Appeal from Circuit Court, Multnomah County. Robert E. Jones, Judge. Nos. C-72-07-2134, C-72-07-2135.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellants.
John W. Burgess, 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.
Langtry, Judge. Schwab, Chief Judge. Fort, Judge, specially concurring.
Defendants appeal from conviction of criminal activity in drugs. ORS 167.207. They claim error in the denial of a motion to suppress evidence produced by a warrantless search and seizure at the time of their arrest on July 8, 1972.
The essential facts in evidence are: An investigation had been carried on by police for several weeks concerning four men who, a reliable informant had said, had been dealing in heroin at Washington Park. They were reported to have moved from one motel to another. At the Jamaica Motel where the arrests were made two each of them occupied Rooms 43 and 45 which were approximately 55 feet apart. During the day of July 7 another informant reported making a purchase of heroin from these two defendants at Room
45. Later the same day female Officer Kelley made a purchase at Room 43 from a female occupant who said that the men who lived in that room would be back later if Kelley wished to make a further purchase. At about 1:00 a.m. Officer Kelley returned to Room 43, leaving several police officers on watch outside. The two male occupants were present and she made a purchase of heroin from them. When she refused a free sniff of heroin the men appeared to become suspicious. She reported this to the other officers immediately upon leaving the room. They concluded that loss of evidence was imminent in Room 43, which dictated immediate arrest of the two males and search of the room. They went into Room 43 and found one of the male occupants was locked in the bathroom flushing balloons of heroin down the toilet. They recovered some of this evidence and placed the occupants under arrest.
Substantial noise was involved in these proceedings and at that time the telephone in the room sounded. The officers did not answer the call but concluded it must be the occupants of Room 45, defendants in these appeals, calling to see what the commotion was about. Thus, they felt impelled by the exigencies of that circumstance to make an immediate search and a possible arrest in Room 45. They gained admittance there by use of a manager's key. The defendants were asleep on their beds and marihuana was in sight. They seized the marihuana, placed the defendants under arrest after frisking them and secured them outside the room. Then they proceeded to search the room and in a concealed place they found the heroin which is the subject of controversy in these appeals.
The first point defendants make is that the police had information from a reliable informant
earlier in the day that heroin was being dealt from Room 45 and that they should have obtained a warrant at that time for a search and possible arrest rather than awaiting the circumstances which arose. We do not agree with this contention. The mere fact that a police officer may have probable cause to get a warrant or make an arrest at a particular point does not mean he must stop his investigation and go for the warrant or make the arrest. This is the rule as we understand it from Hoffa v. United States, 385 U.S. 293, 87 S Ct 408, 17 L Ed 2d 374 (1966), rehearing denied 386 U.S. 940 (1967). See also State v. Murphy, 2 Or App 251, 258, 465 P2d 900, Sup Ct review denied, cert denied 400 U.S. 944 (1970). It would be highly unreasonable to place the police in the position of having to guess whether requisite probable cause begins at a particular point. In this regard see United States v. Harris, 403 U.S. 573, 91 S Ct 2075, 29 L Ed 2d 723 (1971), where probable cause for issuing a search warrant was in question in the United States Supreme Court. Four members disagreed as to the existence of probable cause in that case and the five-judge majority needed five separate opinions to express its reasons for believing there was probable cause. If such uncertainty exists in this type of question among the judges of the highest court in the land, we should not expect greater acumen among policemen.
We have examined the principal precedents relied upon by the defendants: Trupiano v. United States, 334 U.S. 699, 68 S Ct 1229, 92 L Ed 1663 (1948); United States v. Resnick, 455 F2d 1127 (5th Cir 1972); and Niro v. United States, 388 F2d 535 (1st Cir 1968), and we are not persuaded that they indicate a contrary rule largely ...