State Forester v. Umpqua River Nav. Co.

• Decision Date: 23 December 1970
• Citation: 258 Or. 10,478 P.2d 631
• Parties: State of Oregon, acting by and through its STATE FORESTER, and Western Lane Forest Protective Association, a nonprofit corporation of the State of Oregon, Appellants and Cross-Respondents, v. UMPQUA RIVER NAVIGATION COMPANY, an Oregon corporation, Respondent and Cross-Appellant.
• Court: Oregon Supreme Court

Page 631

478 P.2d 631

258 Or. 10

State of Oregon, acting by and through its STATE FORESTER and Western Lane Forest Protective Association, a nonprofit corporation of the State of Oregon, Appellants and Cross-Respondents, v. UMPQUA RIVER NAVIGATION COMPANY, an Oregon corporation Respondent and Cross-Appellant.

Supreme Court of Oregon.

Argued and Submitted July 14, 1970.

Decided Dec. 23, 1970.

John W. Osburn, Asst. Atty. Gen., Salem, argued the cause for appellants and cross- respondents. With him on the briefs were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Thomas C. Stacer, Asst. Atty. Gen., Salem, and Geddes, Felker, Walton & Richmond, Roseburg.

Bruce Spaulding, Portland, argued the cause for respondent and cross-appellant. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson and Manley B. Strayer, Portland.

Before O'CONNELL, C.J., and SLOAN, ^* DENECKE, HOLMAN, HOWELL, SCHWAB and LANGTRY, JJ.

DENECKE, Justice.

The plaintiffs are the State Forester and a governmental Subdivision created for fire fighting purposes. Plaintiffs brought this statutory proceeding to recover the fire suppression costs incurred in fighting a large forest fire known as the Oxbow fire. Plaintiffs allege that the fire was started by the negligence of the defendant. A jury returned a verdict for defendant and plaintiffs appeal.

On August 20 the defendant, Umpqua River Navigation Company, was working on a federal contract to resurface a forest road. Umpqua spread gravel and then compacted it by running a roller over it. On that date, at a place near where the roller was operating, several fires broke out which allegedly originated the Oxbow fire. On August 21 an investigator for the State Forester observed Umpqua's orad roller parked on the forest road near the area where the fire allegedly started. The investigator suspected that the fire might have been caused by the roller emitting sparks. During the next few days while the fire was still going, he brought several mechanics and others to examine the roller. These persons took off the exhaust stack to look for carbon and removed carbon specimens for laboratory testing. They also took off the air cleaner for inspection and operated the roller in a limited area. All this was without the knowledge or consent of Umpqua.

The plaintiffs subsequently commenced this action against Umpqua alleging, among other things, that it was negligent in operating a roller which threw sparks and caused the fire. The defendant filed an equitable answer alleging that because of plaintiffs' inspection and operation the roller was altered and Umpqua was prevented from subsequently conducting relevant tests to demonstrate its freedom from negligence. Defendant asked that any evidence plaintiffs obtained from these inspections and tests should, therefore, be suppressed and plaintiffs should be enjoined from proceeding with this litigation against defendant. Defendant also filed a motion to suppress all evidence obtained as a result of plaintiffs' inspection and testing of the roller. After an evidentiary hearing in equity, the trial court held the equitable defense had not been made out; however, the motion to suppress was granted and plaintiffs assign this as error.

The motion to suppress did not specify any particular legal basis. The trial court memorandum and the briefs on appeal, however, are clear that the defendant before the trial court and on appeal based its contention on constitutional grounds. Defendant contends that the Fourth Amendment to the United States Constitution and Art. I, § 9, of the Oregon Constitution, prohibiting unreasonable search and seizure, have been violated. The defendant further contends that under the principle of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961), and the Oregon law preceding Mapp v. Ohio, for example, see State v. McDaniel, 115 Or. 187, 209, 231 P. 965, 237 P. 373 (1925), evidence discovered or seized in violation of the constitutional prohibition against unreasonable search and seizure is inadmissible. Defendant contends that this principle rendering the evidence inadmissible is as applicable in a civil proceeding in which the state is seeking to introduce the evidence as it is in a criminal proceeding. The trial court suppressed the evidence upon the ground that the search was unconstitutional.

Umpqua contends the search and seizure was unconstitutional because it was accomplished by trespasses upon Umpqua's personal property and by violation of criminal statutes prohibiting entry on or injury to motor vehicles. ORS 164.650, 164,660 and 164.670.

The plaintiffs argue that whatever search and seizure occurred, it was not in violation of the federal and state constitutions, and, furthermore, admitting for the purpose of argument that it was in violation, the evidence obtained thereby should not be excluded because this is a civil proceeding, not a criminal case. This latter issue is the basis for our decision. We do not intend thereby to infer that an illegal search and seizure was made. If an enclave of privacy is what is protected by the Fourth Amendment, we have doubt whether any enclave of privacy was penetrated in this case.

The exclusionary rule, where it is applicable, is now required by the federal constitution. Mapp v. Ohio, supra, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Our analysis of the decisions of the United States Supreme Court leads us to the same conclusion as that of the Second Circuit. 'Widespread uncertainty is prevalent on the issue of whether evidence, inadmissible in a criminal case, can be used for other purposes, and the Supreme Court has yet to resolve the problem.' Pizzarello v. United States, 408 F.2d 579, 585 (2d Cir. 1969). Mapp itself gives no express clue. It was a criminal case.

The closest in point is One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). In that case state law enforcement officers on the suspicion that the occupants of a car were violating the state liquor laws, stopped a car. They searched the car and found untaxed liquor. The car and the liquor were seized and the state started a statutory proceeding to forfeit the car. In that proceeding the trial court found the forfeiture could be sustained only upon the basis of evidence that was obtained in violation of the federal constitutional provision barring illegal search and seizure. The forfeiture was, therefore, dismissed. The Pennsylvania Superior and Supreme Courts both held contrary to the trial court upon the ground that the forfeiture proceeding was a civil proceeding and the exclusionary rule was only applicable in criminal prosecutions. Com. v. One 1958 Ply. Sdn. (McGonigle), 199 Pa.Super. 428, 186 A.2d 52 (1962), 414 Pa. 540, 201 A.2d 427 (1964). The United States Supreme Court held the exclusionary rule was applicable to the forfeiture proceeding. The primary reason for the holding was 'a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law.' 380 U.S. at 700, 85 S.Ct. at 1250.

The court relied upon Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1885). In that case the United States Attorney filed a forfeiture proceeding against items seized for failure to pay custom duties. An act of Congress provided that the government could secure an order of the court requiring the importer of the merchandise to bring into court the invoice for the merchandise. The Court held the statute unconstitutional because it authorized an unconstitutional search and seizure. The Court in Boyd stated:

'* * * We are also clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they (the proceedings) may be civil in form, are in their nature criminal. * * *. The information, though technically a civil proceeding, is in substance and effect a criminal one. * * *. As, therefore, suits for penalties and forfeitures, incurred by the commission of offences against the law, are of this quasi criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the fourth amendment of the Constitution * * *.' 116 U.S. at 634, 6 S.Ct. at 534.

The present case does not have any criminal character. The proceeding is to recover actual costs and nothing more.

Umpqua strongly urges that Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), are dispositive. In both, the Court held that under the Fourth Amendment a person could not be convicted for refusing to allow an administrative inspection without a warrant. Camara involved an inspection to determine whether the building code was violated and in See there was a fire safety inspection. These decisions do extend the Fourth Amendment beyond its previous application only to law enforcement officers. They do not, however, pass upon the question of whether or not evidence secured in an administrative search without a warrant and, therefore, in violation of the Fourth Amendment, will be excluded from evidence in a subsequent civil action.

The decisions of some federal and state courts hold that evidence seized in violation of the Fourth Amendment is inadmissible in a civil case. The trial court in the instant case relied heavily upon a recent federal trial court decision, a treble damage anti-trust case, excluding illegally seized evidence.

Rogers v. United States, 97 F.2d 691 (1st Cir. 1938), was a civil action for custom duties and the court held illegally obtained evidence inadmissible. The court relied upon a statement of Mr. Justice Holmes in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426 (...