State v. Williams

• Decision Date: 13 October 1967
• Citation: 432 P.2d 679,248 Or. 85
• Parties: The STATE of Oregon, Respondent, v. Zenith Charles WILLIAMS, Jr., Appellant.
• Court: Oregon Supreme Court

Page 679

432 P.2d 679

248 Or. 85

The STATE of Oregon, Respondent, v. Zenith Charles WILLIAMS, Jr., Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton Nov. 1, 1966.

Decided Oct. 13, 1967.

D. S. Denning, Jr., Vale, argued the cause for appellant. With him on the briefs were Schroeder & Denning, Vale.

John N. Hutchens, Dist. Atty., Vale, argued the cause and filed a brief for respondent.

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

O'CONNELL, Justice.

Defendant appeals from a judgment of conviction for the crime of burglary.

Defendant, aged 19, and Steven Lee Caughennower, aged 17, were employed by Pacific Supply Co-op in Ontario, Oregon. On September 25, 1965, it was discovered that the Co-op had been burglarized. Defendant and Caughennower quit their employment with the Co-op on September 30 and were paid on the following day. The Co-op manager notified Officer Edmondson of the Ontario police that defendant and Caughennower had quit and were about to leave town. Edmondson requested Sheriff Rowan to search out defendant and Caughennower and get their names, addresses and physical description. The sheriff stopped defendant and his companion while they were walking down the street in Ontario at approximately 12:30 p.m., October 1st. Upon being asked to identify themselves one of the boys, Caughennower, gave a name other than that which the Co-op manager had given to the police. The sheriff then requested the boys to accompany him to the police station. The sheriff testified that he took them to the police station because they might be runaways since they appeared to be minors, far from their home (Alaska) and without adequate identification. At the police station they were charged with vagrancy on the ground that there was reason to believe that they were lying about their names, and because they appeared to be minors far away from home, without work, and with meager finances. ¹ They were required to turn over their belongings to the police for safekeeping. Among the items turned over was a key to a locker in the Ontario bus station. Upon being questioned, defendant told the police that the locker contained two bags, one belonging to defendant and the other to Caughennower. Defendant gave the police permission to pick up the bags. Officer Edmondson testified that defendant also gave permission to the police to examine the contents of the bags. The police testified that the questioning concerning the key was not for the purpose of investigating the burglary but to establish the identity of the boys. One of the bags contained items stolen from the Co-op. These items were identified by the manager of the Co-op at 3:00 p.m., October 1st.

Defendant was then informed of his constitutional rights for the first time and was interrogated concerning the Co-op burglary. After approximately two and one half hours of questioning defendant confessed (9:00 p.m.). Defendant confessed before he learned that the police had discovered the stolen items. On Monday, October 4, defendant was brought before a magistrate on the vagrancy charge and after pleading guilty to that charge he was sentenced to seven days in jail.

On October 6th, while serving the sentence for vagrancy, defendant was again taken before a magistrate and was charged with burglary. The magistrate informed him of his constitutional rights, whereupon he requested the services of counsel. The trial court denied defendant's motion to suppress the evidence obtained by the police from the bus locker, and overruled defendant's objections to the admission of that evidence.

Defendant argues that the evidence should not have been admitted because the search and seizure were not incident to the arrest for vagrancy and could not be sustained as an incident to an arrest on the burglary charge because defendant was not informed of his constitutional rights prior to the interrogation which eventually led the police to the incriminating evidence. Defendant's confession, it is argued, does not cure the previous illegal search and seizure because it is possible that defendant would not have confessed if the previous disclosure had not been made. Finally, defendant argues that he was not promptly brought before a magistrate and thus ORS 133.550 and 136.545 were violated.

The reason for the arrest and interrogation is disclosed in the testimony of Officers Edmondson and Rowan. Officer Edmondson testified as follows:

'Q. Why were you interested in obtaining the defendant's name and address and various other questions?

'A. I wanted the defendant and the subject that was with him's names, addresses, and physical description, for a matter of record.

'Q. A matter of record for what?

'A. Due to information that I had received that morning, that they were going to leave town, and I merely wanted their names, physical description and addresses in case something should come up concerning this burglary which has been brought up here.

'Q. Therefore, you wanted this information because of the burglary and for no other reason, is that correct?

'A. Correct.

'Q. It wasn't for any other purpose whatsoever that you wanted the information, other than the burglary, is that correct?

'A. That's correct.

'Q. Now, why did you want their names and all of this other information concerning them about this burglary?

'A. During the course of the morning, I had numerous conversations with the--not numerous, but a conversation with the manager of the Co-op and he called and advised me that the two boys that were working for him were leaving town. And at the time I had no knowledge of what he was talking about or what the matter concerned. I called Sergeant Alexander and through talking to him, he told me the story about the burglary, about the investigation.

'Q. And that these two boys had been working at the Vale--or the Co-op Supply?

'A. Yes.

'Q. And that they were suspects in that robbery?

'A. No, Sergeant Alexander, through talking to him that morning, I asked him if he had gone into if these boys had came into the question concerning the burglary and he said 'Yes, they had.' And that it had been decided between him and another officer, I'm not sure who he said now, they were quite certain that the boys weren't involved in it in any way.

'Q. And if they weren't involved, the sole purpose that you wanted to get this information from them was concerning their possible implication in this burglary, is that correct?

'A. Yes.

'Q. Therefore, they were suspects, weren't they? Let's don't quibble over words.

'A. Well, if you want to call them 'suspects,' I suppose you could; I have denied that they weren't.

'Q. All right. Did you tell the Sheriff Rowan to pick these boys up and bring them in?

'A. No, I did not.

'Q. When they came in to your city police office, was that the first time that you had seen the defendant?

'A. Yes, it was.

'Q. At that time did you give him any warning as to his right to remain silent or his right to counsel?

'A. No, I didn't.'

Mr. Rowan, the deputy sheriff, who first questioned the boys, testified as follows:

'Q. Mr. Rowan, did Mr. Edmondson, when he asked you to go talk to the two boys, use the word[248 Or. 91] --he wanted you to get the information, did he use the word, 'suspects'?

'A. No, I wouldn't say that he said, 'suspects' he said that they might be involved in it or something of that nature. I can't say the exact words.

'Q. Did he tell you the purpose for which he wanted you to get the information?

'A. Yes.

'Q. What?

'A. That there had been a break-in at the Pacific Supply Co-op and these two boys had been working there.

'Q. Did he indicate to you why that required knowledge of their names?

'A. Well, mainly in case something come up later that they would have a record and a description of these boys.

'Q. Now, Mr. Rowan, possibly you misunderstood my question, I asked you did Mr. Edmondson indicate to you the reason--I don't want a reason that you are making up on your own or what would be a logical reason, did Mr. Edmondson indicate the reason?

'A. Yes, he said he wanted a record of their description and everything and who they were.

'Q. Then you went on to say just a minute ago, 'in case something else came up later,' did Mr. Edmondson indicate that or did you arrive at that as a logical reason on your own?

'A. I could have arrived at that as a logical reason of my own. I don't recall the exact words Officer Edmondson did say, but it was in general.'

The above testimony of the police officers conclusively establishes that the arrest was not made because defendant was charged with a violation of the vagrancy ordinance but because Officer Edmondson wanted information concerning defendant and his companion 'in case something should come up concerning this burglary.' He admitted that this was the 'sole purpose' for the questioning. It is evident, therefore, that the arrest was not made for a violation of the vagrancy ordinance as the state contends, but for another purpose. We have here another instance of a not uncommon police practice, at least in some states, of using a vagrancy ordinance or statute as a device for arresting a person on the suspicion that he has committed another crime which is then being investigated by the police. ² It has been held that an arrest under such circumstances is illegal. ³

But it is not necessary for us to rest our holding in this case on the illegality of defendant's arrest because his constitutional rights were violated on another ground. The interrogation which led to the disclosure concerning the location of the bags in the bus station locker took place while defendant was in the custody of the police at...