Emery v. State
| Decision Date | 06 September 1984 |
| Citation | 688 P.2d 72,297 Or. 755 |
| Parties | , 44 A.L.R.4th 341 Richard Verle EMERY and Lorena Emery, Respondents on Review, v. The STATE of Oregon, The Oregon Department of State Police, Department and Agency of the State of Oregon, Petitioners on Review. TC 9072; CA A25025; SC S30042. |
| Court | Oregon Supreme Court |
William F. Nessly, Jr., Asst. Atty. Gen., Salem, argued the cause and filed the brief for petitioners on review. With him on the brief were Dave Frohnmayer, Atty. Gen. and William F. Gary, Sol. Gen., Salem. With him on the reply brief was Stanton F. Long, Deputy Atty. Gen., Salem.
Robert L. Nash, Bend, argued the cause and filed the briefs for respondents on review. With him on the brief was Johnson, Marceau, Karnopp & Petersen, Bend.
The plaintiffs brought this action in Lake County to collect damages for the cost of repairs to their pickup truck. The issue of liability was submitted to the trial court on stipulated facts and cross motions for summary judgment. The trial court found for the plaintiffs and entered a judgment for damages in the amount of $2,000. The Court of Appeals, 64 Or.App. 429, 668 P.2d 484 (1983), affirmed. We reverse and remand.
The basic issue is framed by the parties' stipulation:
"This case presents an issue of law, which is whether or not the State of Oregon is obligated to pay just compensation to the owners of private property which is seized for use as evidence in a criminal case, and is damaged in the course of reasonably necessary tests performed in the state's investigation, and which is returned to its owners in its damaged condition when no longer needed for evidentiary purposes."
The plaintiff, Lorena Emery, is the mother of the plaintiff, Richard Emery. The plaintiffs are the owners of a 1977 Ford pickup truck.
On or about December 2, 1979, an altercation occurred between Richard Emery and David Sanchez near Paisley in Lake County, Oregon. The incident took place in and around the Emery pickup truck and resulted in the death of Sanchez.
Richard Emery was arrested and charged with murder. The pickup truck was seized by the state as evidence on a warrant. The state police crime laboratory officers dismantled portions of the pickup truck including the roof, headliner and door panels. A bullet hole was found in the headliner. State officers used the roof panel for ballistics tests to determine the caliber of the firearm and angle of fire.
The murder prosecution was dismissed when Richard Emery entered a negotiated plea of guilty to second degree manslaughter. The pickup truck was then returned to the plaintiffs in a dismantled condition with the roof and other parts removed. An auto body shop estimated that the cost of reasonable and necessary repairs to the pickup truck was the sum of $2,290.90.
This is not a tort case. No party has ever contended that it is. The parties stipulated:
"The seizure of the pickup truck, the dismantling of it and the tests performed by the state on the truck and its parts were reasonably necessary in the course of the state's criminal investigation."
The plaintiffs contend that they are entitled to recover under either of two chief alternate theories: (1) The state is required by ORS 133.623 to 133.663 to return or restore property seized as evidence to its rightful owners in substantially the prior condition or pay damages, or (2) The state's acts were in effect an inverse condemnation wherein the pickup truck was "taken for public use" and the plaintiffs are entitled to "just compensation" under Article I, section 18, of the Oregon Constitution. 1 The trial court found that the plaintiffs were entitled to prevail under their statutory theory while the Court of Appeals found that the state had "taken" the plaintiffs' property for public use and was required to pay "just compensation" under the Oregon Constitution. 2
We find that the plaintiffs are not entitled to recover under either theory and reverse and remand to the trial court to enter summary judgment for the defendants.
The Plaintiffs' Statutory Claim
ORS 133.633 in part provides:
"(b) Any other person asserting a claim to rightful possession of the things seized may move the appropriate court to restore the things seized to the movant." (Emphasis added.)
The plaintiffs contend under ORS 133.633(1)(b) the legislature intended that in addition to restoring possession of the seized property to the owner, the state is also required to restore the property to its previous condition. 3 In other words, they argue that the defendants are required to give the 1977 pickup truck back to them in the same condition it was at the time of the seizure or pay damages. The trial court so held.
The legislature by enacting ORS 133.633 set out two separate classes of people who can file a motion to reclaim property seized by a search warrant: (a) "An individual from whose person, property or premises things have been seized", and (b) "Any other person asserting a claim to rightful possession of the things seized." People in the first class may file the motion "to return things seized", while people in the latter class may file the motion "to restore the things seized." (Emphasis added.)
The use of the different terms of "return" and "restore" by the legislature was not a slip of the pen. The phrase "the return or restoration of things seized" appears in each of the three sections that make up the balance of the statutory scheme (ORS 133.643, 133.653, and 133.663).
The defendants concede that the term "restore" may mean to repair or to bring something back to its previous condition, but point out that it may also mean to "give back or bring back." 4 The term "return" is a synonym of "restore." "Return" also means "to give back." Websters Third New International Dictionary (unabridged) 1941 (1971).
We determine that the legislature used the term "return" in ORS 133.633(1)(a) and the term "restore" in ORS 133.633(1)(b) because it perceived a distinction in the classes of people moving to reclaim the possession of property that had been seized. It placed a tight and limited definition on the term "return" and in effect used it to mean that property could only be "returned" to people and premises from whence it came. Having used a tight definition of "return" in ORS 133.633(1)(a) then the legislature needed a broader term to define the giving back of property to other persons claiming the right to possession under subdivision (b) and chose the word "restore." People in the latter category include the owners of stolen property--their "rightful possession of the things seized" may be "restored."
We hold that the legislature intended that persons under ORS 133.633(1)(b) are entitled only to the restoration of possession of the things seized and that the state is not required to repair or pay damages for any physical injury to the things during the seizure. To hold otherwise and follow the plaintiffs' contention would mean that persons claiming under ORS 133.633(1)(a) would be entitled only to the return of possession of the property seized while those qualifying under ORS 133.633(1)(b) would be able to collect damages. There is no logical basis for such a distinction and we hold that the legislature did not so intend.
Our conclusion in this matter is supported by the Criminal Law Revision Commission's commentary in drafting ORS 133.633:
* * *." Criminal Law Revision Commission, Part II. (Emphasis added.) Pre-Arraignment Provisions, Article V, Search and Seizure, Preliminary Draft No. 2, p. 65-66.
The statutory scheme as a whole (ORS 133.623-.663) is keyed to the question of the return or restoration of the "rightful possession" of the property seized. This is particularly true of ORS 133.643 which sets out the grounds for motions seeking the return or restoration of the property seized. 5 The statute sets out five separate grounds for a motion to support a "valid claim to rightful possession." Nowhere does the statutory scheme make any reference to the restoration of the property seized to its former physical condition. 6
The Plaintiffs' Constitutional Claim
The Oregon Constitution, Article I, Section 18, provides in part:
"Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation * * *."
The Constitution of the United States, Amendment V, provides in part:
" * * * nor shall private...
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