State v. Somfleth , 8 Or. App. 171 ( 1972 )

492 P.2d 808 (1972)

STATE of Oregon, Appellant,
v.
Thomas Lyle SOMFLETH, Respondent.

Court of Appeals of Oregon, Department 1.

Argued and Submitted October 27, 1971. Decided January 14, 1972.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

John A. Pickard, Portland, argued the cause for respondent. With him on the brief were Dardano, Mowry & Hanson, Portland.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

FORT, Judge.

Defendant was indicted for unlawful possession of the dangerous drug secobarbital. ORS 475.100. He moved to suppress as evidence eight capsules of secobarbital found on his person at the time of his arrest on the ground that they had been illegally seized. After a hearing, the trial court granted defendant's motion. The state appeals, pursuant to ORS 138.060(4).

The relevant facts are undisputed and are as follows. On the morning of August 17, 1970, a pharmacy in Forest Grove, Oregon, was broken into, and varieties of dexedrine and secobarbital were taken. On the evening of the same day, Officer Miller of the Forest Grove police department was contacted by an informant, whom the trial court properly found to be reliable. From his conversation with the informant, Officer Miller concluded that the defendant "had some information as to the state of [the] break-in." Officer Miller also knew that the defendant had been convicted of a drug law violation in California.

Shortly after 1:00 a.m. on August 18, 1970, Officers Miller and Ely came upon an automobile stopped in the middle of a street in Forest Grove. Defendant was the only passenger in the vehicle, and one Donald Dedrickson was the driver. As the officers drove up behind the automobile, Officer Miller observed the defendant outside the automobile, "apparently stomping something on the pavement." Defendant got back into the car as the officers' vehicle approached. Both officers left their vehicle and walked to the stopped car. Officer Ely asked the driver and defendant for identification. The driver produced his. The defendant did likewise, but only after difficulty in locating his billfold and papers. While Officer Ely walked back to the police car to call for a records check, Officer Miller moved to the right side of the vehicle. There he found a broken hypodermic needle^[1] lying on the pavement in the area where he had previously seen the defendant.

In response to their request for a records check, the officers were advised over police radio that defendant was wanted by the military authorities for being absent without leave from the United States Marine Corps. At Officer Ely's request, the police dispatcher verified the information with the Federal Bureau of Investigation in Portland and with Camp Pendleton where defendant had been stationed, and reported to the officers the confirmation which she received.

The police thereupon took the defendant into custody telling him that "a hold was placed on him by the military, and he would have to come with us." Defendant protested, showing the officers purportedly valid leave papers which he claimed verified his assertions that he was properly on emergency leave. Defendant, nevertheless, was ordered out of the vehicle. Upon making his exit he nearly fell, his walk was very uncertain and his speech was slurred and somewhat incoherent. The defendant told the officers that he had been drinking all day, although Officer Miller did not smell any alcohol on or about him.

After observing his physical condition and while he was standing outside the car, he was searched. No weapons were found on his person but nine red capsules were found in the defendant's right front pocket, and upon recognizing them as secobarbital, Officer Miller seized the capsules.

Defendant was taken to the Forest Grove police station and then to the Washington County jail, where he was held for the military authorities. Sometime after noon on August 18, it was confirmed that, contrary to the information received earlier, defendant was not absent without leave. He was thereupon released from jail. That afternoon, however, he was arrested for unlawful possession of secobarbital previously found in his pocket.

The issue here raised by plaintiff's sole assignment of error is whether the search which produced the capsules was lawful. A reasonable search of a person is valid when made incident to a lawful arrest. State v. Elk, 249 Or. 614, 439 P.2d 1011 (1968); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). This exception justifies a police officer in making a search for weapons.

"``* * * When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape * * *.' Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)." State v. Brammeier, 1 Or. App. 612, 615, 464 P.2d 717, 719 (1970).

Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); State v. Murphy, 2 Or. App. 251, 465 P.2d 900, Sup.Ct. review denied, cert. denied 400 U.S. 944, 91 S. Ct. 246, 27 L. Ed. 2d 248 (1970). Thus the primary questions are: (1) was defendant's initial arrest lawful, and (2) was the search and seizure legal despite the fact that defendant was not, in fact, a deserter?

Authority for the first arrest of the defendant is found in Armed Forces Act, 10 U.S.C. § 808:

"Any civil officer having authority to apprehend offenders under the laws of the United States or of a State, Territory, Commonwealth, or possession, or the District of Columbia may summarily apprehend a deserter from the armed forces and deliver him into the custody of those forces. * * *"

Armed Forces Act, 10 U.S.C. §§ 807(a), 809(d); Myers v. United States, 415 F.2d 318 (10th Cir.1969); United States v. Barber, 300 F. Supp. 771 (D.Del. 1969); Sablowski v. United States, 403 F.2d 347 (10th Cir.1968); Begalke v. United States, 286 F.2d 606, 148 Ct. Cl. 397, cert denied 364 U.S. 865, 81 S. Ct. 108, 5 L. Ed. 2d 87, 151 Ct. Cl. 707 (1960).

In Myers v. United States, supra, the court said:

"As to the arrest point, it must be held that it was neither unreasonable nor unlawful for the New Mexico State Police officer, when he observed two young men in military fatigues riding in a car with California plates, to investigate and inquire whether they had the proper leave orders. When they were unable to produce them and when they then volunteered the information that they were AWOL, the officer had the authority and the duty arrest them. 10 U.S.C. §§ 807, 808 and 809 authorize civil law enforcement officers to apprehend members of the armed forces when absent without leave." 415 F.2d at 319.

It is clear from the record that, after the officers had checked on defendant's identification, and prior to the search in question, he was advised that the military authorities wanted him held either for being AWOL or for desertion, and that he was to leave the automobile and accompany the officers. We hold the taking of the defendant into custody pursuant to 10 U.S.C. § 808 constituted an arrest. State v. Murphy, supra, 2 Or. App. at 255, 465 P.2d 900; State v. Krogness, 238 Or. 135, 139, 388 P.2d 120 (1963), cert. denied, 377 U.S. 992, 84 S. Ct. 1919, 12 L. Ed. 2d 1045 (1964); State v. Christensen, 151 Or. 529, 533-534, 51 P.2d 835 (1935); ORS 133.210, 133.250.

Was that arrest based upon probable cause? The reliance placed by Officers Miller and Ely upon the confirmed reports from police headquarters was proper for they could not reasonably be expected to disregard the officially verified information. State v. Williams, 253 Or. 613, 615-616, 456 P.2d 497 (1969); State v. Elk, supra, 249 Or. at 619-620; State v. Jones, 248 Or. 428, 432, 435 P.2d 317 (1967); State v. Hoover, 219 Or. 288, 298-299, 347 P.2d 69, 89 A.L.R. 2d 695 (1959). See also, 10 U.S.C. §§ 807, 809.

That subsequent information showed defendant not to have been AWOL or a deserter does not detract from the lawfulness of the initial arrest and search and seizure pursuant thereto. Under the circumstances of this case, the police were entitled to do what the law authorized them to do if defendant had, in fact, been a deserter; that is, to make a reasonable search incident to a lawful arrest. See, Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1970); Commonwealth v. Dial, 218 Pa.Super. 248, 276 A.2d 314 (1971); State v. Brown, 251 Or. 126, 444 P.2d 957 (1968); State v. Jones, supra; People v. Campos, 184 Cal. App. 2d 489, 7 Cal. Rptr. 513 (1960); City of McMechen ex rel. Willey v. Fidelity and Casualty Co. of N.Y., 145 W. Va. 660, 116 S.E.2d 388 (1960).

Furthermore, the knowledge of the officers of the facts set forth above concerning the very recent narcotics burglary of the drugstore, the information from a reliable informant concerning the defendant's "having some information" about it, the stomping by the defendant of the hypodermic needle into the pavement observed by the officer just prior to any police contact with him, his known prior record as a narcotics violator, and his observed physical condition after he stepped out of the car combined to furnish probable cause that the defendant was under the influence and had possession of narcotics. Thus in addition to the right of the police to search the defendant for weapons arising out of the arrest for being AWOL, they also had the right to search him for narcotics at the time they did so. It was not necessary here for the officers in effect to rearrest the defendant before searching him for narcotics.

In State v. Cloman, 254 Or. 1, 456 P.2d 67 (1969), the police announced to the defendant that they were arresting him on an "after hours" charge when, in fact, they had probable cause to, and did, arrest him for possessing stolen wire. In that case the Supreme Court said:

"* * * The officers' expressed cause for arresting the defendant was a violation of an ``after hours' city ordinance. We believe it reasonable to conclude that the officers gave this cause for arrest because of their uncertainty of the law of probable cause for arrest. We also believe it reasonable to conclude that the actual cause for which the officers arrested Cloman was some charge concerning the stolen wire. Under these circumstances, we find nothing to be served by holding the arrest invalid because the officers were uncertain about a problem which puzzles the courts. We hold that if the officers had probable cause to arrest, the arrest made is not rendered illegal because the officers expressed another and improper cause for arrest." (Emphasis supplied.) 254 Or. at 12, 456 P.2d at 72.

See, State v. Keith, 2 Or. App. 133, 465 P.2d 724, Sup.Ct. review denied (1970); State v. Temple, Or. App., 93 Adv.Sh. 685, 488 P.2d 1380, Sup.Ct. review denied (1971).

The arrest being legal, a reasonable search incident thereto is authorized "to enable enforcement officers to gather the fruits of the crime, the implements thereof, and possibly to prevent the destruction of evidence thereof." State v. Chinn, 231 Or. 259, 267, 373 P.2d 392, 396 (1962). We hold that the search of defendant's pockets was valid. Coolidge v. New Hampshire, supra; Chimel v. California, supra; State v. Murphy, supra.

In State v. Elkins, 245 Or. 279, 283-284, 422 P.2d 250, 252 (1966), the court stated:

"* * * [However, before an officer has] the right to seize the implements of a crime committed in his presence, other than that for which the arrest was made, he must have reasonable grounds to believe that the article he has discovered is contraband and therefore a crime is being committed. * * *"

Here the evidence established that Officer Miller reasonably believed the capsules to be the dangerous drug secobarbital; thus their seizure was lawful.

It follows that the motion to suppress these capsules should have been denied.

Reversed and remanded.

NOTES

[1] The motion also sought to suppress the hypodermic needle found on the pavement. At the conclusion of the hearing the court said:

"* * * The Court is going to grant the defendant's motion so far as it relates to item 1, which is a vial containing eight red bullet-shaped capsules with the name Lilly on them, identified as secobarbital; and the Court is going to deny the motion so far as it relates to item 2, which is a broken hypodermic syringe.

"* * *

"The Court therefore is going to grant the motion as to item 1."

We assume the order subsequently signed by the court was intended to reflect that ruling.