State v. Chinn , 231 Or. 259 ( 1962 )

GOODWIN, J.

This is an appeal from a conviction under ORS 163.210 (1) (statutory rape). The question is whether certain evidence should have been suppressed upon the timely motion of the defendant.

The challenged evidence was seized under the following circumstances:^①

Some time during the day of October 2, 1960, a twelve-year-old girl was reported missing. Upon her return to her mother the next day, she said she had been taken to a given address in Portland and there subjected to sexual abuse by a man known only as “Ray”. The child next described the events to the city police. An officer thereupon obtained a warrant for the arrest of “John Doe, whose true name is unknown, @ Ray.” No search warrant was sought or obtained. The officer then proceeded to the reported address. Finding no one at home, he kept the apartment under surveillance from about 2:00 p.m. until about 6:00 p.m. Shortly after 6:00 p.m., the officer was joined by another officer. (Police practice was to work in pairs after dark.) After about twenty minutes of waiting together, the officers saw two men enter the apartment. The officers thereupon knocked on the door and were admitted. The occupants of the apartment informed the officers that neither of them was “Ray”, but that “Ray” would be along shortly.

There is some dispute whether the officers were invited to examine the apartment.^② In any event, the officers entered and proceeded to look in the kitchen, bathroom, bedroom, and living room.

During their tour of the apartment, the officers were looking for the defendant. Although they observed various objects, they took no steps to reduce anything to their possession. The girl having reported that she had been given beer, and that “Bay” had taken her picture, the officers asked their temporary hosts if “Bay” had a camera. They were told that he had one. A camera was visible on a shelf in “Bay’s” room and a “six-pack” of empty bottles was on the floor. The officers looked in a closet and observed some bed sheets. When they were satisfied that “Bay” was indeed not at home, the officers sat down to watch television and wait for his return.

When the man answering to the name of “Bay” entered the apartment, he was immediately placed under arrest. The officers at that time proceeded to gather up the objects which they had noticed earlier in the evening. These objects included the empty beer bottles, the camera, and the bed linen. Some of the bottles later were found to be covered with the fingerprints of the prosecutrix. The camera contained undeveloped film which, upon being developed, showed the prosecutrix in the defendant’s bed. The linen contained substances of interest to the prosecution in such cases.

There had been no ransacking of the premises, no rummaging in drawers or desks. The record does not show whether the closet in which the sheets were found was large enough to contain a person. In any event, the officers, having remarked the location within the defendant’s apartment of various items that they considered to be significant, simply gathered them up along with the defendant. The facts, then, are relatively uncomplicated and, as noted, substantially free from dispute.

We need not consider the effect of the invitation, if any, in this case, as the entry was privileged in any event. Both at common law and by statute, officers are entitled to enter where necessary in order to make a lawful arrest for a known felony. ORS 133.320. State v. Duffy et al., 135 Or 290, 298, 295 P 953. Restatement, Torts § 206. The presence of the officers in the apartment was lawful. The issue in this case is the legality of the search for and seizure of the challenged evidence.

Oregon Constitution, Art I, § 9, provides :

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but on probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

We begin, then, with a constitution that protects the home against invasion by the police unless the police first have procured a search warrant. Magisstrates, rather than police officers, are to decide when, and to what extent, the privacy of the home is to be disturbed. See United States v. Lefkowitz, 285 US 452, 454, 52 S Ct 420, 76 L Ed 877, 82 ALR 775 (1932), construing the parallel language of the federal Constitution.

We have previously observed that evidence illegally obtained by police officers may not be used by the state in a criminal prosecution. State v. Hoover, 219 Or 288, 295, 347 P2d 69 (1959); and see Mapp v. Ohio, 367 US 643, 81 S Ct 1684, 6 L Ed2d 1081 (1961). An unlawful search is not made lawful by the evidence of crime which it brings to light. See, e.g., Byars v. United States, 273 US 28, 47 S Ct 248, 71 L Ed 520 (1927).

The notable exception to the demand for a search warrant is, of course, the search made as an incident of a lawful arrest. State v. Randolph, 222 Or 389, 353 P2d 238 (1960); State v. Hoover, supra; and see Marron v. United States, 275 US 192, 48 S Ct 74, 72 L Ed 231 (1927). Only if there is a lawful arrest, however, does this exception apply.

In general, a mere exploratory search accompanied by an arrest upon some convenient charge is held bad. See Collins v. United States, 289 F2d 129 (5th Cir. 1961). See, also, The People v. Wathins, 19 Ill2d 11, 166 NE2d 433 (1960); Johnson v. United States, 333 US 10, 68 S Ct 367, 92 L Ed 436 (1948); United States v. Lefkowitz, supra; Go-Bart Co. v. United States, 282 US 344, 51 S Ct 153, 75 L Ed 374 (1931); 1 Varon, Searches, Seizures & Immunities 201 (1961).

On the other hand, if there is a bona fide arrest for a known offense, and the officers make the search as a true incident of the arrest rather than as an effort to discover some grounds for an arrest, then a fairly intensive search may be reasonable, depending upon all the facts of the case. See United States v. Rabinowitz, 339 US 56, 63, 70 S Ct 430, 94 L Ed 653 (1950); Go-Bart Co. v. United States, supra.

Inasmuch as we believe that certain federal eases under the Fourth Amendment are instructive, at least upon the matter of reasonableness, we have noted, and shall continue to refer to federal cases in outlining some general principles^③ which apply equally under our own constitution:

(1) Purpose of the arrest exception. Search and seizure contemporaneously with, an arrest is the only exception to the constitutional requirement of a warrant prior to a search of one’s home. The exception is necessary to secure the safety of the police and the custody of the prisoner. See Abel v. United States, 362 US 217, 80 S Ct 683, 4 L Ed2d 668 (1960). It is also necessary to enable enforcement officers to gather the fruits of the crime, the implements thereof, and possibly to prevent the destruction of evidence thereof. See United States v. Kirschenblatt, 16 F2d 202, 51 ALR 416 (2d Cir. 1926, Hand, J.), and Weeks v. United States, 232 US 383, 392, 34 S Ct 341, 58 L Ed 652, LRA 1915B 834 (1914). Properly employed, the exception is limited by the purposes for which it has been developed.

(2) Additional limitations. There are other limitations intended to prevent the exception from becoming the rule. The search must be an incident of the arrest, i.e., close to the arrest both in time and in space, viz., in the physical area searched. The only practical test for reasonableness in relation to time and space is to examine the total factual situation in the light of the constitutional right of privacy. We shall discuss time and space in some detail as we consider the facts of the ease at bar.

(3) Intensity of the search. Even if a search is reasonable with reference to time and space, it may be held unreasonable if it is of undue intensity. The nature of the crime for which an arrest is made and the character of the articles seized should have a direct bearing upon the question of reasonableness.^④ So, also, should the knowledge the police may have of the criminal record and habits of the suspect, if relevant under the facts of a given case. Thus, a search in connection with an arrest of an ex-convict for a murder may properly exceed the allowable intensity of a search in connection with a traffic offense. Ordinarily, the seized articles must be in plain view, or, if not, then within the immediate control of the prisoner and accessible without unreasonable exploring, rummaging or ransacking. (However, in an exceptional ease, even a rather thorough ransacking was upheld in Abel v. United States, supra.)

(4) Opportunity to obtain a search warrant. Running through a number of cases, in a manner which makes it difficult to discern whether the court was talking about the reasonableness of the search or the legality of the seizure, or both, is a principle that a search might be held unreasonable if the officers had had ample opportunity to consult a magistrate and obtain a search warrant but failed to do so. See, e.g., Chapman v. United States, 365 US 610, 81 S Ct 776, 5 L Ed2d 828 (1961), and cases discussed therein.^⑤

(5) Articles subject to seizure. Assuming that a given search was a lawful incident of an arrest, not unreasonable with reference to time or space, and not disproportionately rigorous in the context of the crime, the suspect, and all the surrounding circumstances, the next inquiry has to do with the “seizability” of objects discovered in such a search. Not all personal property is subject to seizure by police. As it is this last point which presents the principal issue in the case at bar, it will be discussed in some detail below.

With the foregoing general principles in mind, we return to the facts of the case before us.

I. THE SEARCH

There is no doubt that the search of the defendant’s apartment was lawful. There was a lawful entry made for the purpose of effecting the arrest of a known felon for a known felony, and the arrest was, in fact, accomplished. There is no suggestion that an exploratory search was under way. The police knew whom they wanted and why they wanted him, even though they did not know his last name when they set out upon their mission. There was probable cause to make the arrest, independent of any evidence turned up in the search. In such a case, all the authorities agree that a reasonable examination of the premises under the immediate control of the defendant at the time of the arrest is a lawful incident of the arrest. Beyond this point, however, there is a diversity of opinion.

A. Reasonableness as to Time

One matter in controversy is whether the officers must go through the motions of an actual arrest before they can legally observe environmental objects at the site of the arrest. When the search is not an exploratory one, there is no reason to hold it unreasonable simply because it may have preceded the arrest. Common sense rather than mechanical formality should guide police officers in the course of their duty. In the case at bar, the officers had not been furnished a dependable itinerary for their suspect, and had no idea when or where he might appear. They were not obliged to shut their eyes when told that their suspect was not at home. It was the duty of the officers to make certain. The fact that they observed certain objects which later turned out to have evidentiary value certainly did not make their examination of the area unlawful. If officers enter a house in response to a scream, they need not close their eyes to a smoking pistol or a dead body on the floor, even if the culprit has just left the premises, making it impossible to effect his arrest at that time.

In the case at bar, it matters not that some hours went by between the officers’ admission to the apartment and the arrest. This fact might be significant if the officers had known that they were going to have as much free time on their hands as it turned out that they had, but, so far as the officers knew, the defendant could have returned at any minute. He was expected to do so, and the officers had been so informed by the defendant’s companions. There is nothing unreasonable about the fact that the officers saw what they saw before, rather than after, they had accomplished the arrest of the suspect.

A number of state and federal cases may be cited for the proposition, rejected in State v. Hoover, supra, that a formal arrest must be made before the officers may lawfully observe any property. Such a rule was no doubt designed to prevent exploratory searches, which we agree are lawless and will infect any evidence seized thereby. But the rule should not be carried to the extremes advocated by the defendant. Exploratory searches can be controlled by less drastic action. If the police may not look at visible objects or glance around the room until after they have arrested the accused, then law enforcement has been turned into some sort of a game. We think the essential point is whether the police have made an unlawful exploratory search, or incidentally, and reasonably, have observed evidence found while on the premises to make the arrest.

B. Reasonableness as to Space

A related consideration is the reasonableness of the area searched. When the officers inspected the rooms they had no reason to know that the defendant was not lurldng in one of them, and armed, or poised for flight. Further, the officers might have been confronted by intervention by others at any time. In the course of their dangerous duty, police officers are entitled to look to their own security and to make reasonable efforts to cheek upon the veracity of a suspect’s friends or relatives who say he is not at home. They are entitled to take notice of the kind of people with whom they are dealing. There was nothing about the area examined by the officers which made their examination unreasonable. See Harris v. United States, 331 US 145, 67 S Ct 1098, 91 L Ed 1399 (1947), which upheld a five-hour examination of every room in a house following an arrest for forgery.

C. Intensity of Search

In the case at bar, the camera and beer bottles were in plain sight in a room which was under the control of the defendant. The sheets were in the bedroom closet. Looking in the closet can not be characterized as unreasonable under the facts of this case. In United States v. Rabinowitz, 339 US 56, supra, the officers searched only one room, but their .search was thorough and painstaldng. It included a desk, a safe, and a file cabinet, all without a search warrant, but incidental to an arrest.

D. Opportunity to Obtain a Warrant

It is true that the officers in this case may have had adequate time in which to obtain a search warrant. (They did obtain an arrest warrant.) Admitting that a search warrant might have been sought,^⑥ the failure to obtain the warrant does not necessarily render the evidence inadmissible. United States v. Rabinowitz, 339 US 56, supra, and Harris v. United States, 331 US 145, supra.^⑦ How much the officers knew about the presence in the apartment of personal property used in the commission of the crime before they set out on their errand is problematical. The crime was well enough established to support an arrest, but the officers were not necessarily prepared to swear out a search warrant. Certainly, we cannot say from the record before us that the officers should, on the basis of a most fragmentary description, have guessed, at their peril, what property might be found. A contrary ruling might serve to immunize other valid evidence described imperfectly or not at all. See Marron v. United States, 275 US 192, supra. We cannot say the failure to obtain a search warrant rendered the search or the seizure unreasonable. If the mere failure to obtain a search warrant makes every search and seizure illegal even though a perfectly reasonable accompaniment of a lawful arrest, then the word “unreasonable” has been read out of the constitution.^⑧

The proper test of a reasonable search is, as we have noted, based upon the entire factual situation. Was the search close both in time and space to the arrest? Furthermore, was the intensity of the search commensurate both with the crime and what was known of the criminal? Finally, there is the question of the causal relationship between the arrest and the search. In each case, the trial judge must determine whether the officers went to the place to make a lawful arrest, and in mailing it looked for evidence lawfully subject to seizure, or whether the officers used a pretended arrest for one offense as a Trojan horse in order to obtain entry, only to prosecute for some greater crime after finding sufficient evidence to justify their belief in the defendant’s probable guilt of the greater crime. The first kind of search is incidental to an arrest and is lawful; the second is a fishing expedition and is as odious as the general warrant of antiquity. As we have seen, the arrest and the search we have before us were of the legitimate variety.

II. SEIZURE

We hold that the limits of reasonableness placed upon the search, and which we have discussed above, are equally applicable to seizures. Conversely, objects observed during a search reasonable as to space, time, and intensity may legitimately be seized provided that seizure is not prohibited by some other rule of law. We turn, then, to a consideration of the final problem presented by the facts of this case: Although the search was, as noted above, reasonable and proper, was the seizure of the camera, the beer bottles and the bed sheets infected by some vice which requires us to exclude these items as evidence?

A. Articles Subject to Seizure—Contraband, Documents

The articles seized in the case at bar are not contraband, and the vast array of state and federal authorities justifying seizure of stills, mash, narcotics, and gambling paraphernalia is of no appreciable help in a rape case. See, e.g., Draper v. United States, 358 US 307, 79 S Ct 329, 3 L Ed 327 (1959) (narcotics). Nor can we gain much enlightenment from cases which discuss the seizure of documents having to do with the currency, revenue, ration stamps, selective service, and ldndred matters of federal concern. Cf. Harris v. United States, 331 US 145, supra, a selective-service violation, and Gouled v. United States, 255 US 298, 41 S Ct 261, 65 L Ed 647 (1921), a conspiracy to defraud the government.^⑨ The case before us is likewise to be distinguished from the great leading decision on incriminating documents, Boyd v. United States, 116 US 616, 6 S Ct 524, 29 L Ed 746 (1886), and the cases following it, in which the privacy of one’s personal papers is protected by both the Fourth and the Fifth Amendments against unreasonable seizure. See Annotation, 129 ALR 1296.

B. Effect of Warrant Buie upon Seizure without Warrant

We take it as settled that evidence which lawfully could be seized under a warrant ought also to be seizable upon a lawful arrest without a warrant. The converse of this proposition seems equally reasonable. Thus, evidence which could not lawfully be seized under a warrant should not be subject to seizure without one. The foregoing proposition has been expressed probably no better anywhere than by Judge Learned Hand in United States v. Kirschenblatt, 16 F2d 202, supra. In that case the court was dealing with papers, but the rule there laid down would apply to all personal property. Evidence, merely as evidence, cannot be taken upon arrest if the same evidence could not have been taken under a search warrant.^⑩ In other words, a privilege to enter the home to make an arrest does not draw after it a privilege to seize objects merely because they supply evidence of crime. Gouled v. United States, supra. The things seized must be things which would have been subject to the law’s demand upon a proper showing before a magistrate.

C. Statutory Restrictions

Virtually every American jurisdiction has a statute restricting the type of evidence which may be seized under a warrant. The majority of these jurisdictions have a provision similar to ORS 141.010, which reads as follows:

“A search warrant may be issued upon any of the following grounds:

“(1) When the property was stolen or embezzled.

“(2) When the property was used as the means of committing a felony.

“(3) When the property is either in the possession of a person who intends to use it as the means of committing a crime or in the possession of another to whom such person delivered it for the purpose of concealing it or preventing its being discovered.”

We note in passing that the Federal Rules of Criminal Procedure contain a provision (Rule 41 (b)) which is substantially similar to ORS 141.010. These statutes restrict the type of evidence which is subject to seizure within the safeguards of the search warrant. The type of evidence which may legitimately be seized extends only to property which does not belong to the possessor or whose right to possession he has forfeited in some manner recognizable under the law.^⑪ Such forfeiture may be brought on either by using or planning to use the property in the commission of a crime. The ancient property notion that the use of an object for an evil purpose renders it forfeit seems to have retained some of its force in this field, although this rationale is not without controversy.^⑫

It is totally unnecessary to decide in this case whether objects other than those described in ORS 141.010 constitutionally can be made subject to seizure under a warrant. We have to work with the statute now in force. Earlier decisions of this court have suggested that evidentiary objects not covered by the search-warrant statute might be subject to seizure without a warrant where the search is made as an incident of an arrest, but the effect of ORS 141.010 upon such a seizure does not appear to have been decided. See, e.g., State v. Broadhurst, where part of the search was consented to, snpra note 2; and State v. Gram, 176 Or 577, 160 P2d 283, 164 ALR 952 (1945), an involuntary blood-test question. The present statute does not authorize the seizure of property other than the fruits and implements of crime. ORS 141.010. We are concerned here, therefore, with statutory, rather than constitutional, “seizability”. We express no opinion upon the permissible scope of legislation in this field.

To recapitulate, the police, with or without a warrant, are limited in their seizures by the statutory grounds for a search warrant. Under a warrant, the police may seize only a limited class of property. As an incident of arrest, the officers likewise may take only objects which could have been taken under a search warrant. Thus, the seizability of the bottles, camera, and bed sheets in this case depends upon whether a warrant could have issued for their seizure.

Under ORS 141.010, the only category applicable to the case at bar is that of subsection (2), “property used as the means of committing a felony.” The articles seized were used in the commission of the crime. The giving of beer to a twelve-year-old girl was, on the record in this case, instrumental in the commission of the crime denounced by ORS 163.210 (1). Some bed sheets were used in the act of intercourse. It would be a matter for the jury’s determination on the entire record whether the particular sheets were used in the particular acts complained of. Likewise, the camera was in fact used during the commission of the crime charged. It is no more necessary to say the child was raped with a camera than to say a calf was stolen with a running iron. The issue is whether the instrument was used in the commission of the crime. To hold otherwise would be to prohibit the seizure of any evidence of the crime of rape or similar crimes. The point of the statute is that only those objects actually used in the commission of a crime may be seized under subsection (2) of OBS 141.010.

Some dismay is expressed at the idea that a camera can be used in the commission of the crime of statutory rape. Since the crime ordinarily involves taking advantage of a child, however, and does not necessarily, or even ordinarily, involve force, we believe the language of this court in connection with the crime of contributing to the delinquency of a minor is instructive in this case. “The arts of seduction are so variant and insidious, especially when applied to different individuals, that it is impossible as a matter of law to lay down any rule on the subject of what will or will not invariably tend to produce delinquency in all minors * * State v. Stone, 111 Or 227, 235, 226 P2d 430 (1924).

The fact, if it is a fact, that the taking of pictures is neither common nor essential to the crime of rape is irrelevant. It is sufficient to observe that the camera was used in the debauchery of the child. There is no need to canvass the other varieties of bizarre behavior that may appeal to a diseased mind. It might be pointed out that if the crime had been forcible rape, and the victim had been bound, the binding material would be treated as property used in the commission of that crime, no matter how bizzare, in the abstract, its particular employment may appear. See State v. Delaney, 221 Or 620, 651, 332 P2d 71, 351 P2d 85 (1960).

We hold that ORS 141.010 (2) is broad enough to have justified a magistrate in listing the challenged articles in a search warrant if the officers had applied for a warrant. Accordingly, the articles were, subject to the law’s demands, were properly found and properly-seized. There was no error in receiving the evidence.

Affirmed.

① While some of the facts are disputed, as will be seen, there was no substantial controversy on the facts which appear to be material. In those particulars in which the testimony of the defendant contradicts that of the police, the defendant’s version of the facts may be accepted without changing the legal effect thereof. The difficulty which arises in determining the facts in cases of this character could, for the most part, be- eliminated if the trial judge would make findings of fact on all contested evidence underlying his ruling upon the reasonableness of a seizure in a given case.

② In the lower court the state urged in part that the search was founded on the consent of one of the tenants of the apartment. See State v. Broadhurst, 184 Or 178, 251, 196 P2d 407 (1948). The trial court, as noted, made no findings. As the element of consent is the only fact in substantial dispute, however, and as that element is immaterial in this case, we can treat the lack of findings as non-prejudicial.

③ See Comment, 45 J Crim L, Crim and Police Sci, 51, 59 (1954).

④ Jackson, J., dissenting in Brinegar v. United States, 338 US 160, 183, 69 S Ct 1302, 93 L Ed 1879 (1949):

"* * * if we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search, every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the. only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.”

⑤ In some of these cases the search was invalid because it was exploratory, rather than incidental to an arrest. In McDonald v. United States, 335 US 451, 69 S Ct 191, 93 L Ed 153 (1948), the police had kept a suspect under surveillance for two months. They finally entered his house without a warrant when they thought they heard an adding machine in operation. After searching other rooms in vain, an officer looked through a transom into a bedroom and saw the paraphernalia of an illicit numbers operation. Thereupon an arrest was made and the evidence of the illegal activity was gathered by the police. See, also, Johnson v. United States, 333 US 10, supra, where officers smelled opium, then entered the room and searched for evidence of illegal possession of the drug. Upon finding such evidence, they made an arrest which they would have had no reason to make if they had not found the incriminating evidence.

⑥ On this point, the state did not admit that a warrant could have been obtained, but, on the contrary, argued that ORS 141.010 does not authorize the issuance of a warrant in cases of this character.

⑦ Compare Trupiano v. United States, 334 US 699, 68 S Ct 1229, 92 L Ed 1663 (1948), where everything about the arrest was fair and regular, but the seizure of contraband liquor in open view was held bad for want of a search warrant. Trupiano was overruled in the Rabinowitz case, and the Harris rule apparently prevails again in the federal system. See Abel v. United States, 362 US 217, supra, an espionage case which cited Harris, but relied upon a purported difference between an “administrative” arrest and a criminal arrest.

⑧ For a discussion of the relationship between the 'reasonableness clause and the warrant clause of the Fourth Amendment, see Search and Seizure in The Supreme Court: Shadows on the Fourth Amendment, 28 Chi L Rev 664, 678 (1961).

⑨ See Comment, 20 U Chi L Rev 319 (1953).

⑩ The so-called “mere evidence” rule does not necessarily have a Fourth-Amendment rationale. In the Gouled case, the court talked of the use of a person’s private papers as evidence against him as a violation of the self-incrimination proscription of the Fifth Amendment. We have no occasion to pass upon such questions in this case. For a comparison of the fuzzy boundary between “mere evidence” (not subject to seizure) and implements of crime (subject to seizure) see United States v. Lefkowitz, supra, and Marron v. United States, supra. In the Lefkowitz case, the search was held to be exploratory and therefore bad. Perhaps this accounts for the additional language that “unoffending” property was not subject to seizure in that case. The articles seized in the two cases were virtually of the same class.

⑪ 1 Varon, Searches, Seizures and Immunities 219 (1961) discusses the various statutory rules. State courts do not appear to have adopted the federal rule in sufficient number to establish a trend. See cases noted in Comment, 20 U Chi L Rev, supra note 9 at 320.

⑫ It has been suggested in some quarters that neither the privacy nor the property rationale can be the exclusive explanation of the force behind the distinction between the kinds of goods which are subject to seizure and the kinds which are not. Perhaps in this field the courts have lacked a stationary target. See discussion in 28 U Chi L Rev 664, supra note 8.