Appeal from Circuit Court, Multnomah County. Alfred T. Sulmonetti, Judge. No. C 72-08-2663 Cr.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
William C. Tharp, certified law student, Willamette University, Salem, argued the cause for respondent. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thornton, Judge. Schwab, Chief Judge, and Fort, Judge.
Pursuant to ORS 138.060(4), the state appeals from the granting of a motion to suppress evidence.
Defendant was indicted for criminal activity in drugs, ORS 167.207, under a two-count indictment charging possession of both heroin and marihuana. Prior to trial, defendant moved to suppress the drugs which were the subject of the indictment. The trial court granted the motion and suppressed all the drugs seized.
The seizure here at issue occurred during the evening of August 25, 1972. At about 10:30 that evening Portland police officer Guinn, and his partner, Officer Gary, were patrolling a residential area in a marked police car.
Officer Guinn, who had been assigned to patrol this area for about two years, testified that it was a high crime area and that he received about three or four burglary calls during each evening shift. However, this evening no burglaries had been reported for about an hour.
As they approached an intersection, Officer Guinn noticed a car with two occupants parked about one-half block away and facing away from the patrol car.
The parked car was across the street from an apartment house which Officer Guinn believed to be the location of illegal drug sales. A narcotics officer had notified Officer Guinn of illegal drug traffic originating in the apartment building, and had asked Officer Guinn to watch the building for suspicious activity.
The patrol car then turned onto the street driving toward the parked car. The parked car backed up and began to enter the traffic lane. However, as the patrol car approached, the occupants of the other car turned around, and, as Officer Guinn testified, they ...