State v. Branch

508 P.2d 254, 13 Or. App. 248, 1973 Ore. App. LEXIS 1140

• Court: Court of Appeals of Oregon
• Decided: April 2, 1973
• Docket: C-72-06-1896 Cr
• Status: Published

Opinions

LANGTRY, J.

This appeal is by the state from an order sustaining a motion to suppress (ORS 138.060(4)) narcotics evidence seized from defendant in a room at the Thunderbird Motel near the Columbia River bridge in Multnomah County.

Sergeant Englert of the Multnomah County Sheriff’s Department answered a call from the night manager of the motel summoning him to investigate a narcotics situation.

At the motel the manager showed him some residue he said a motel maid had given him from a mess she said she had cleaned up in Room 310. The manager also said that a motel telephone operator had told him that the operator overheard a telephone conversation on the Room 310 line which indicated the occupants expected the delivery of narcotics to that room that night and that then they would leave without paying the room bill.

Englert recognized the residue shown him as marihuana, and without verifying the information passed on by the manager with the maid or the telephone operator, he and other officers went to Room 310 and knocked on the door. The officer testified:

“A male, who was later identified as Ellis Mc-Dade, answered the door, and I identified myself as a Sheriff’s narcotics officer and produced credentials. He was in the nude and we went inside the room and we shut the door, and we let him put on some clothes and we had a conversation with him.”

There was no cross-examination about the entry into the room. The above quotation is all there is in the record about whether the entry was made with permission of the occupant. An extinguished marihuana roach was in an ash tray and a prescription bottle with defendant’s name on it was observed.

Some 20 minutes later a knock came at the door. Englert answered and three men, with defendant in the lead, started to enter. Englert identified himself and defendant immediately put a hand into a front pant pocket. Englert seized his hand and the pocket and in an ensuing search the narcotics which are the subject of the motion were seized from the pocket. A skin search of the three entering men disclosed no other contraband.

At the hearing on the motion Englert testified that there was not time to seek a search warrant in view of the information gleaned by the telephone operator. He said that information, the hearsay from the maid and the marihuana residue he was shown were his basis for invading the room. That information, plus the marihuana roach in the room, the pill bottle and the defendant’s gesture to the pocket, taken all together, were his reasons for searching the defendant.

Repeated colloquies between court and counsel occurred during the testimony. At one point the court indicated it thought access to the room was legitimately accomplished; at another, the court said it would not consider the information from the telephone operator, but later indicated it was being considered.

When the court made its ruling this was given as the basis:

“* * * If I put myself in the officer’s place * * * I would have got ahold and talked to the operator, or I would have talked to the maid. I would have gotten the name of the maid before I moved. If I were only assigned to * * * narcotics work where search and seizure is crucial * * * I would have done that so cold that when I moved in it would be there. I would have a reason for Toeing in the room.

“Motion allowed.” (Emphasis supplied.)

These remarks were made after the state had rested its case on the motion. The record does not show that the defendant was given an opportunity to put on a case, and also shows that no request was made to do so.

We agree with the trial court that the hearsay evidence, in the context of this case, was not reason enough to enter the room without a warrant, absent permission to do so. No reason was given by the officers for not talking to the maid and the telephone operator.

A search based on probable canse without arrest is permissible where delay in obtaining a warrant will likely result in a loss of evidence. State v. Murphy, 3 Or App 82, 471 P2d 863 (1970). “ ‘Reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautions man in the belief’ constitutes probable cause to search.” Id., 84. But that does not mean that hearsay as a base for probable cause is a substitute where more direct evidence is available. This is why, in Aguilar v. Texas, 378 US 108, 114 n 4, 84 S Ct 1509, 12 L Ed 2d 723 (1964), the court said:

“To approve this affidavit would open the door * * *. A police officer who arrived at a ‘suspicion,’ * * * that narcotics were in someone’s possession could not obtain a warrant. But he could convey this conclusion to another police officer, who could then secure the warrant by swearing * *

See also State v. Flores, 251 Or 628, 447 P2d 387 (1968).

In McCray v. Illinois, 386 US 300, 307-08, 87 S Ct 1056, 18 L Ed 2d 62, rehearing denied 386 US 1042 (1967), the court said:

“ ‘* * * If the magistrate [when asked to issue a warrant] doubts the credibility of the affiant, he may require that the informant be identified or even produced. It seems to us that the same approach is equally sufficient where the search was without a warrant, that is to say, that it should rest entirely with the judge who hears the motion to suppress to decide whether he needs such disclosure as to the informant in order to decide whether the officer is a believable witness.’ * * * [State v. Burnett, 42 NJ 377, 388, 201 A2d 39 (1964).]”

The trial court’s finding that the hearsay was not a sufficient base for the search should stand.

The question remains whether entry to the room was with permission of the occupant McDade. This is because once the officers were in the room they saw the marihuana roach, and the defendant, when he entered, made the gesture to his pocket, which could have signified the presence of either a weapon or contraband. Hence, if the officers were in the room with permission, subsequent events gave probable cause for the search of defendant.

We have noted above that there is a paucity of information in the record on this question. If a warrantless search is in question, the state has “* * * the burden of proving reasonable cause * * State v. Fisher, 5 Or App 483, 485, 484 P2d 864 (1971). There was only evidence that was conjectural at best on the permissiveness of entry; therefore, the state failed to carry its burden and that is inherent in what the trial court found.

Affirmed.