State v. McCoy

437 P.2d 734, 249 Or. 160, 1968 Ore. LEXIS 628

Opinions

LUSK, J.

Defendant has appealed from a conviction of the crime of rape. The sole question is whether the trial court erred in denying defendant’s motion to suppress incriminating evidence found by the police in defendant’s automobile. Search of the automobile and seizure of the evidence were without a warrant and, defendant contends, violated his rights under the Fourth Amendment.

The prosecutrix is a Cuban refugee who was living in Portland at the time of the alleged crime. According to her testimony the defendant, whom she had never seen before, came to her apartment, lured her into his automobile with a trumped-up story that he was a doctor and she was required to submit to a medical examination, and drove her out into the country and there raped her in the automobile. Defendant, as a witness in his own behalf, admitted sexual intercourse with the woman but testified it was with her consent.

On the day of the occurrence the prosecutrix complained to the Portland police and gave them a description of the automobile and its license number. With this information the police were able to identify the defendant as the owner of the automobile and locate his residence and business address. They secured a warrant for his arrest on a charge of rape and arrested him in his shop in Portland shortly after 5:30 p.m. Defendant’s automobile was at that time parked in the street about ten feet from the shop. The officers placed the defendant in a police car, which was parked directly behind the defendant’s car, and in his presence radioed for a tow truck. The officers arrived with the prisoner at the police station about 6:30 p.m. and the defendant’s car arrived at the police garage at 6:35 p.m. and the search of the car commenced approximately at that time. The incriminating evidence uncovered by the search consisted of human hair, like that of the prosecutrix, found in vacuum sweepings, and a rag with semen on it which the prosecutrix testified the defendant used to wipe himself with after he raped her.

At the hearing on the motion to suppress one of the officers testified that their chief interest was in fingerprints, that it was raining that evening and the car was taken to the garage to place it “out of the weather, the elements,” and that they seized the car because “I felt this was an instrument of the crime,” and “ [t] owed it in as evidence.”

It is now firmly established that in determining the validity of a warrantless search “[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable”: United States v. Rabinowitz, 839 US 56, 66, 70 S Ct 430, 94 L ed 653, 660 (1950). See, also, Cooper v. California, 386 US 58, 59, 87 S Ct 788, 17 L ed 2d 730 (1967); State v. Ramon, 248 Or 96, 432 P2d 507 (1967); State v. Frazier, 245 Or 4, 418 P2d 841 (1966). The “standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application”: Ker v. California, 374 US 23, 33, 83 S Ct 1623,10 L ed 2d 726 (1963); whether a search is reasonable depends upon the facts and circumstances of each case: Cooper v. California, supra, 386 US at 59; Harris v. United States, 331 US 145, 150, 67 S Ct 1098, 91 L ed 1399 (1947); Go-Bart Co. v. United States, 282 US 344, 357, 51 S Ct 153, 75 L ed 374 (1931).

Contrary to earlier rulings, it is now held that mere “evidentiary materials,” as distinguished from the fruits of, or implements used to commit, a crime are among the objects for which a search may be made: Warden, Maryland Penitentiary v. Hayden, 387 US 294, 87 S Ct 1642, 18 L ed 2d 782 (1967).

We deal here with the search of an automobile. In the Cooper case the court said that “searches of cars that are constantly movable may make the search of a car without a warrant a reasonable one although the result might be the opposite in the search of a home, a store, or other fixed piece of property.” 386 US at 59. As Chief Justice Weintraub, speaking for the court, said in State v. Boykins, 50 NJ 73, 232 A2d 141, 145 (1967): “No discussion of crime can ignore the automobile, or the fact that the incidence of crime is hinged directly to the amount of privacy we accord it.”

It has long been recognized that a warrantless search may be made as an incident of a lawful arrest. State v. Chinn, 231 Or 259, 266, 373 P2d 392 (1962), and cases there cited. See Annotation, 4 L ed 2d 668. Traditionally, such a search has been said to be necessary in order to secure the safety of the police and the custody of the prisoner, as well as to enable the police to gather the fruits and implements of the crime and to prevent the destruction of evidence. State v. Chinn, supra, 231 Or at 267. In the recent ease of Preston v. United States, 376 US 364, 84 S Ct 881, 11 L ed 2d 777 (1964), the court said:

“The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime —things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control.” 376 US at 367.

It will be noticed that the court spoke of “contemporaneous searches.” Similarly, this court in the Chirm case said that the search must be “close to the arrest both in time and in space, viz., in the physical area searched.” 231 Or at 267.

Defendant relies upon the Preston case. This was a prosecution for conspiracy to rob a bank. Preston and two companions were arrested by the police in a parked automobile at three o’clock in the morning after the police had received a telephone complaint that they had been there since ten o’clock the evening before. They were arrested for vagrancy, searched for weap ons and taken to the police station. The ear, which had not been searched before, was taken to a garage where it was searched after the men had been booked at the station. Two loaded revolvers and other articles of an incriminating character were found in the ear and admitted in evidence on the trial over timely objections of the petitioner.

In an opinion by Mr. Justice Black a unanimous court said that the justifications, above referred to, for a warrantless search were absent where a search is remote in time or place from the arrest, and held that “the search was too remote in time or place to have been made as incidental to the arrest and * * * therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment * * 376 US at 368.

The impact of Preston must be considered in the light of the decision three years later in Cooper v. California, supra. Again the opinion was written by Mr. Justice Black, but the court divided five to four.

Cooper was prosecuted in a California state court for selling heroin. A statute of California provided that any officer making an arrest for narcotics violation shall seize and deliver to the State Division of Narcotic Enforcement any vehicle used to transport or facilitate the possession of narcotics “to be held as evidence until a forfeiture has been declared or a release ordered.” The police, having probable cause to believe that defendant’s automobile was being so used, impounded it upon his arrest, and a week later searched it without a warrant. Incriminating evidence was found. The validity of the search and seizure was sustained.

The prosecution conceded, and the court appears to have accepted the concession, that the search was not incidental to an arrest. The Supreme Court agreed with the lower court that “ ‘lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it.’ ” But the court held that “the reason for and nature of the custody may constitutionally justify the search” and distinguished Preston because the arrest there was for vagrancy and the arresting officers took the car simply because they did not wish to leave it on the street. The court said: “The fact that the police had custody of Preston’s car was totally unrelated to the vagrancy charge for which they arrested him. So was their subsequent search of the car.” On the other hand, in the case then before the court, the officers seized Cooper’s ear because they were required to do so by state law and seized it because of the crime for which they arrested Cooper, and the subsequent search was “closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained.” 386 US at 61.

Mr. Justice Douglas, dissenting, argued that the majority either had overruled Preston, sub silentio, or that the decision was “a watered-down version” of the Fourteenth Amendment because the case concerned the application of the Bill of Rights to the states.

Viewed in the light of Cooper, Preston does not support the defendant’s position, for the central facts in Preston were that the defendant was arrested for vagrancy and both the purpose of the search and the incriminatory evidence found and seized and introduced in evidence were totally unrelated to that offense, as was the purpose of the officers in towing the car away. On the other hand, Cooper establishes that a search of an automobile, though remote in time and place from the arrest, may be constitutional where the officers have taken lawful custody of the automobile for a purpose intimately connected with the crime for which the arrest is made.

Here the officers took custody of the automobile as an instrumentality of the crime, as evidence (photographs of it were introduced in evidence without objection on the trial) and to search it for incriminating evidence of the crime for which the defendant was arrested, and which the officers had reasonable cause to believe the automobile might contain. There can be no question about the officers’ good faith, no room for a contention that their “conduct was inconsistent with their declared purpose”: Harris v. United States, supra, 331 US at 153. Assuming they had time to secure a search warrant, they were not bound to do so, “because the search was otherwise reasonable”: United States v. Rabinowitz, supra, 339 US at 64.

In view of the nature of the crime charged, to vacuum the car was reasonably considered an essential part of the search — not to have done so might, indeed, have been dereliction of police duty. A vacuum cleaner, it is true, might have been brought' to the scene of the seizure for that purpose, but we think this was not required. To tow the ear away from a city street was a proper precaution to “insure against any third party’s tampering with the evidence,” People v. Webb, 56 Cal Rptr 902, 424 P2d 342, 355 (1967), and afforded the officers “better conditions for the search,” State v. McCreary, SD, 142 NW2d 240, 247 (1966). See, also, State v. Anderson, Iowa, 148 NW2d 414, 417 (1967).

The automobile, as we have said, was not only evidence, but, as well, an instrumentality of the crime: United States v. Doyle, 373 F2d 875, 877 (2d Cir 1967) per Medina, J.; Harris v. Stephens, 361 F2d 888 (8th Cir 1966); Johnson, etc. v. State, 238 Md 528, 209 A2d 763 (1965); Abrams v. State, 223 Gra 216, 154 SE2d 443 (1967); State v. Anderson, supra. Cf. State v. Chinn, supra, 231 Or at 278. As such, the automobile was subject to seizure aud, being in plain sight, no search for it was required, State v. Riley, 240 Or 521, 523, 402 P2d 741 (1965); State v. Johnson, 232 Or 118, 122, 374 P2d 481 (1962). The Karris, Johnson and Abrams cases were prosecutions for rape; the Anderson case for possession of burglar’s tools. In these cases searches held valid were made after the cars were removed from the scene of the arrest and the defendant plaeed in jail. Cases having similar circumstances in which the searches were sustained are cited in the margin.

Footnotes

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In Johnson v. State, supra, the search was made several days after the arrest of the defendant and seizure of the ear. The court said:

* * However, unlike Preston, in this case, the automobile, according to the information previously given by Mrs. Haymaker which the officers had reasonable cause to believe was true, had been used as an instrument in the perpetration of the alleged crime; Mrs. Haymaker stated that she had been raped in the back seat. * * * Where there has been a valid arrest, property found in connection with the arrest which tends to establish the commission of the crime charged may be held by the officers for evidence. If the arrest is lawful, the seizure is lawful, if the property is of an evidentiary nature. (Citing authorities.) The automobile itself could have been offered in evidence at the trial. Having lawfully seized it, the police had the right to examine it after the seizure for evidence in connection with the crime. # * *” 238 Md at 539-540.

In none of the cases just referred to were the traditional grounds for justifying a warrantless search, i.e., the need to secure the safety of the officers and the need to prevent the destruction of evidence, present. But we agree with the Supreme Court of California that these justifications are not exclusive. “Rather, in the language of Preston they are simply ‘examples’ of circumstances which may lead to the conclusion that the search as a whole was reasonable.” People v. Webb, supra, 424 P2d at 350. In Crawford v. Bannon, supra, 336 F2d at 507, the court used similar reasoning, and the numerous decisions sustaining warrantless searches following arrest, notwithstanding absence of the “examples,” evidence a substantial body of judicial agreement with this view. The matter was well put by Circuit Judge McGowan, dissenting in Bowling v. United States, 350 F2d 1002 (DC Cir 1965), before the decision in Cooper was rendered. He said:

“Preston, it has always seemed to me, is to be read in the light of the central fact that the arrest made there was for vagrancy. It was only after (1) the arrestees had been fruitlessly questioned for some time at the police station, (2) the car had been placed in a garage, and (3) an officer sent to examine it had come back with two loaded revolvers found in the glove compartment, that police were dispatched to the garage with instructions to break into the trunk of the car. It was what was found there that connected the arrestees with the crime of which they were convicted — conspiracy to commit a hank robbery. Thus, the search in Preston was used to convict persons arrested for vagrancy, not of having robbed a bank but of intending to do so in the future. It may well be that this all evokes disquieting echoes of what the framers of the Fourth Amendment had in mind, and that the Supreme Court was right in requiring a greater degree of circumspection in the use of search warrants in these circumstances, although the essential rationale of the holding impresses me as lying much deeper than what the Court had to say about the dangers of escape or of assault with concealed weapons. In Adams v. United States, 118 U.S. App. D.C. 364, 336 F.2d 752 (1964), cert. denied, 379 U.S. 977 (1965), we looked to what was done in Preston rather than to what was said, and we upheld a warrantless search presenting neither such danger. See also Price v. United States, No. 18,901, decided June 10, 1965. I think we should do so here because, on the facts of this record, I do not think the search was so remote in either time or place from the arrest as to be invalid.

“As the Supreme Court also said in Preston, ‘even in the case of motorcars, the test still is, was the search unreasonable.’ With the one overriding danger about which the Supreme Court was really concerned in Preston wholly absent here, I would have thought the answer to be clear on these facts. The authors of the Fourth Amendment have been spared the ordeal of living in a highly motorized 20th Century, but they, as men not given to ordering the affairs of life by absolutes, would surely have recognized some of its practical necessities.” 350 F2d at 1005.

Adams v. United States, 336 F2d 752 (1964), cited by Judge McGowan, did indeed hold valid a search as incident to an arrest, notwithstanding, as the court conceded, that when the search was made “there was no danger from unseen weapons or of evidence dis appearing from the locked trunk of the car.” 336 F2d at 753.

The search in Cooper v. California was not sustained as an incident of a lawful arrest, for it was not made until a week later. It would seem, therefore, that in the case before us, since the automobile was lawfully seized and held as evidence, its search, under the rationale of Cooper, would be sustainable if made at any time while so held. But we need not go so far. The search here was valid as incident of a lawful arrest. That the defendant was not arrested in his car or as he was approaching it, but in his place of business some ten feet distant from the car, is a matter of small moment. Drummond v. United States, 350 F2d 983, 987 (8th Cir 1965); United States v. Francolino, 367 F2d 1013,1018 (2d Cir 1966).

The search was not too remote in time or place. It followed the arrest within about an hour immediately upon the arrival of the ear at the police garage. It was “substantially contemporaneous with the petitioner’s arrest,” Crawford v. Bannan, supra, 336 F2d at 506; Broker v. United States, supra, 294 F2d at 862; Bartlett v. United States, supra, 232 F2d at 139. “The car was obtained incident to and contemporaneous with Trotter’s arrest and the subsequent search of the car two hours later was merely part of one continuous act, * * Trotter v. Stephens, 241 FS 33, 41 (ED Ark 1965), affirmed sub nom. Harris v. Stephens, supra. See, also, Arwine v. Bannan, 346 F2d 458, 470-471 (6th Cir 1965), cert. den. 382 US 882, 86 S Ct 175, 15 L ed 2d 123.

We conclude that this was a reasonable search. Like the Supreme Court of New Jersey in State v. Boykins, supra, “[w]e see no trace of the general warrant. The place to be searched is specific and small— an automobile,” 232 A2d at 146. Judicial sanction of what was done by the police here is no threat to the privacy of law-abiding citizens and can have no tendency to leave them “at the mercy of the officers’ whim or caprice,” Brinegar v. United States, 338 US 160, 176, 69 S Ct 1302, 93 L ed 1879 (1949). On the contrary, it is but to give due weight to the competing value of “the right of the individual to live free from criminal attack in his home, his work, and the streets.” State v. Davis, 50 NJ 16, 231 A2d 793, 796 (1967).

The judgment is affirmed.

Boyden v. United States, 363 F2d 554 (9th Cir 1966); Price v. United States, 348 F2d 68 (DC Cir 1965); Crawford v. Bannan, 336 F2d 505 (6th Cir 1964); Fraker v. United States, 294 F2d 859 (9th Cir 1961); Bartlett v. United States, 232 F2d 135 (5th Cir 1956); People v. Webb, supra; People v. Robinson, 62 Cal 2d 889, 44 Cal Rptr 762, 402 P2d 834 (1965); Stewart v. People, Colo, 426 P2d 545 (1967); State v. Wood, 197 Kan 241, 416 P2d 729 (1966); State v. McCreary, supra; State v. Houchin, Mont, 428 P2d 971 (1967).