State v. Brown

• Decision Date: 15 January 1992
• Citation: 110 Or.App. 604,825 P.2d 282
• Parties: STATE of Oregon, Respondent, v. Samuel Lee BROWN, Appellant. C88-09-36545; CA A62322.
• Court: Oregon Court of Appeals

Page 282

825 P.2d 282

110 Or.App. 604

STATE of Oregon, Respondent, v. Samuel Lee BROWN, Appellant.

C88-09-36545; CA A62322.

Court of Appeals of Oregon.

Argued and Submitted May 24, 1991.

Decided Jan. 15, 1992.

Jesse Wm. Barton, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

DE MUNIZ, Judge.

Defendant was convicted on two counts of theft in the first degree by receiving. ORS 164.055. He assigns as error the trial court's denial of his motion to suppress evidence found during a warrantless search of his automobile. We reverse.

Defendant was on parole when he was arrested. Among his conditions of parole was this special condition:

"Parolee is to submit person, residence, vehicle and property to search by a parole officer having reasonable grounds to believe such search will disclose evidence of parole violation."

See OAR 255-70-001, Ex. J, Special Conditions, p 1. On August 31, 1988, defendant's parole officer, Guice, visited defendant at his home and saw a "drug scale," some baggies, a bullet and a couple of knives on a table. He also observed that defendant appeared to have money, but no job, that he kept a pit bull dog and that the residence had an alarm system. On the basis of his observations, Guice decided to search defendant's "residence, vehicles, [and] any property belonging to defendant at that site."

On September 21, Guice went to the residence with a search team that included police officer Hascall. Defendant was not home, so they waited. When defendant arrived, Guice told him that they were there to search his "person, property and vehicles." Defendant let them into the house. During the search, defendant asked if he could change into another pair of pants. Guice and Hascall consented. Before changing, defendant told the officers to search the pants first. Their examination revealed $920 and two or three sets of car keys, which were placed on the bed. According to Hascall, defendant "reached over and he grabbed the three sets of keys and clutched them in his fist." Hascall asked defendant to return the keys to the bed. Defendant either said "What keys?" or "You don't need those keys." Hascall testified that defendant put two sets on the bed, but "palmed" one set, "tr[ying] to conceal that he had the third set in his hand." Hascall told defendant to put that set on the bed. He testified that defendant "began getting excited and belligerent," so the officers handcuffed him and took the keys from his hand.

Hascall used the keys to open defendant's automobile. Other officers searched two other cars, more or less simultaneously. Hascall found the stolen goods in the trunk of defendant's car. Another officer found six ounces of cocaine in one of the other cars. At some point, an officer found a bag of cocaine in the house, but Hascall did not find out about it until after the cars had been searched.

The trial court's findings were cursory:

"[W]hen the sets of keys * * * were displayed, the Defendant tried to retrieve them, and the Defendant's statement regarding something to the effect of 'What keys' shows he didn't want to give up possession of the keys; that only on police request did the Defendant return some of the keys, and that the remaining keys were forcibly taken from the defendant. It seems clear to me that the Defendant did not consent to the search of the vehicles in question, and that it was clear that any consent to search up to that point did not include the vehicles."

The court made no findings as to whether defendant tried to hide the keys or whether he became belligerent only after Hascall told him to give up the keys.

At the conclusion of the hearing on defendant's motion to suppress, the court orally ruled that defendant did not consent to the search of his cars and that "any consent to search up to that point did not include the vehicles." However, the court later reversed itself in a letter ruling, concluding that

"defendant did agree when paroled, to submit to a search of his person, premises or vehicle. The parolee's later consent to search is not required."

With the repeal of the Civil Death Statute in 1975, convicted felons no longer automatically lose all their civil rights. ¹ ORS 137.281 suspends certain rights during incarceration and automatically restores them upon release or parole. Except as limited by his conditions of parole, defendant had the same rights upon parole as any other citizen. The only limitation on defendant's right to be free from unreasonable searches and seizures was the requirement that he would submit to a search if his parole officer had reasonable grounds to believe that the search would disclose evidence of a parole violation.

Defendant argues that Guice did not have reasonable grounds to search the cars. He concedes that, if Guice did have reasonable grounds, refusal to submit would have violated the parole conditions and subjected him to revocation. ORS 144.343. However, defendant contends that his refusal would not have authorized a nonconsensual search without a warrant, because none of the exceptions to the warrant requirement applied. We conclude that Guice did not have reasonable grounds to believe that the cars contained evidence of a parole violation and that their search was unlawful.

When Guice visited defendant's residence on August 31, 1988, he observed, among other things, a drug scale that reasonably suggested that defendant was selling drugs. In the light of the fact that defendant appeared to have money, but no job, Guice reasonably believed that defendant's drug sales were ongoing. The 3-week interval between his initial visit and the search did not render the information from Guice's initial observations unreliable. When he went to defendant's home on September 21, he had reasonable grounds to believe that a search of defendant's residence would disclose evidence of a parole violation.

Regardless of whether a search is authorized by probable cause, reasonable suspicion or "reasonable grounds," ² the state must have an articulable basis for invading any privacy interest. Defendant's "person, residence, vehicle and property" each represent distinct privacy interests protected by Article I, section 9, and the Fourth Amendment. The search of defendant's cars was valid only if Guice had reasonable grounds to believe that evidence of a parole violation would be found in the cars.

Guice had observed things in defendant's house that made him suspect that defendant was selling drugs. However, those things had no necessary nexus to the cars. Therefore, when Guice began to search defendant's home, he had no articulable basis for believing that the cars contained evidence of a parole violation. The state concedes that the incident with the keys was all that directed the officers to look in defendant's cars. Defendant contends that, by retaining the keys, he was merely asserting his right not to have the cars searched. The state responds that there is "a difference between asserting a constitutional right and attempting to hide evidence from the officers."

In United States v. Alexander, 835 F.2d 1406, 1409 n. 3 (11th Cir.1988), the court noted that

"a defendant's refusal to consent to a search cannot establish probable cause to search. A contrary rule would vitiate the protections of the Fourth Amendment."

Oregon Courts have reasoned similarly. In State v. Evans, 16 Or.App. 189, 517 P.2d 1225, rev. den. (1974), an officer encountered the defendant in the street at 3:17 in the morning. The officer asked him what was in his jacket pockets, and he answered, "Golf balls." After the defendant removed a golf ball from one of his pockets, the officer asked to see what was in the other pocket. The defendant said that he did not want to show the officer and turned away. The officer bent down to view what was in the pocket and observed a plastic bag containing marijuana. 16 Or.App. at 192, 517 P.2d 1225. In affirming the trial court's decision to suppress the evidence, we said:

"The defendant, by refusing to disclose the contents of his other pocket and by turning to avoid observation was guilty only of an unsophisticated attempt to assert his right to privacy and would clearly, had he felt free, have walked away." 16 Or.App. at 197, 517 P.2d 1225.

In State v. Gressel, 276 Or. 333, 554 P.2d 1014 (1976), the defendant was stopped by a police officer because he matched the description of a burglary suspect. When the officer asked if he could search the defendant, he replied that he did not want to be searched, because he was on parole. The officer patted the defendant down for weapons and felt two soft bulges in his jacket pockets. The officer asked the defendant what was in his pockets, and the defendant responded by saying, "Nothing." The officer then reached into one of the defendant's pockets and withdrew a bag of marijuana. 276 Or. at 336, 554 P.2d 1014. In reversing the conviction, the Supreme Court held:

"If refusal to be searched were to furnish probable cause to search, anyone could be searched against his will. A mere assertion of one's constitutional rights cannot be a basis for depriving an individual of those rights. We view defendant's response to the inquiry concerning the contents of his pockets as merely an unsophisticated attempt to assert his right of privacy.

" * * * * *

"Defendant's refusal to give consent to a search undoubtedly caused the officer to have a healthy suspicion that defendant was probably in illegal possession of something; but such a suspicion, however well founded, having been aroused merely on the basis of an assertion of one's constitutional rights, can play no part in creating...