State v. Wesson

594 P.2d 429, 40 Or. App. 99, 1979 Ore. App. LEXIS 2095

• Court: Court of Appeals of Oregon
• Decided: May 7, 1979
• Docket: C 76-09-13171, CA 10949
• Status: Published

Opinions

GILLETTE, J.

Defendant appeals from his conviction by the court for burglary in the first degree, ORS 164.225. He assigns as error the trial court’s denial of his motion to suppress (1) evidence seized after his arrest and (2) results of a palm print comparison linking him to the crime for which he was convicted. We affirm.

The circumstances of defendant’s arrest may be summarized as follows. On the morning of August 10, 1976, officers noticed a small foreign car with its doors and storage compartment open, parked adjacent to a house and illegally blocking an alley. Upon driving into the alley and parking their marked police car, the uniformed officers noticed stereo equipment around the car and two men — one of whom was the defendant — next to the car who appeared to the officers to be loading the car.

At this point the officers suspected that the two men were in the process of stealing stereo equipment. One officer saw defendant pick up some stereo equipment and proceed toward the back yard of the house, and asked him to stop so that they could talk for a minute. Defendant looked at the officer but did not respond, instead proceeding toward the gate to the back yard. There followed repeated requests to the same effect which defendant ignored as he moved in a "hurried motion” into the house.

The officer followed defendant into the house, noticing stereo components in plain view on the floor. After. hearing some commotion in the front of the house, the officer drew his weapon and told defendant to come out slowly with his hands where they could be seen. Defendant complied, but refused to answer the officer’s inquiries about the stereo equipment. Around this time defendant’s brother (who had been the other man at the car), followed by the other officer, entered the house, noisily challenged the officers’ right to be there, and subsequently assaulted the officers. After this altercation, defendant and his brother were arrested. It was later discovered that defendant’s brother was helping defendant move into the house, which is owned and lived in by members of their family.

One of the officers had noticed from where he was standing inside the house that the serial number on one of the speakers was partially obliterated. After the arrest, the stereo equipment was seized and the speaker was discovered to have been taken in a burglary nearly two years previously. A latent palm print taken at the scene of that burglary was matched against defendant’s. After the trial court denied defendant’s motion to suppress the stereo equipment and the palm print comparison, defendant stipulated to the facts and was found guilty of burglary.

The parties appear to be in agreement that, if the officer had a right to enter the defendant’s house, the observations made thereafter would fall within the "plain view” exception to the requirement that searches and seizures be pursuant to warrant, so that the resulting seizures would be lawful. The crucial question thus becomes: did the officer lawfully enter the house? These are two theories upon which the entry could be justified: (1) the officers had probable cause to arrest defendant, and so fresh pursuit into the house was valid; or (2) the authority to "stop” includes the authority to reasonably pursue one who declines to stop, even if such pursuit takes one into a house. We do not reach the second theory because we find the officers’ actions here valid under the first.

A police officer may arrest a driver for a parking violation. The evidence here showed that a parking violation had occurred: the car was parked in such a manner as to block the alleyway. See ORS 487.575.¹ Moreover, the car doors had been left open in a manner blocking approaching traffic. This, too, was a traffic infraction for which the driver could be arrested.² The only real question is whether there was probable cause to arrest defendant. Probable cause is "a well warranted suspicion” justifying a reasonable man in the belief that a certain set of facts exists. State v. Basler, 24 Or App 723, 727, 546 P2d 1084 rev den (1976). We think that the improper parking of the car with its doors left open, the defendant’s presence in the immediate vicinity of the car, the officers’ appearance in uniform and in a marked patrol car, and the defendant’s retreat from the area despite an officer’s request that he halt are facts rising to the level of "well warranted suspicion.”³ Having probable cause to arrest, the officer had a right to enter the house to effect the arrest. ORS 133.235(5). Since defendant was aware the officer was after him, the officer had authority to enter the house without a warrant. See, e.g., State v. Girard, 25 Or App 169, 548 P2d 505, rev’d on other grounds, 276 Or 511, 555 P2d 445 (1976).

The fact that the officer had another justification in mind does not alter his right to make an arrest on the facts stated. See State v. Carter/Dawson, 34 Or App 21, 578 P2d 790, rev allowed 284 Or 521 (1978). Cf. State v. Cloman, 254 Or 1, 456 P2d 67 (1969).

Affirmed.

1 Where parking is a violation of a state statute, it is a Class D traffic infraction. See ORS 487.580. An officer may either arrest or cite for a Class D infraction. See ORS 484.100.

The dissent argues that the first of these statutes, ORS 487.575(1), is inapplicable to the present circumstance. Although it would be sufficient that the other statute — ORS 487.630 — is applicable, this statute is applicable as well. The phrase "upon a roadway outside a business or residence district” is, in our view, merely intended as an acknowledgment that automobiles may be parked on a roadway, i.e., next to a curb, in front of businesses or residences because such use of the roadway is customary. Alleys, too, are roadways. ORS 487.005(1). But alleys behind or beside businesses or residences are, in our view, roadways "outside a business or residence district” because parking in them does not provide the same kind of access that parking on streets does.

2 ORS 487.630. See supra note 1.

3 The fact that defendant was wearing a red and black robe, pants, and pink curlers covered by a hairnet detracts at least slightly from the likelihood defendant was the driver of the car, and might even be said to make the other person present the more logical suspect at the moment the police arrived. Even assuming, however, that the police could only apprehend the most logical of two suspects — a proposition we find very dubious — defendant’s very unwillingness to stop even momentarily to talk tipped the scales in his direction and made him the most logical suspect.