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Attorney(S)

Bernard P. Kelly, Medford, argued the cause for appellant. On the brief were Kelly Grant, Medford. Thomas J. Owens, Deputy District Attorney, Medford, argued the cause for respondent. With him on the brief was Alan B. Holmes, District Attorney.

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Smart Summary

State of Oregon v. Barron — Opinion Summary (Sloan, J.)

Factual and Procedural Background

This appeal arises from a conviction for entering a motor vehicle with intent to steal. The case was appealed from the Circuit Court of Jackson County and was argued before the Oregon Supreme Court on June 29, 1964; the judgment was affirmed September 10, 1964, and a petition for rehearing was denied October 13, 1964. The opinion was delivered by Justice Sloan, sitting in banc.

The operative facts presented in the opinion are: On the evening of March 15, 1963, a man named Vincent observed a person behaving suspiciously in a restaurant parking lot, saw that person get into another car and drive away, and recorded that car's license number. Vincent called the Medford police and gave the license number. An officer who had talked with Vincent later observed the car and stopped it; the defendant was the sole occupant. The officer asked to look through the car, and testified that he asked to look in the trunk and that defendant gave his consent. Defendant opened the trunk and the officer found a Skil saw, which he noted and about which he later issued defendant a citation for inadequate lights; defendant was not arrested at that time.

Two days later police learned that a Skil saw had been taken from a carpenter's car that had been parked in the same restaurant parking lot at the time Vincent had observed the suspicious conduct. Learning that the saw discovered in defendant's car matched that description, other officers went to a motel room known to be occupied by defendant and found the Skil saw there. That discovery formed the basis of the charge. At trial the officer who made the initial search testified; the trial court overruled defendant's objection and found the search had been made with defendant's consent. The defendant did not testify. The evidence of the search was admitted and was important to connect defendant to the charged crime. On appeal the only issue presented was the legality of the initial search of defendant's car.

Legal Issues Presented

Whether the warrantless search of defendant's car (specifically the trunk) was lawful because it was made with the defendant's consent, and accordingly whether the evidence discovered during that search was admissible.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Marshall, 1963, 234 Or. 183, 380 P.2d 799	Authority that a search with consent is permissible; addresses assessment of conflicting testimony about consent.	The court treated the present case as stronger than Marshall because here there was no conflict in testimony about consent; the trial court could properly believe the officer's testimony and sustain a finding of consent.
United States v. Eldridge, 302 F.2d 463 (4th Cir 1962)	Support for the proposition that a search with consent is permissible.	Cited as part of authorities recognizing the permissibility of searches made with consent.
People v. Michael, 1955, 45 Cal.2d 751, 290 P.2d 852	Discusses and compares cases relating to the subject of consent to search (as noted by Mr. Justice Traynor).	Cited for its comparative treatment of consent cases and as supporting authority for the proposition that consent renders a search lawful.

Court's Reasoning and Analysis

The court framed the appeal as addressing only the alleged unlawful search of the defendant's car. The analytical steps the court took, as stated in the opinion, are:

The court recited the relevant facts: Vincent observed suspicious activity, reported a license number, an officer stopped the vehicle bearing that number, asked to look in the trunk, and the defendant opened the trunk revealing a Skil saw.
The court noted that the only testimony about consent came from the officer, and that the defendant did not testify; the officer's testimony was therefore undisputed.
The trial court's finding that the search was made with the defendant's consent was within its province because it was entitled to believe the officer's testimony.
The court contrasted the case with State v. Marshall, where consent was upheld despite conflicting testimony, and observed that the present case was stronger because there was no conflict in the evidence about consent.
The court recognized that a warrantless exploratory search without consent would have been impermissible, but reiterated the well-established principle (supported by the cited authorities) that a search with consent is permissible.
The court concluded that there was no evidence from which compulsion could be inferred or implied, and thus the search was not unlawful.

Holding and Implications

AFFIRMED.

Implications: The trial court's admission of evidence obtained from the trunk search was upheld because the court found the search was made with the defendant's consent and there was no evidence of compulsion. The direct effect is that the defendant's conviction for entering a motor vehicle with intent to steal was affirmed. The opinion does not articulate broader rulemaking beyond applying existing authority that consent renders a warrantless search permissible; it does not purport to establish a new precedent.

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STATE OF OREGON v. BARRON

IN BANC

SLOAN, J.

This case involves an alleged unlawful search of defendant's car. He was charged with and convicted of entering a motor vehicle with intent to steal. Evidence of a search made of defendant's car prior to the time he was arrested for the offense charged was received over objection. This is the only issue on this appeal.

The facts which present the issue were these: On the evening of March 15, 1963, a man named Vincent drove his car into a parking lot adjacent to a restaurant and bar located in the outskirts of Medford. Vincent observed what appeared to him to be a person lurking about other automobiles in the parking lot. He observed the suspicious character get into another car and drive away. Vincent took the license number of the car and phoned the Medford police as to his suspicions and gave the police the license number. A police officer was dispatched to talk with Vincent who explained to the officer the cause of his suspicions and at that time also gave to the officer the license number of the car. Later, while cruising on the streets of Medford that officer observed the car bearing the license number Vincent had detected. The officer stopped the car. Defendant was the sole occupant.

The officer asked defendant if he might look through the car. The officer testified that he had asked defendant if he might look in the trunk of the car and that defendant gave his consent. Defendant opened the trunk. In the trunk the officer found a Skil saw. The officer noted the identification. He gave defendant a citation for inadequate lights on the car but did not arrest him.

Two days later it was discovered that a Skil saw had been taken from a car owned by a carpenter that had been parked on the restaurant parking lot at the time Vincent had seen the suspicious conduct. When this was made known to the police it was recognized that the saw that had been taken met the description of the one found by the officer when he had stopped defendant's car on the night of March 15. Other police officers then went to a motel room known to be occupied by defendant and there found the Skil saw. This was the basis for the charge made. The evidence, when admitted, was crucial to connect defendant with the crime charged.

When defendant objected to the testimony of the officer who had made the initial search of defendant's car the trial court found that the search was made with defendant's consent. The only evidence on the subject was by the officer. As stated, he testified that he had not directed defendant to open the trunk but had done no more than request it. Defendant did not testify at all. The officer's testimony was undisputed. The trial court was entitled to believe the officer's testimony. This is a much stronger case than State v. Marshall, 1963, 234 Or. 183, 380 P.2d 799, where there was a conflict in the testimony as to consent. In Marshall we sustained the finding of consent because the trial court could have taken the officer's testimony as true.

Beyond doubt this search, without the consent, would not have been permissible. It was exploratory and without any cause for arrest or belief that a crime was being committed. However, it is also beyond doubt that a search with consent is permissible. State v. Marshall, supra; United States v. Eldridge, 302 F.2d 463 (4th Cir 1962), and see, particularly, People v. Michael, 1955, 45 Cal.2d 751, 290 P.2d 852, in which Mr. Justice Traynor compares many of the cases relative to the subject of consent.

In the instant case there is no evidence from which any element of compulsion could be inferred or implied. The search was not unlawful. The judgment is affirmed.

STATE v. BARRON