State v. Barnum

• Decision Date: 23 August 1995
• Citation: 136 Or.App. 167,902 P.2d 95
• Parties: STATE of Oregon, Appellant, v. Byron Franklin BARNUM, Respondent. 92 CR 0200; CA A79301.
• Court: Oregon Court of Appeals

Page 95

902 P.2d 95

136 Or.App. 167

STATE of Oregon, Appellant, v. Byron Franklin BARNUM, Respondent.

92 CR 0200; CA A79301.

Court of Appeals of Oregon.

Argued and Submitted Dec. 23, 1994.

Decided Aug. 23, 1995.

[136 Or.App. 168-A] Douglas F. Zier, Assistant Attorney General, argued the cause for appellant. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

[136 Or.App. 168-B] David E. Groom, Deputy Public Defender, argued the cause for respondent. With him on the brief was Sally L. Avera, Public Defender.

Byron Franklin Barnum filed the supplemental brief pro se.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, ^* JJ.

ARMSTRONG, Judge.

Defendant was indicted on two counts of first degree arson, four counts of first degree burglary and one count of second degree burglary. The state appeals from a pretrial order suppressing evidence seized pursuant to ten search warrants. We review for errors of law, ORS 138.220, and affirm.

In January 1991, defendant was arrested during a break-in at a doctor's office. Defendant's arrest caused police to reopen an earlier investigation that had involved a series of threatening phone calls and letters sent to one of the doctor's employees and other letters forged on the doctor's stationery. Based on their investigation, police believed that defendant was the person who had composed all of the letters.

In February 1991, police searched defendant's home. They seized several legal files belonging to a local law office and a two-page letter that appeared to be handwritten by defendant. The police contacted the law firm, and it confirmed that the files had been stolen from its office along with some of its letterhead stationery. Two letters had been forged on the stationery.

Police officers sent the handwritten letter seized from defendant's home to the Oregon State Crime Laboratory (the lab) for analysis to determine whether defendant had forged the two letters on the legal stationery and the two letters on the doctor's stationery. The lab reported that the samples of defendant's handwriting did not contain enough handwritten material to determine whether defendant had written the forged letters. The lab suggested that the police send additional samples of defendant's handwriting for further examination.

In August 1991, defendant appeared in circuit court for a pretrial hearing on charges related to the break-in at the doctor's office. Officers Grow and Runyon attended the hearing. They intended to arrest defendant on a charge of theft by receiving, based on the stolen legal files recovered from his home. During the hearing, the detectives observed defendant writing on several sheets of paper and in a small spiral notebook. He later placed the papers in two manila folders and the notebook in his shirt pocket. At the conclusion of the hearing, at the request of the prosecutor, the court ordered defendant to provide a handwriting exemplar.

As defendant was leaving the courtroom, the detectives approached him to escort him downstairs to the police station to provide the handwriting sample. Defendant refused. Runyon then arrested defendant on the charge of theft by receiving and seized the manila folders. As Runyon was handcuffing defendant, defendant motioned to his attorney to retrieve the notebook from his pocket. When the attorney tried to take the notebook, Grow seized it.

The officers briefly read the notebook and then sent it to the lab for comparison with the earlier letters. The examiner issued a report stating that the notebook had been examined and that, based on that examination, defendant was "not identified as writing the questioned documents." After the notebook was returned to the officers, they read it at length and discovered facts that led them to procure and execute ten search warrants. The officers never sought nor obtained a warrant to read the notebook.

Defendant moved to suppress all evidence that resulted from the officers' reading of the notebook. The trial court found that the officers had probable cause to believe that defendant's papers and notebooks contained evidence of a crime and that exigent circumstances justified the officers' seizure of the notebook. The court went on to find, however, that a "valid privacy interest still existed in the contents of the notebook," and that the officers' "detailed examination of the notebook after the seizure was improper without a search warrant." Thus, the court granted defendant's motion to suppress the contents of the notebook as well as all evidence derived from the contents.

On appeal, the state agrees with the trial court's conclusion that the initial seizure of the notebook was lawful, but argues that the trial court erred in determining that the subsequent reading of it was improper. It contends that the officers were entitled to peruse briefly the contents of the notebook to look for appropriate handwriting samples. The state concludes that, "[b]ased on the information they lawfully observed in plain view during the initial examination, the police were entitled to scrutinize the entire contents of the notebook more closely at any time they wanted."

Defendant argues that all reading of the notebook was unlawful. Additionally, as an alternative basis for affirming the suppression order, defendant argues that the initial seizure of the notebook was unlawful, because there were not exigent circumstances to justify the warrantless seizure. Because we determine that the officers' conduct in reading the notebook to look for examples of defendant's handwriting constituted an unlawful search, and therefore affirm the trial court's suppression order, we need not address defendant's contention that the seizure was unlawful.

Article I, section 9, of the Oregon Constitution provides:

"No law shall violate the right of the people to be secure in their person, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

It provides safeguards against searches and seizures and, hence, protects both privacy and possessory interests. State v. Owens, 302 Or. 196, 205, 729 P.2d 524 (1986); State v. Binner, 131 Or.App. 677, 680, 886 P.2d 1056 (1994). As a general rule, a warrantless search or seizure is per se unreasonable unless it falls within one of the limited exceptions to the warrant requirement. State v. Stevens, 311 Or. 119, 126, 806 P.2d 92 (1991); State v. Follett, 115 Or.App. 672, 675, 840 P.2d 1298 (1992), rev. den. 317 Or. 163, 856 P.2d 318 (1993).

We first address whether the initial opening of defendant's notebook and the reading of its contents to look for handwriting samples was a "search" under the Oregon Constitution and, if it was, whether it was justified under one of the few, carefully circumscribed exceptions to the warrant requirement. Defendant argues that he had a valid privacy interest in the contents of his notebook and that this interest was invaded when the officers opened and read the notebook. The trial court agreed and determined that a "valid privacy interest still existed in the contents of the notebook."

Under Article I, section 9, a search occurs when a government agent intrudes upon a person's privacy interests. State v. Wacker, 317 Or. 419, 425, 856 P.2d 1029 (1993); State v. Rhodes, 315 Or. 191, 196, 843 P.2d 927 (1992); Owens, 302 Or. at 206, 729 P.2d 524. Here, the officers' actions constituted an intrusion. The officers opened the cover of the notebook, exposing the contents to an inspection that could not have been achieved without the intrusion. See Rhodes, 315 Or. at 196-97, 843 P.2d 927 (opening car door from three to four inches open to completely open constituted a search). The question, then, is whether defendant had a privacy interest in the contents of the notebook.

The privacy protected by Article I, section 9, is "not the privacy one reasonably expects but the privacy to which one has a right." State v. Campbell, 306 Or. 157, 164, 759 P.2d 1040 (1988).

"The privacy interests protected from unreasonable searches under Article I, section 9, are defined by an objective test of whether the government's conduct 'would significantly impair an individual's interest in freedom from scrutiny, i.e., his privacy.' "

State v. Wacker, 317 Or. at 425, 856 P.2d 1029 (quoting State v. Dixson/Digby, 307 Or. 195, 211, 766 P.2d 1015 (1988)). If no privacy interest is affected, no search has occurred under Article I, section 9.

The state argues that reading the notebook to look for handwriting samples did not intrude upon a valid privacy interest defendant had in the notebook and, thus, was not a search. It contends that handwriting exemplars, like fingerprints and voice exemplars, are evidence of identity and, as such, do not involve a privacy interest. See State v. Fisher, 242 Or. 419, 422, 410 P.2d 216 (1966) (handwriting); State v. Davie, 56 Or.App. 507, 517 n. 5, 642 P.2d 680, rev. den. 293 Or. 146, 651 P.2d 143 (1982) (voice).

The basis of its contention is that "evidence of identity is not testimonial or communicative" and does not implicate a privacy right. See Fisher, 242 Or. at 422, 410 P.2d 216 (court unable to find reason to hold that "person whose handwriting has been secured for comparison has had his constitutional * * * privilege against self-incrimination invaded"). Thus, the state reasons that the compelled production of a handwriting exemplar does not implicate an Article I, section 9, privacy right.

A determination that a handwriting exemplar is not testimonial or communicative would allow for its compelled production without violating the Article I, section 12, protection against self-incrimination. But the process by which the exemplar is obtained still must satisfy the strictures of ...