State v. Groda

*289SCHWAB, C. J.

This appeal presents the question of whether there was probable cause for the warrantless search of defendant, his vehicle and a briefcase found in it, upon his arrival at a residence which was the scene of substantial illegal activity in drugs. The trial court held that there was, denied defendant’s motion to suppress evidence resulting from the search and convicted him of criminal activity in drugs, ORS 167.207, after trial without a jury. Defendant assigns as error the denial of his pretrial motion to suppress.

The events leading up to defendant’s arrest began when two undercover officers of the Portland Police Department gained the confidence of a woman who agreed to assist them in obtaining large quantities of amphetamines. She took the officers to her contact, a Mr. Tuttle, who took the officers to an address in northeast Portland. The officers gave him $1,100 with which to purchase 10 jars of amphetamines, each containing 1,000 tablets. While they waited in the car, Tuttle went into the house, and another man, named Shafer, came out of the house, took a bag from a parked automobile and returned to the house. About 10 minutes later, Tuttle returned with the illegal drugs and was arrested.

In the meantime reinforcements arrived, and when Tuttle returned to the car with the drugs six officers (Johnston, Burger, Huff, Houck, Zahler and Gearhart) entered the house where Tuttle obtained the drugs. They observed Shafer sitting at the kitchen table with a large quantity of assorted drugs, a calculator, notebook and pencil in front of him. Two of the officers recognized the odor of "fresh” amphetamines. Shafer and two other persons were then arrested, and the house was thoroughly searched.

While the officers were in the house the telephone rang some time between 6 p.m. and 7 p.m. and Officer Huff answered it. The caller asked for Richard. Huff said Richard was busy and to call back. Before Huff *290could hang up, the caller said: "Wait a minute; this is Ronny — Tell him they’re done and I’m on my way over.” Officer Huff said that he hypothesized that Ronny was talking about amphetamines, because he knew from experience that they were dried as part of the manufacturing process, and that Ronny’s message could be interpreted to mean that the amphetamines were now dried and he would be bringing them over. At the suppression hearing, the state stipulated that it could have meant that they were done with dinner and that Ronny would be right over. Officer Huff related the telephone message to some of the other officers, and they decided to wait for Ronny to arrive at the residence.

While they were waiting, at least two other persons arrived on the scene and were arrested upon arrival. About one hour after the telephone call, Officer Houck, who was waiting outside alone, saw two men drive up in a car, park across the street from the house and get out. As they approached, Officer Houck asked if one of them was Ronny, and defendant, who was carrying a calculator and a notebook, said that he was. Defendant asked Officer Houck if she was the one waiting for the LBs (translated as referring to pounds of marihuana); she said she was, and told him to go on in. This conversation was not related to any of the other officers. Officer Houck went to the door with the men. When it was opened she identified herself and the others as police officers. She stated to the waiting officers, "This is Ronny, he hasn’t been searched yet.”

As soon as defendant entered the house, he was searched by Officers Johnston and Burger. Officer Houck was not present. No weapons or other contraband were found, but Officer Burger removed a large sum of money — approximately $2,700 — from defendant’s pocket. Defendant’s car keys were taken from him and given to Officers Gearhart and Johnston who proceeded to defendant’s car. Officer Gearhart went directly to the trunk, unlocked it and found a briefcase. Johnston searched the passenger compartment *291and found nothing. Officer Gearhart opened the briefcase and found illegal drugs. Thereupon, defendant was arrested. It is the money and drugs which defendant sought to suppress.

Defendant concedes the right of the police to stop him when he arrived at the residence where the illegal drug activity was going on, and concedes the right of the police to pat him down to determine if he had any weapons. He contends, however, that there was no probable cause to justify a search of his person, and that even if there was probable cause to search him there were no exigent circumstances justifying the warrantless search of his automobile or the briefcase in the locked trunk compartment.

1. We disagree with defendant as to both of his contentions. Arguably, the telephone call in itself was sufficient to give the police probable cause to search defendant for evidence of a crime. As is pointed out in LaFave, Search and Seizure: ”The Course of True Law * * * Has Not * * * Run Smooth,” 1966 Ill L Forum 255 (1966):

"The requirement of probable cause does not mean that there must be 'a showing of guilt beyond a reasonable doubt’; what is needed is 'reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief.’ In terms of the quantum of evidence required, this is substantially the equivalent of the probable cause needed for an arrest warrant and of the reasonable grounds needed for arrest without warrant * * 1966 Ill L Forum, supra at 259-60, cited with approval in State v. Keith, 2 Or App 133, 142, 465 P2d 724, rev den (1970).

In any event, when we add to the telephone call the statement the defendant made to Officer Houck at the scene there was a surfeit of probable cause. It avails the defendant nothing that the police who actually searched him did not assume from Officer Houck’s statement to them that she was saying, in effect, "I have probable cause to search him and direct you to carry out the search.” State v. Cloman, 254 Or 1, 12, *292456 P2d 67 (1969), tells us that "* * * if the officers had probable cause to arrest, the arrest is not rendered illegal because the officers expressed another and improper cause for arrest.” In State v. Mickelson, 18 Or App 647, 526 P2d 583, rev den (1974), we said:

"* * * [Pjrobable cause to arrest must be evaluated on the basis of the collective information of the police rather than that of only the arresting officer. Cases in which courts have adhered to this principle are those where the arresting officer acted with an awareness or reasonable belief that fellow officers have information sufficient to constitute probable cause * * *. These courts recognize that effective law enforcement often requires police officers to work as a single unit. A police officer working in a team or in a modem police organization is entitled reasonably to arrest or search on the command or summary information of another officer. But somewhere in joint police action there must be a nexus between the probable cause and the invasion of privacy, between the justification and the act.” 18 Or App at 650-51.

Officer Houck’s knowledge, coupled with her statement to the officers who then made the search, provided the required nexus. Defendant’s contention that, even assuming probable cause to search his person, it did not extend to his automobile which he had driven to the scene, or to the briefcase located in it, is answered to the contrary by State v. Downes, 31 Or App 419, 571 P2d 914 (1977), and State v. Greene, 30 Or App 1019, 568 P2d 716 (1977).

Affirmed.