Opinion
88D100002; CA A50606
Argued and submitted May 22, 1989
Reversed and remanded for a new trial November 8, 1989
Appeal from District Court, Marion County.
Paul J. Lipscomb, Judge.
Steven M. Richkind, Salem, argued the cause and filed the brief for appellant.
Janet A. Klapstein, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Richardson, Presiding Judge, and Newman and Deits, Judges.
PER CURIAM
Reversed and remanded for new trial.
Defendant appeals his convictions for attempted unauthorized use of a motor vehicle, ORS 164.135, ORS 161.405, and criminal mischief III. ORS 164.345. He assigns as error the court's denial of his motion to suppress evidence of his identification. We reverse.
The state agrees that defendant's assignment is well taken. Without a warrant, the police entered a private residence, found defendant there and required that he come out of the house to the street, where the victim identified him as one of the parties involved in the attempted theft. The state and defendant agree that, even if there was probable cause to enter the residence, there were no exigent circumstances.
Defendant appears to ask that the suppression order extend to his identity and bar the victim from identifying him at retrial. The state concedes only that the identification at the show-up should be suppressed. We agree with the state that the suppression order should not bar an in-court identification, if the victim can identify defendant at retrial and the state can show that the in-court identification has a source independent of the show-up identification. See State v. Classen, 285 Or. 221, 590 P.2d 1198 (1979).
Reversed and remanded for new trial.