Emery v. State, 9072

• Decision Date: 28 October 1983
• Docket Number: No. 9072,9072
• Parties: Richard Verle EMERY and Lorena Emery, Respondents, v. The STATE of Oregon; the Oregon Department of State Police, a Department and Agency of the State of Oregon, Appellants. ; CA A25025.
• Court: Oregon Court of Appeals

Page 484

668 P.2d 484

64 Or.App. 429

Richard Verle EMERY and Lorena Emery, Respondents, v. The STATE of Oregon; the Oregon Department of State Police, a Department and Agency of the State of Oregon, Appellants.

No. 9072; CA A25025.

Court of Appeals of Oregon.

Argued and Submitted March 23, 1983.

Decided Aug. 31, 1983.

Reconsideration Denied Oct. 28, 1983.

William F. Nessly, Jr., Asst. Atty. Gen., Salem, argued the cause and filed the briefs for appellants. With him on the briefs were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Robert L. Nash, Bend, argued the cause for respondents. With him on the brief was Johnson, Marceau, Karnopp & Petersen, Bend.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

This is a civil case in which plaintiffs seek compensation for damage to a motor vehicle that resulted when state police officers, during a lawful seizure and search, cut holes in the body of the vehicle in search of bullets and ballistics data to be used as evidence in a homicide prosecution. The specific issue presented is whether the state must pay for private property, not contraband or otherwise subject to forfeiture, which is lawfully seized for evidentiary use in a criminal investigation and which is necessarily damaged or destroyed by the state in the performance of necessary investigative examinations and tests. From a judgment for plaintiffs in the amount of $2,100 damages and $1,508 in attorney fees, ¹ rendered on cross motions for summary judgment, the state appeals. We affirm.

The parties stipulated to the pertinent facts:

"Plaintiffs and defendant State of Oregon and Oregon Department of State Police stipulate as follows:

"1. The parties agree to submit this matter to the court for decision on stipulated facts, based upon the following stipulated facts, the authorities presented in the State's Motion to Dismiss, and the authorities presented in plaintiffs' Counter Motion for Summary Judgment, and the court's file herein.

"2. Plaintiffs Richard Emery and his mother Lorena Emery are the owners of a 1977 Ford pickup truck, Oregon license number GKF761.

"On or about December 2, 1979, near Paisley, Lake County, Oregon, an altercation occurred between Richard Emery and David Sanchez in and around the Emery pickup truck. The incident resulted in the death of David Sanchez.

"Richard Emery was arrested and charged with murder, and the pickup truck, several firearms and other items were seized by the State of Oregon for evidentiary purposes on a warrant issued at the request of the Lake County District Attorney's Office.

"During the investigation, state police crime lab officers operating under the direction of the Lake County District Attorney's Office dismantled portions of the pickup truck including the roof, headliner, door panels and other parts. A bullet hole was found in the headliner of the pickup cab. State officers cut off the roof and used the roof panel for ballistics tests to determine the caliber of the firearm, angle of fire, etc. 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.

"3. * * * The murder prosecution was settled and dismissed on a negotiated plea to second degree manslaughter. * * *

"After the case was settled, the property seized from the Emerys was returned, including the pickup truck. However, the truck was returned in its dismantled condition with the roof, windshield and other parts removed. A repair estimate prepared by Dave's Body Shop, Bend, dated August 13, 1980 shows a total cost of $2,290.90 for reasonable and necessary repairs to the pickup. The Emerys also incurred reasonable and necessary towing expenses of $40.00.

"4. 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.

"5. The parties stipulate that this court has jurisdiction to decide this case based upon the records and files herein, the stipulated facts, and the arguments of counsel to be presented at the November 20, 1981 hearing.

"6. If the plaintiffs prevail, plaintiffs are entitled to an award of reasonable attorney fees pursuant to ORS 20.080 as part of plaintiffs' costs and disbursements."

Plaintiffs, in their brief, make their approach to the problem very explicit:

"This is not a tort action. Plaintiffs do not claim that the conduct of the police in seizing the pick-up truck and thereafter dismantling it was in any way wrongful or unnecessary. Plaintiffs stipulated that the seizure of the 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."

Plaintiffs relied on three distinct theories in contending that statutory, common law and constitutional authorization exists to maintain a cause of action to recover compensation for damage to lawfully seized property that reasonably resulted from a police examination of the property for evidence of crime. Plaintiffs claim that ORS 133.633, in addition to requiring the physical return of property lawfully subjected to seizure and investigation, authorizes an award of damages for the repair of that property. They also contend that the lawful seizure of the property creates a constructive bailment under which the police either must preserve the property from damage, including damage which necessarily results from examination or analysis of the property for evidence of crime, or must pay for the damage that arises in the course of police custody. Finally, plaintiffs maintain that the damage to the truck attains the status of a "taking" for which Article I, section 18 of the Oregon Constitution requires the payment of compensation. We consider the last theory first.

The Oregon Constitution, Article I, Section 18, provides, in pertinent part:

"Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; * * *." (Emphasis supplied.)

There is no question that a motor vehicle is "property" under section 18:

" * * * Property is property, whether it consists of much or little, or is of large or small value. If it is owned by an individual and has a lawful use, the individual is entitled to the constitutional protection, and it should not be denied him by the courts." Bowden v. Davis, et al, 205 Or. 421, 434, 289 P.2d 1100 (1955) (holding that a horse is "property" under section 18).

The state, apparently accepting the idea that the vehicle in this case is "property," urges that there has been no "taking":

"Article I, section 18 makes no provision for compensation for property which is not taken, but merely damaged. Moeller et ux v. Multnomah County, 218 Or. 413, 425-26, 345 P.2d 813 (1959). Therefore, in order to claim compensation under plaintiffs' inverse condemnation theory, plaintiffs must allege facts which amount to a 'taking' of their pickup truck. Here, when the facts of police seizure and possession of the vehicle are properly laid aside, and the focus is limited to the acts which resulted in the damage, it is clear that the damaging search constituted a single, isolated act which did not itself affect either plaintiffs' title in or right to possession of the vehicle. See Moeller, supra, 218 Or. at 429-30 . The damaging search amounted only to a temporary interference with the plaintiffs' rights in the truck, little different in effect from the situation in which a state vehicle collides with a private automobile. Under these circumstances, the truck was merely damaged, and not appropriated for public use. Article I, section 18 therefore does not authorize the recovery of damages for the injury done to the truck."

We disagree.

Plaintiffs' constitutional theory is "inverse condemnation." The Oregon Supreme Court made the following summary of Oregon law on this subject in Moeller et ux v. Multnomah County, supra, 218 Or. at 427, 345 P.2d 813, the case on which the state relies:

"In each of the Oregon cases * * * on the subject of inverse condemnation, there has been a substantial taking or destroying of the individual's property. * * * [T]he taking has deprived the owner of a substantial part of his property as well as the use thereof, and usually permanently.

" * * *

" * * * [T]he people of Oregon have not seen fit to amend their constitution to include 'damage' with 'taking' so as to waive the immunity of the state or county in those actions for damages which do not amount to a taking."

Moeller presents a somewhat circular definition. It is clear, on the one hand, that the Oregon Constitution requires just compensation for any "taking," but not for mere damage. On the other hand, however, "taking" seems to mean, in the Moeller court's view, damage sufficient constitutionally to require just compensation.

The facts of the leading cases are not the best guideposts, either. In Moeller, it was held that intermittent blasting, which deposited dust but not rocks or debris on plaintiff's property, was not a "taking." By contrast, in Tomasek v. Oregon Highway Comm'n, 196 Or. 120, 146-150, 248 P.2d 703 (1952), it was held that, where construction of a highway bridge over a river resulted in a narrowed river channel and then resulted in erosion of a portion of plaintiff's downstream property, there had been a "taking." Accord, Morrison v. Clackamas County, 141 Or. 564, 18 P.2d 814 (1933). A more recent case, State ex rel Dept. of Trans. v. Glenn, 288 Or. 17, 602 P.2d 253 (1979), is closer on its...