Opinion
C/A No. 5232
Argued November 1, 1976.
Reversed with directions November 26, 1976.
In Banc
On Review from the Court of Appeals.
Appeal from Circuit Court, Lane County. Donald F. Myrick, Judge Pro Tem. 26 Or. App. 373, 552 P.2d 869 (1976).
Reversed with directions.
William F. Frye, Eugene, argued the cause and filed briefs for petitioner.
John W. Burgess, Assistant Attorney General, Salem, argued the cause for respondent and filed a supplemental brief on review. Also on the briefs were Lee Johnson, Attorney General, and W. Michael Gillette, Solicitor General, Salem.
PER CURIAM.
Petitioner seeks review of the decision of the Court of Appeals in State v. Gilbert, 26 Or. App. 373, 552 P.2d 869 (1976), reversing the trial court's order suppressing evidence seized in the course of executing a search warrant. The warrant specified the objects of the search as a space heater, a television set and a tape recorder-radio system, each of which was described in detail. In the course of executing the warrant the officers saw a black Mercury outboard motor in a closet in a lakeside cabin. A blue and white Clinton Sea King outboard motor had been stolen about nine months previously, approximately a mile and a half from the cabin. One of the officers recalled that the previous theft had been reported but he did not remember the details of make and color of the stolen motor. The officers took the motor out of the closet and removed the cover plate to inspect the serial number. This revealed that the serial number had been obliterated.
The Court of Appeals held that the officer had probable cause to seize the motor and that, therefore, the evidence was improperly suppressed by the trial court. Chief Judge Schwab dissented. We agree with the dissent for the reasons set out in the dissenting opinion.
The judgment of the Court of Appeals is reversed with directions to sustain the trial court's order suppressing the evidence.