State v. Warner
| Decision Date | 24 October 1978 |
| Citation | 585 P.2d 681,284 Or. 147 |
| Parties | STATE of Oregon, Respondent, v. Gary William WARNER, Petitioner. TC 76-1050-C; CA 7784; SC 25562. |
| Court | Oregon Supreme Court |
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem.
John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., Salem, and W. Michael Gillette, Sol. Gen., Salem.
Defendant was convicted by a jury of Robbery in the First Degree after the trial court denied his motion to suppress evidence seized by the police in a warrantless search of his person and automobile. Defendant appealed to the Court of Appeals, which, in State v. Warner, 30 Or.App. 117, 566 P.2d 546 (1977), affirmed the conviction. We allowed defendant's petition for review to consider, in general, the application of some of the statutory and constitutional rules concerning "street encounters" and, in particular, application of those rules to this case. We also believed there may have been a misapplication by the Court of Appeals of the doctrine of Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968), concerning the appellate function in determining the voluntariness of a consent to a search or seizure.
As we have had occasion to note in the past, determination of the legality of searches and seizures depends largely upon the facts of each case, State v. Blackburn/Barber, 266 Or. 28, 30, 511 P.2d 381 (1973), and as Chief Justice Warren said in Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968):
* * * "
This case amply illustrates almost the full gamut.
On November 7, 1976, two Rogue River policemen were patrolling in a marked police car in Rogue River, a small community located about eight miles from Grants Pass. One, Officer Myers, who had been a reserve officer for about three months, was in uniform, while the other, Officer Beasley, was off duty and in civilian clothes. At approximately 11:00 p. m. Officer Myers received a dispatch on his radio indicating the following information:
(6) Money was taken.
The dispatch did not contain any of the following information:
(a) a physical description of either of the two male suspects; i. e., height, weight, race, etc.;
(b) the amount of money taken or the amount or denomination of coins or bills;
(c) a description of a vehicle involved in the robbery or that any vehicle was involved; or
(d) the exact time the robbery took place.
At about 11:10 p. m. Officers Myers and Beasley saw an automobile pull up to the front of the Homestead Bar in Rogue River. The officers saw two men getting out of the car and entering the bar. The officers waited outside for about ten minutes and then decided to enter the bar for a "routine check." They parked their car at the rear of the tavern, entered, sat down at one end of the bar and ordered two cups of coffee. Officer Myers proceeded to walk to the rear of the bar "to check on individuals in the bar." Other than the two officers, only three male patrons, one female patron and the bartender were present. As Officer Myers returned, a man named Carlin sitting at the other end of the bar, who, as it turned out, was with the defendant, asked Officer Myers in a casual, conversational tone, if he had been keeping busy. Officer Myers relied that he was trying to and returned to his seat next to Officer Beasley.
At that time Officer Myers asked the bartender if anybody had been flashing any money or acting suspiciously. The bartender answered in the negative, but two or three minutes later the bartender returned to where Officer Myers was sitting and asked him to step into a back room, where the bartender told him that one of the two men at the far end of the bar (Carlin) had "just pulled out a wad of money, the size he'd never seen before." At this point Officers Myers and Beasley began observing the two men at the far end of the bar more closely. Neither man wore clothes similar to those described in the dispatch. Officer Myers testified that they were "talking in very low tones of voice, looking at us, looking at each other, looking back at us." Officer Myers went out to his police car and requested more information on the robbery and suspects, but none was available. Officer Myers returned to the bar and continued to observe the two men. Sometime later he went back to his police car, advised the dispatcher that he had two possible suspects in the armed robbery under surveillance and advised the dispatcher to call Chief Hinrich and Sergeant Ring of the Rogue River Police Department and to send County Sheriff backup units.
Officer Myers then entered the bar for the third time, advised Officer Beasley of what he had done, and went back out the front door to observe the automobile in which, he believed, the two men had arrived. As Officer Myers began to shine his flashlight into the front seat of the automobile, he observed the two suspects walking out of the front door of the bar. At this point the testimony differs somewhat. Officer Myers testified:
"On seeing the two gentlemen walking out of the front door, I felt that I had need to ask questions of the two gentlemen so I Asked them to return to the inside of the bar, remove their wallets from their pockets, take their ID out and place them on the table in front of them." (emphasis added)
The two men complied.
Myers further testified concerning this "street encounter" as follows:
Carlin testified that as he and the defendant were walking toward the door Officer Myers entered the bar and stated, "I want to know who you are, show me your ID." Defendant corroborated the location of this initial encounter.
Officer Myers then testified that he accompanied the two back into the bar, asked them to put their ID's on a table near the door, told them of the armed robbery in Grants Pass and said he would like to ask them some questions. He neither told them that they were under arrest nor that they were free to leave, but said:
"I told them as soon as possible we would clear this matter up and they would be on their way."
After looking at the ID's of the two suspects, Officer Myers, according to his own testimony, "asked" them to walk out the back door to his police car so he could run Division of Motor Vehicles and warrant checks on them. The two complied. Carlin testified that after looking at their ID's Officer Myers said, In any case they complied, and the group proceeded out the rear door of the bar to the police car in back.
Officer Myers testified that it was the money which made him suspicious, although he did not know the denominations or sum which Carlin had. Apparently, on their way through the bar, Officer Myers asked Carlin about the "wad" of money. Officer Myers testified as follows:
Officer Myers testified that in response to a question the two told him they had been in Grants Pass 45 minutes before. Officer Myers then entered the car, while Officer Beasley remained outside with defendant and Carlin. Officer Myers contacted the dispatcher and gave him the driver's license numbers of the two.
At this point, which was five to ten minutes from the first direct encounter, Chief Hinrich and Officer Ring, who had parked their individual cars in the front of the bar, arrived at the police car at the rear of the bar. Officer Myers asked the Chief to get defendant's automobile license number, which he did. Officer Myers reported it to the dispatcher and learned that the vehicle was properly registered to the defendant.
Chief Hinrich had been contacted at his home at approximately 11:30 p. m. and arrived at the Homestead Bar about five minutes later. At the time he arrived, Chief Hinrich knew only what the dispatcher had told him that Officers Myers and Beasley had two possible armed robbers at the Homestead and required a backup. He was not aware of the armed robbery in Grants Pass. When Chief Hinrich returned with the license number, he got in Myers' vehicle and was told of...
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...are seizures of the person for constitutional purposes. Terry, supra, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16; State v. Warner, 284 Or. 147, 161-62, 585 P.2d 681 (1978). Both were used in this case. If the stop occurred when the police, while still outside, commanded defendant to come ......
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