Appeal from Circuit Court, Multnomah County. Charles S. Crookham, Judge. No. C-72-10-3334 Cr.
John W. Osburn, Solicitor General, Salem, argued the cause for appellant. With him on the brief was Lee Johnson, Attorney General, Salem.
Charles R. Harvey, Portland, argued the cause and filed the brief for respondent.
Fort, Judge. Schwab, Chief Judge, specially concurring. Thornton, Judge, dissenting.
Defendant was charged with the crime of possession of a stolen motorcycle. ORS 481.990. He filed a motion to suppress certain evidence seized in the garage of his home. The trial court suppressed the challenged evidence and the state appeals.
Two searches were conducted of defendant's garage, each without a warrant and neither incident to an arrest. Thus the burden is upon the state to establish the existence of probable cause to make the search for and seizure of the challenged evidence. State v. Keller, 265 Or 622, 510 P2d 568 (1973); State v. Sagner, 12 Or App 459, 506 P2d 510, Sup Ct review denied (1973); State v. Douglas, 260 Or 60, 68, 488 P2d 1366 (1971), cert denied 406 U.S. 974 (1972); State v. Elkins, 245 Or 279, 422 P2d 250 (1966).
The facts gleanable from an inadequate record and necessary to an understanding of the case are as follows:
At about 2:30 a.m., a man was shot while sitting in the kitchen of defendant's home. It is not contended that the defendant or any member of his family was responsible for or involved in that shooting. Defendant and his wife transported the wounded man to the hospital. En route they were stopped by a police car, which then followed them to the hospital. The wounded man was discovered to be dead upon his arrival at the hospital. Thereafter defendant and his wife accompanied the police officer in his car to the police station. There the police took statements
from them. No arrests were made. The police then drove defendant and his wife back to the hospital where they picked up their own car and returned to their home followed by the police, arriving there between 4 and 4:30 a.m. When they had left their home to go to the hospital at least three of their minor children, the oldest of whom was 12, were at home asleep. When they arrived home the premises including an unattached garage were occupied by the police, and an investigation and search of the entire premises was in progress.
Here the motion to suppress implies that the defendant gave the officers consent to search his residence where the homicide occurred, but expressly denies that any consent to enter the garage was given. It is clear from the state's evidence, infra, that the garage was not a part of the dwelling as defined in ORS 164.205 (2).*fn1 The state offered no evidence to support its contention that the defendant, even in connection with the homicide investigation, authorized entry into the garage. The defendant denied it also at the hearing.
The state called but one witness, Officer Hawkins, a detective in the Auto Theft Division of the sheriff's office. He testified:
"Q What were the circumstances under which you had seen this motorcycle on the 18th? What
was the time of day and what were you doing there?
"A Approximately 8:00 a.m. on the 18th, we were requested by radio to contact the investigators on the premises of 8628 S.E. Lafayette.
"Q Is that where Mr. Johnson lives?
"A Yes. That's apparently where Mr. Johnson lives.
"Q Ok. Did you go out there that day?
"Q Did you have occasion to go on the premises and particularly the garage?
"Q How did you -- did you have a search warrant?
"Q How did you get into the garage?
"A The garage was unlocked and opened.
"Q Did you ask any one's permission to go into the garage?
"A There was no one present there except one of our uniformed officers who was guarding the premises. There was another individual asleep on the couch in the living room and a young girl. I presume it's the young lady there in the back there.
"Q So did you have any contact with anybody except police officers?
"Q All right. Were police officers in control of ...