DocketNumber: No. C 79-02-30548, CA 15129
Citation Numbers: 47 Or. App. 995, 615 P.2d 416, 1980 Ore. App. LEXIS 3251
Judges: Joseph, Warren
Filed Date: 8/18/1980
Status: Precedential
Modified Date: 11/13/2024
The defendant appeals from conviction as an ex-convict in possession of a firearm. ORS 166.270. He assigns as error the trial court’s denial of his motion to suppress physical evidence, a revolver. The evidence was taken in a warrantless search of his room at the Biltmore Hotel in Portland on February 16, 1979. He was arrested at that time and place and the evidence was seized shortly after his arrest.
Two Portland police officers first saw the defendant, his wife and a male companion on a downtown Portland street. It was at an early morning hour. The three were entering a bookstore. Being concerned about a curfew violation, the police approached the three as they were about to enter a taxicab. They asked for identification. Defendant and his wife gave their last name as Faught and each gave a date of birth. Their companion, Peterson, gave his address as the Biltmore Hotel. On discovery that the wife was over the age of 18, the police allowed the three to proceed.
By use of the computer terminal in their vehicle, the police determined that a person with the name Faught and the same birthdate as that given by defendant was wanted in Arizona on a felony rape charge. They proceeded to the Biltmore Hotel where they discovered the defendant was registered in room 11. The officers proceeded to that room, knocked on the door and identified themselves. After a brief delay, defendant came to the door dressed only in his underwear. Upon request, defendant produced identification. The police requested that he come with them to the police station. When defendant stepped back into the room, the officers forced the door to open wider and entered the nine-foot by nine-foot room. They observed a spoon containing a yellow substance, two syringes and a .22 caliber bullet on the dresser.
In response to a question, defendant admitted that he was shooting "dope.” He was arrested for
The state seeks to justify the search of the room which produced the revolver as a search incident to arrest. For this purpose, the state quotes from Chimel v. California, 395 US 752, 763, 89 S Ct 2034, 2040, 23 L Ed 2d 685, (1969) as follows:
"* * *[I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.”
The state’s reliance upon Chimel v. California, supra, is not well founded because at the time of the search the revolver was not within the reach of the defendant or either of his companions. All three of them had been removed from the room to the hallway. Defendant and his wife were under arrest and the police were not concerned about Peterson.
The state also relies on the claimed presence of exigent circumstances in the case. The record does not contain evidence of exigent circumstances to
This warrantless search being outside the rule proclaimed in Chimel v. California, supra, as a search incident to a lawful arrest and there being no exigent circumstances to justify the search at the time it was made, the evidence seized, the revolver, should have been suppressed.
Reversed and remanded for new trial.