless search of room 42 made on November 4, without his consent, but with the consent of the motel management, citing State v. Dougherty, 8 Or.App. 267, 493 P.2d 1383 (1972), and State v. Taggart, 7 Or.App. 479, 491 P.2d 1187 (1971). Defendant argues that on November 4 he had a reasonable expectation of privacy in room 42, even though he had not paid rent after November 2. Therefore the consent given by the motel management, and the subsequent search by police officers on November 4, violated his Fourth Amendment rights.

In the prior decision involving this same defendant and this same alleged robbery (State v. Taggart, 7 Or.App. 479, 491 P.2d 1187 (1971)), this court dealt with a challenge by defendant to a warrantless search of his apartment in another part of the city, based on consent obtained from his landlady. There the defendant was one month in arrears on his monthly rental. We held that challenged search was unlawful. Expressly limiting our holding to leased residential premises, ³ this court said:

'* * * (a) tenant of leased residential premises, whose landlord has acquiesced in the late payment of rent then due, and who does not know or have reason to know that the landlord has decided to terminate his tenancy, continues to have a reasonable expectation of privacy.' State v. Taggart, supra at 483, 491 p.2d at 1189.

State v. Dougherty, supra, reached the question of a hotel employe giving valid consent to a warrantless search of a guest's room. In Dougherty the guest rented a room for a week, paying in advance. He was told that he must vacate at the end of the week and when he did not, a hotel employe admitted police officers to the room. Under these circumstances, the court found that whatever subjective expectation of privacy the guest may have had was not objectively reasonable. Dougherty at 271, 493 P.2d 1383.

The present case differs from Dougherty in that defendant was not given notice to vacate. However, defendant was renting room 42 on a day-to-day basis and was two days in arrears at the time the owner consented to the search. Room 42 could have been rented to someone else any time after the posted checkout time on November 3, when the rent expired.

Dougherty was followed in State v. Cox, Or.App., 96 Adv.Sh. 499, 505 P.2d 360, Sup.Ct. review denied (1973), where a warrantless search was consented to by the hotel management one day after the paid rent expired. The occupants of that room had not been given actual notice to vacate; however, written notice that the rent expired on a certain day had been placed in their box at the hotel desk prior to the expiration of the rent. This court said the...