Opinion
Argued October 26, 1970
Affirmed November 16, 1970 Petition for rehearing denied December 8, 1970
Appeal from the Circuit Court, Multnomah County, ALAN F. DAVIS, Judge.
George A. Haslett, Jr., Portland, argued the cause and filed the brief for appellant.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and Jacob B. Tanzer, Solicitor General, Salem.
Before SCHWAB, Chief Judge, and LANGTRY and FOLEY, Judges.
AFFIRMED.
This is another case in which an officer of the Narcotics Division of the Portland Police Bureau made a narcotics search and arrest in Lair Hill Park based on information supplied to him by an informant. See State v. Diaz, 3 Or. App. 498, 473 P.2d 675, Sup Ct review denied (1970). The defendant, convicted of possession of marihuana, appeals, assigning as error the court's denial of his motion to suppress the evidence found on his person.
Officer Boggs, while at police headquarters in Portland, received a telephone call from a reliable informant who informed Boggs he had seen a person with marihuana sitting under a tree in the park. The informant gave a detailed description of the individual. Before Officer Boggs left the police station for Lair Hill Park with two other officers, he received a similar telephone call from another informant describing the same individual.
Within an hour of the receipt of the first phone call, Boggs and the other two officers proceeded to Lair Hill Park, found the described individual, searched him, found marihuana on his person, and then arrested him.
The defendant's motion to suppress was based on the grounds that (1) there was no probable cause to search, (2) the search was invalid because it was not pursuant to a warrant, and (3) the search was not incident to a lawful arrest. The first and third grounds have been decided adversely to the defendant. See State v. Murphy, 3 Or. App. 82, 471 P.2d 863 (1970); State v. Keith, 2 Or. App. 133, 465 P.2d 724, Sup Ct review denied (1970); State v. Murphy, 2 Or. App. 251, 465 P.2d 900, Sup Ct review denied, cert denied 400 U.S. 944, 91 S Ct 246, 27 L Ed 2d 248 (1970); McCray v. Illinois, 386 U.S. 300, 87 S Ct 1056, 18 L Ed 2d 62 (1967); Draper v. United States, 358 U.S. 307, 79 S Ct 329, 3 L Ed 2d 327 (1959).
With reference to his second ground, defendant contends that a search warrant could have been obtained prior to the search because the Portland magistrates who have the power to issue search warrants were located in the same building Officer Boggs was in when he received the telephone call from the informant. The undisputed testimony of Officer Boggs was that it would have taken him three hours to execute the necessary documents and obtain a search warrant. A man sitting under a tree is not necessarily going to stay there. In State v. Keith, supra, we pointed out that if police have probable cause to believe that they must immediately search without taking the time to seek and obtain a warrant in order to avoid the loss of evidence, they are justified in so doing. This was such an instance.
Affirmed.