State v. Howell

SLOAN, J.

Defendant was convicted, by a jury, of the crime of larceny by embezzlement. He appeals. He claims that evidence used against him was obtained by an unlawful search and seizure.

Defendant had been employed as a bartender at a Pinafore Restaurant in Oswego. A custodian arrived to clean the restaurant at about 5:30 a.m. on January 22, 1963. The custodian found that a window had been broken in, the interior of the place had been ransacked and money taken. The police officers who investigated the apparent robbery fastened suspicion on defendant. Later in the morning the officers went to his home and gained admittance by his consent. They searched the place, how thoroughly does not appear. The officers did ask for and defendant gave them his clothing. The clothing was scrutinized by experts who opined that particles of glass from the broken window were found in the fabric of defendant’s clothes. Accordingly, the officers obtained a warrant for defendant’s arrest. Five officers went to his home to execute the warrant. The officers did not bother to seek a search warrant.

Defendant shared a two story house with another man named Pynn. Pynn resided in an apartment on the second floor of the house. Defendant lived in a small apartment consisting of bedroom and bath on the lower floor. When the officers arrived at this house defendant was in Pynn’s apartment. Pynn was present and admitted the officers. Defendant was immediately arrested and handcuffed. Defendant then asked to be taken to his own apartment to change his clothes. He was taken there by three of the officers.

While defendant was changing his clothes the officers searched his bedroom. Other officers searched a nearby garage or storage room. One of the officers examined the small bathroom. He observed a wall panel commonly used to cover plumbing. The panel was fastened to the wall with screws. The officer testified that when he had searched defendant’s room on the previous day he had noted that this panel was fastened to the wall with only one screw. He stated at the time in question he observed two screws securing the panel and a screw driver on a shelf in the bathroom. This aroused his suspicion so he removed the screws and the panel. In the space behind the panel he found a green sack of the land used by business people to carry money to a bank. The sack contained something more than $500 in cash. Both before and during the trial defendant made appropriate motions to suppress this evidence so obtained.

The entire scope of the search and seizure problem has been exhaustively discussed in the opinions in State v. Chinn, 1962, 231 Or 259, 373 P2d 392, and State v. Krogness, 1963, 238 Or 135, 388 P2d 120. It must be clear from these opinions, and the authority therein cited, that in each case we went to the outer limits of permissive search or seizure to sustain the use of the evidence taken. This case goes one step, at least, beyond. We have concluded the evidence should not have been admitted.

Our considerations are these: There was no possible question of officer safety, a weapon could not have been concealed behind the panel and suddenly seized by defendant. In the small rooms occupied by defendant it would have been readily apparent that no other person was present who might have aided defendant in an attempt to escape. Defendant was incapable of destroying any evidence. A search of defendant’s person, at the moment of his arrest was justified. But, for the reasons just stated, there was no justification for the search, without a warrant, of the premises other than those wherein defendant was arrested. Agnello v. United States, 1925, 269 US 20, 46 S Ct 4, 70 L Ed 145, 51 ALR 409. The arrest was made in Pynn’s apartment. The arrest was completed when defendant and the officers went to defendant’s apartment. The Agnello case makes it clear that a search at that juncture, without a warrant, cannot be justified as an incident of arrest.

It follows that the case must be returned for a new trial from which the challenged evidence must be excluded.