Appeal from Circuit Court, Multnomah County. Phillip J. Roth, Judge. No. C-72-06-1896 Cr.
John W. Osburn, Solicitor General, Salem, argued the cause for appellant. With him on the brief was Lee Johnson, Attorney General, Salem.
James T. Marquoit, Portland, argued the cause for respondent. With him on the brief were Maizels & Marquoit, Portland.
Langtry, Judge. Schwab, Chief Judge. Thornton, Judge, dissenting.
This appeal is by the state from an order sustaining a motion to suppress (ORS 138.060(4)) narcotics evidence seized from defendant in a room at the Thunderbird Motel near the Columbia River bridge in Multnomah County.
Sergeant Englert of the Multnomah County Sheriff's Department answered a call from the night manager of the motel summoning him to investigate a narcotics situation.
At the motel the manager showed him some residue he said a motel maid had given him from a mess she said she had cleaned up in Room 310. The manager
also said that a motel telephone operator had told him that the operator overheard a telephone conversation on the Room 310 line which indicated the occupants expected the delivery of narcotics to that room that night and that then they would leave without paying the room bill.
Englert recognized the residue shown him as marihuana, and without verifying the information passed on by the manager with the maid or the telephone operator, he and other officers went to Room 310 and knocked on the door. The officer testified:
"A male, who was later identified as Ellis McDade, answered the door, and I identified myself as a Sheriff's narcotics officer and produced credentials. He was in the nude and we went inside the room and we shut the door, and we let him put on some clothes and we had a conversation with him."
There was no cross-examination about the entry into the room. The above quotation is all there is in the record about whether the entry was made with permission of the occupant. An extinguished marihuana roach was in an ash tray and a prescription bottle with defendant's name on it was observed.
Some 20 minutes later a knock came at the door. Englert answered and three men, with defendant in the lead, started to enter. Englert identified himself and defendant immediately put a hand into a front pant pocket. Englert seized his hand and the pocket and in an ensuing search the narcotics which are the subject of the motion were seized from the pocket. A skin search of the three entering men disclosed no other contraband.
At the hearing on the motion Englert testified
that there was not time to seek a search warrant in view of the information gleaned by the telephone operator. He said that information, the hearsay from the maid and the marihuana residue he was shown were his basis for invading the room. That information, plus the marihuana roach in the room, the pill bottle and the defendant's gesture to the pocket, taken all together, were his reasons for searching the defendant.
Repeated colloquies between court and counsel occurred during the testimony. At one point the court indicated it thought access to the room was legitimately accomplished; at another, the court said it would not consider the information from the ...