STATE v. SCHAUSS, 101 Or. App. 116 (1990)

788 P.2d 1035

STATE OF OREGON, Respondent, v. DANIEL RAY SCHAUSS, Appellant.

C88-02-32179; CA A51044Oregon Court of Appeals.Submitted on record and briefs November 27, 1989
Reversed and remanded for new trial March 28, 1990

Appeal from Circuit Court, Multnomah County.

Dorothy M. Baker, Judge.

Sally L. Avera, Acting Public Defender, and Peter Gartlan, Salem, filed the brief for appellant.

Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Katherine H. Waldo, Assistant Attorney General, Salem, filed the brief for respondent.

Before Graber, Presiding Judge, and Riggs and Edmonds, Judges.

PER CURIAM

Reversed and remanded for new trial.

Page 117

PER CURIAM

In this case tried to a jury, the state concedes that, under State v. Crawford, 91 Or. App. 597, 756 P.2d 68 (1988), the record contains insufficient facts to establish that the police had probable cause to arrest defendant. We agree that the motion to suppress should have been granted.

Because the issue is likely to arise on retrial, we also address defendant’s other assignment of error. He argues that the trial court should have suppressed an eyewitness’s identification, because the “photo throwdown” was unduly suggestive. We do not agree that the procedure followed was improper.

Reversed and remanded for a new trial.

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