State v. Warner

• Decision Date: 18 July 1977
• Citation: 566 P.2d 546,30 Or.App. 117
• Parties: STATE of Oregon, Respondent, v. Gary William WARNER, Appellant.
• Court: Oregon Court of Appeals

Page 546

566 P.2d 546

30 Or.App. 117

STATE of Oregon, Respondent, v. Gary William WARNER, Appellant.

Court of Appeals of Oregon.

Argued and Submitted June 29, 1977.

Decided July 18, 1977.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. 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., and W. Michael Gillette, Sol. Gen., Salem.

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

THORNTON, Judge.

Defendant was convicted after jury trial of the crime of robbery of a Grants Pass tavern. The sole issue presented in this appeal is whether the trial court erred in denying defendant's motion to suppress evidence connecting defendant with the robbery, which evidence was seized during a warrantless search by police of defendant's automobile.

The statement of facts of necessity must be detailed.

At about 11 p. m. on the evening of November 7, 1976, Officers Myers and Beasley of the Rogue River Police Department while riding in their patrol car received a radio bulletin of an armed robbery of a named tavern in Grants Pass. The city of Rogue River is approximately eight miles from Grants Pass. The report indicated that two men with ski masks and a shotgun had staged the robbery. Shortly after receiving the report the officers decided to stop at the Homestead Tavern in Rogue River. They arrived at the tavern approximately 10 minutes after hearing the report of the robbery. When they arrived, they saw a car "pulling up to the front of the building (Homestead Tavern)." Two men, who were not dressed as reported in the bulletin, got out of the car and entered the tavern.

After waiting in the patrol car for a few minutes, the officers entered the tavern. Myers was in uniform; Beasley was in civilian clothes. Officer Myers ordered two cups of coffee and walked through the tavern area. They saw four people sitting at the bar: the same two men, defendant and his companion, Richard Carlin, were sitting together at the end of the bar; another man and a woman were also sitting at the bar. Officer Myers asked the bartender to be on the lookout for anyone flashing a large amount of money. Officer Myers testified that defendant and Carlin were "(t)alking in very low tones of voice looking at us, looking at each other, looking back at us." Shortly thereafter the bartender asked Myers to step into the backroom. He told Myers that one of the pair, Carlin, pulled a wad of money "the size he'd never seen before." Myers walked back into the bar and advised Officer Beasley of the bartender's conversation and they continued to observe the defendant and Carlin sitting at the bar, approximately 15 feet away. Myers left the tavern briefly and contacted his dispatcher by radio to see if any additional information had been reported concerning the armed robbery. The dispatcher advised that no additional information was available. Myers returned to the tavern. Shortly thereafter he again went to his car and advised his dispatcher that he was keeping the two subjects under surveillance in regard to the possible armed robbery and he requested backup units both from the county sheriff and his own city police department, and returned to the tavern. Myers thereafter left the tavern and walked up to the automobile which the two men had driven and parked in front of the tavern. The officer shined his flashlight through the window in an effort to observe the contents of the vehicle. He observed nothing out of the ordinary. At that moment defendant and Carlin emerged from the tavern. Officer Myers testified that under the circumstances he felt the need to ask them some questions. Therefore he asked them to go back inside the tavern. The officer did not have his gun drawn and defendant and Carlin did not object to returning into the tavern. He then asked them to place their identifications and wallets on the table inside the front door. Officer Myers explained to them the reason for his request. He testified that he told them he had received a report of a robbery in Grants Pass and that he would like to ask them about this. He told them "as soon as possible we would clear this matter up, and they would be on their way." Officer Myers further testified that defendant and Carlin appeared to understand his explanation for asking them to identify themselves. They placed their identification and wallets on the table. Officer Myers testified that "(t)hey indicated a willingness to comply."

After seeing defendant's and Carlin's identification Myers asked them if they would walk out to the patrol car so that he could run DMV and warrant checks on them.

Officer Myers testified that he asked them to go outside to his patrol car to find out if they were in fact who they said they were and if there were any warrants out for them. Officer Myers indicated that if defendant and Carlin had refused to accompany him outside he would not have stopped them. Neither defendant nor Carlin objected to going outside with the officers to the patrol car. Officer Beasley who had been elsewhere, joined Officer Myers, defendant and Carlin. Once outside Officer Myers asked defendant and Carlin where they had been earlier in the evening, and they replied, "Grants Pass." Officer Myers began checking to see if there were any outstanding warrants on the pair. Defendant and Carlin stood outside the patrol car while Officer Myers made his radio check. At that point about five minutes had elapsed from the time Officer Myers first met the defendant and Carlin until the time he began checking on outstanding warrants. While Officer Myers was still making his radio check, other backup officers arrived. At that point about five to ten minutes had elapsed since Officer Myers had first met defendant and Carlin. Officer Myers advised Chief Hinrich of the Rogue River City Police Department, the senior officer who had by then arrived at the scene, of the facts contained in the radio report as to the armed robbery. Chief Hinrich then walked over to defendant and Carlin and asked them if they would mind emptying their pockets on the hood of the car. Neither defendant nor Carlin objected to Chief Hinrich's request. Carlin placed a large amount of paper money and several .38 caliber hollow point bullets on the hood. Defendant placed two rounds of 20 gauge shotgun shells on the hood. When Chief Hinrich saw the ammunition, he drew his gun and ordered both defendant and Carlin to "freeze." Chief Hinrich knew that the radio report of the incident said that one of the robbers carried a shotgun and that "hollow point" bullets have a greater stopping power than solid bullets.

When Officer Myers heard Chief Hinrich tell defendant and Carlin to "freeze," he dismounted from the patrol car with his gun drawn; however Officer Myers holstered his gun when he saw Chief Hinrich begin a pat down search of defendant and Carlin. Chief Hinrich also put his gun down to conduct the pat down. He found no weapons on defendant and Carlin. Chief Hinrich asked defendant for permission to search the interior of his automobile. Defendant answered, "(t)he doors are open, help yourself." Chief Hinrich opened the car door, looked underneath the driver's bucket seat and found "two cotton type ski hats" with holes cut out of them. He also found a green coin tray between the seats, a gold colored money bag and rolls of coins as well as loose coins on the floor. Chief Hinrich then arrested defendant and Carlin. Defendant was asked if the officers could search the trunk of the car, and defendant indicated he did not care if they did. The officers opened the trunk and found a shotgun, a bag of money and some clothing.

The main thrust of defendant's argument is that the police did not have reasonable suspicion to stop defendant and his companion outside the Rogue River tavern and inquire concerning an armed robbery which had just occurred in Grants Pass; that the police lacked probable cause to then search them. In addition defendant argues that the automobile search was invalid because the police, prior to obtaining defendant's consent to the search, failed to advise defendant that he had a constitutional right to refuse the requested search.

After analyzing the above facts and defendant's arguments, we conclude that the trial court did not err in overruling defendant's motion to suppress the evidence seized. Contrary to defendant's argument, we regard the initial stopping of defendant and his companion for questioning outside the Homestead Tavern as amply justified by the circumstances, as well as by ORS 131.615. ¹ We do not regard it as a "stop" defined in ORS 131.605(5). ² There was no restraint of defendant's liberty "by means of physical force or show of authority." Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).

Not every preliminary inquiry by a police officer of a citizen, whether he be a pedestrian or a motorist, is a "stop" within the meaning of ORS 131.605(5). See, State v. Harris, 25 Or.App. 71, 547 P.2d 1394, Sup.Ct. review denied (1976); State v. Ward, 16 Or.App. 556, 519 P.2d 1269, Sup.Ct. review denied (1974).

As the United States Supreme Court observed in Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972):

" * * * The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry (Terry v. Ohio) recognizes that it may be the essence of good police work to adopt an intermediate response. * * * "

Probable cause to arrest need not be shown before an officer can undertake a preliminary inquiry as to an alleged crime. Terry v. Ohio, supra.

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