Defendant appeals his conviction for theft of a package of diapers from his employer’s store, ORS 164.045. He assigns as error the trial court’s denial of his motion to suppress both the package and his incriminating statement to the police following his arrest. He asserts that the police lacked probable cause and practical necessity to conduct a warrantless search of his car or to seize the package, that they lacked probable cause to arrest him and that the search of his car and seizure of the package were not reasonably incident to a valid arrest. He argues that the illegal search and seizure, and his illegal arrest, tainted his subsequent statement to the police. The state asserts that the search of the car and seizure of the package were incident to a valid arrest. The court ruled that probable cause and practical necessity supported both the warrantless search of the car and the seizure of the package, that the arrest was valid and that defendant’s statement was not tainted and denied the motion to suppress. We affirm.
The historical facts are not disputed.1 Commencing at about 3:30 a.m. on February 8, 1984, two police officers watched the parking lot and entry area of the store where defendant worked. They were in a police van parked in the lot, 20 to 25 feet from where defendant’s car was parked. The store manager had told the police before the surveillance that defendant did not have permission to take merchandise from the store.
Defendant normally worked in the store between 4 a.m. and 6:30 a.m., during which hours it was not open for business. The officers saw him come to work and enter the store between 3:30 and 4 a.m. He did not take anything into the store with him. At 5:42 a.m., they saw him leave the store, pushing a floor washing machine, with a two-foot-long brown box, covered by a newspaper, on top of it. Defendant parked the machine by the loading dock, took the box to the car, removed a package from the box and put the package in the car. Officer Hartley testified that he observed defendant’s actions from the police van, that he saw the interior light of the car go on when defendant opened the door and that the
The officers immediately approached the car and saw the package through the window. They still could not identify its contents. They opened the door, seized the package and discovered that it contained diapers. The officers then called for police assistance and, when it arrived a few minutes later, they entered the store and arrested defendant without a warrant.
The state seeks to justify the search of defendant’s car and the seizure of the package of diapers as incident to a valid warrantless arrest. ORS 133.310(l)(a). “Probable cause” means that there is “a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it.” ORS 131.005(11). Here, the facts gave the police probable cause to arrest defendant before they had seized the package. Defendant had entered the store at around 3:30 a.m. without the package. He emerged at 5:42 a.m. with the package inside a brown box covered by a newspaper. He placed the package inside his car and partially covered it with a pair of trousers. The package appeared to be store merchandise. The police knew that defendant did not have permission to remove merchandise. Those facts provide a substantial objective basis to believe that more likely than not a theft had been committed by defendant. Moreover, because defendant had committed at least a class A misdemeanor in the officers’ presence, the warrantless arrest was valid. ORS 133.310.
The search, although it preceded the formal arrest of defendant, was virtually contemporaneous with the arrest. Both occurred within a few minutes. That the search preceded the arrest is of no moment. State v. Elk, 249 Or 614, 439 P2d 1011 (1968); State v. Flores, 68 Or App 617, 685 P2d 999, rev den 298 Or 151 (1984). The search was close to the arrest in both time and space; its intensity was commensurate with the crime and what was known of defendant; and there is no question but that the arrest and the search were causally
We next consider the admissibility of defendant’s admission made at the time of his arrest. Immediately after the police entered the store and told defendant that he was under arrest, defendant said, “If it’s about the diapers I’m going to pay for them tomorrow.” The police had probable cause to arrest defendant for theft. The warrantless arrest, following the search and seizure, was legal. Defendant made the statement voluntarily. It was not prompted by police interrogation. Under the circumstances here, we find that the statement was admissible.
Affirmed.
1.
We summarize the facts from the evidence taken in the hearing on defendant’s motion to suppress.
2.
Although defendant cites the Fourth Amendment to the United States Constitution, his argument contains only Oregon cases construing the Oregon Constitution. He points out no independent violation of the Fourth Amendment, and we find none.