Appeal from Circuit Court, Lane County. Edward Leavy, Judge. No. 72-3196.
John W. Burgess, Assistant Attorney General, Salem, argued the cause for appellant. With him on the briefs were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for respondent.
Foley, Judge. Schwab, Chief Judge, and Fort, Judge.
This is an appeal by the state from an order suppressing evidence. Defendant's house was searched, pursuant to a search warrant, for two items of stolen property, an antique mantel clock and a portable television set. The search disclosed three large plastic bags of marihuana and defendant was indicted for criminal activity in drugs, ORS 167.207. The trial court suppressed the evidence without making findings
or stating the basis for its ruling.*fn1 We affirm.
It is necessary to an understanding of the issue to set out the relatively complex factual situation from which the problem arose.
A police officer investigating a house trailer burglary, which we will denote Burglary No. 1, went to the home of one Boley to question him about another matter. Boley was a suspect in Burglary No. 1 involving stereo equipment, which was also discussed with him. The officer said, with reference to Burglary No. 1: "Now, about the stereo equipment. I want it back." Boley said: "I know where it is and I'll get it back." The officer then asked him where it was and he replied that it was at defendant's house. The officer then asked Boley if he, Boley, had stolen it and he responded falsely that he had not, but that defendant and another had stolen it.*fn2 The officer then said, "Well, if you're going to get it back, I'll drive by and observe you loading it in the car," and he told Boley he could then give him the property at the Kennedy School parking lot which was in the vicinity. Boley advised the officer that he had to first go and drink some methadone, so the officer delayed his surveillance long enough, approximately 45 minutes, to return to the courthouse and have a cup of coffee, after which he drove past defendant's home and observed Boley loading boxes in the trunk of his car. Shortly thereafter, the officer met Boley at Kennedy School parking lot and received the several boxes involved in Burglary
No. 1. In addition, Boley gave the officer another box which contained jewelry, an ornamental liquor bottle and other items which appeared to the officer also to have been stolen. Two days later the officer was advised of Burglary No. 2, which involved the trailer house adjacent to the trailer house of Burglary No. 1, and the property from the additional box was positively identified as the subject of Burglary No. 2. All of the property allegedly stolen in Burglary No. 2 was not included in the box, so the officer obtained a search warrant to look in defendant's house for the two missing objects, a mantel clock and a portable television. No stolen property was found, but it was in the process of this search that the officer found the marihuana which is the subject of the indictment herein.
The trial court suppressed the evidence, apparently on the ground that the initial removal of the stolen property from defendant's home was participated in by the officer without a search warrant and therefore the search warrant ultimately issued was void and the seizure of the marihuana was tainted with the initial illegality.
The state contends that Boley was not an agent of the police because he volunteered to get the property and the officer had reason to believe Boley was authorized to enter defendant's house. Additionally, with reference to Burglary No. 2, since the officer had not requested Boley to bring him this property, the causal connection between the illegal agency and the marihuana which was subsequently seized was broken and, third, even assuming Boley was the officer's agent for Burglaries Nos. 1 and 2, the marihuana was not the ...