State v. Gressel , 276 Or. 333 ( 1976 )

HOWELL, J.,

dissenting.

The only issue in this case, as the majority points out, is whether the officer had probable cause to search the defendant. Also, as stated by the majority, the only question is the application of the law to the facts. The facts have previously been determined against the defendant by a circuit judge who heard the testimony on the motion to suppress and by the Court of Appeals. They both decided that the officer had probable cause to search the defendant. I agree. Officer Grimes had been advised 10 minutes previously that a white male person wearing a hip length jacket had been seen behind the Sizzler Restaurant and that entry had been made into the restaurant. Defendant was stopped by Officer Grimes at a spot one-quarter to one-half mile from the scene at 1:30 in the morning. He was wearing a dark coat or jacket. He advised Officer Grimes that he was on parole for the crime of burglary. Two of the jacket pockets had a soft bulge in them which the officer felt could be rolls of money.

Considering all the testimony, particularly that a burglary had been committed a short time previously, that the defendant had the same general appearance as the suspect in the burglary and that defendant was on parole also for burglary, I have no difficulty concluding that the officer had probable cause to search the defendant.

I would affirm the Court of Appeals and the trial court.

Tongue, J., and Bryson, J., join in this dissent.