Appeal from Circuit Court, Multnomah County. Robert E. Jones, Judge. Nos. C 72-03-0762, C 72-03-0763 Cr.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellants.
John H. Clough, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Foley, Judge. Schwab, Chief Judge, and Langtry, Judge.
Defendants were found guilty of theft in the first degree (ORS 164.055) following a jury trial. Their principal assignment of error on appeal is that the trial court erred in denying their motion to suppress certain evidence. Because of our resolution of that issue, we find it unnecessary to reach the further contention by defendant Rita Sagner that the court erred in denying her motion for a directed verdict.
The pertinent facts relating to the motion to suppress are as follows. On January 12, 1972 a detective for the Portland Police Bureau executed an affidavit in support of his request for the issuance of a search warrant to search defendants' home. The affidavit*fn1 recited in meticulous detail the basis for the affiant's belief that a certain movie camera and
a strobe light camera attachment were on the premises. The affidavit then set out various sources from which the affiant had heard that defendant Max Sagner had a reputation for dealing in stolen property. Based on
this affidavit the judge of the district court issued a search warrant authorizing the police to search for the camera and strobe light and further authorizing them to "photograph any other property in the premises
which is suspected to have been stolen, as well as to look at all property in order to obtain serial numbers therefrom."
Armed with this search warrant, a number of police officers (apparently five or six) went to defendants' home to execute the warrant. What went on at the home is not completely clear, but apparently the officers, after informing Mrs. Sagner of her rights and telling her that their purpose was to search for the camera and strobe light, split up into various teams to search. As they proceeded the officers encountered a number of items which they suspected might be stolen. Some of these items were in the open and others were inside drawers and in various other places. Pursuant to the apparent authority of the search warrant, those items were separated into groups for ease of photography, and serial numbers were taken when appropriate. Eventually the camera and strobe light were found. At that point the officers advised the assistant district attorney who was in charge of the case that a great deal of suspicious merchandise had been turned up in the course of the search. Apparently no searching activity went on between the time of that telephone call and the arrival of the assistant district attorney at the Sagner residence but an unspecified amount of searching was done after his arrival. Sometime during the course of the search the officers telephoned police headquarters to determine whether the serial numbers of some ten items which they had found matched those of stolen property. Of those ten items, approximately six appeared to have been stolen.*fn2 On that basis, and
also on the basis of the assistant district attorney's advice that there was no need to seek another search warrant, the officers seized a large quantity of items which they suspected were stolen.*fn3 Of this quantity, nine items were included in the indictments against the defendants. Two of those items were suppressed because they were found after the camera and strobe light, and a third item was not introduced into evidence for an ...