State v. Davis

• Decision Date: 29 June 1983
• Citation: 295 Or. 227,666 P.2d 802
• Parties: STATE of Oregon, Respondent on Review, v. Jerry Wallace DAVIS, Petitioner on Review. CA A23060, SC 28881. . *
• Court: Oregon Supreme Court

Page 802

666 P.2d 802

295 Or. 227

STATE of Oregon, Respondent on Review, v. Jerry Wallace DAVIS, Petitioner on Review.

CA A23060, SC 28881.

Supreme Court of Oregon In Banc. ^*

Argued and Submitted Nov. 3, 1982.

Decided June 29, 1983.

[295 Or. 228-A] Phillip A. Lewis, Portland, argued the cause and filed the brief for petitioner on review.

Richard David Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem. CARSON, Justice.

Defendant was convicted of Possession of a Controlled Substance and being an Exconvict in Possession of a Firearm. He seeks to suppress evidence obtained during a warrantless entry and search of his motel room and search of his person after arrest. This case presents for our consideration the permissible limits of police conduct undertaken upon at most a reasonable suspicion but without probable cause to believe that Defendant committed a crime.

FACTS

Nine police officers responded to a report of a fight at a North Portland motel. The police found no fight when they arrived. Instead, they were approached by a man who said his girlfriend might be being raped in room number nine by a man he had seen with an automatic pistol in his waistband. With guns drawn, two of the police officers knocked on the door of room nine and announced their presence. After some delay and the sound of shuffling from inside, the door opened and a woman walked out. According to police testimony, she was fully clothed and did not appear disheveled or frightened. She walked past the officers and neither of them questioned her. Through the half-open door police observed Defendant behind the door. They ordered him to come from behind the door with his hands in view. He complied.

The police then reholstered their weapons and entered the room. One officer asked Defendant if he had a gun and he replied in the negative. Another officer observed an empty holster protruding from a backpack on the bed. Defendant told the police he did not want them in his room. When he tried to walk toward the door one officer restrained him in a wrist control hold. ¹ Meanwhile, the others searched the room. No one frisked Defendant, nor did anyone question him about the woman's presence in the room.

The police found a gun under the mattress and drugs in another backpack in the room. ² Defendant was then placed under arrest. ³ A search of Defendant's person incident to the arrest uncovered drugs in a cigarette package in Defendant's pocket. Sometime after the arrest police learned that Defendant was a former felon.

We are concerned here with the validity of two searches and two seizures, that of the motel room which disclosed the gun, and that of Defendant's person which uncovered drugs. The state presents arguments to justify each search. The state relies on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); and State v. Riley, 240 Or. 521, 402 P.2d 741 (1965), for the proposition that any reasonable action undertaken to ensure the safety of the investigating officers is constitutionally permissible. The search of Defendant's person occurred, according to the state, as an incident to a lawful arrest. In the state's view, it is immaterial that probable cause did not arise until after the arrest because the search incident to arrest was "reasonably contemporaneous" with the development of probable cause to arrest.

The trial court denied Defendant's motion to suppress these items based on a conclusion that the police officers were faced with an emergency and had a right to "neutralize" the scene in order to continue their investigation. Defendant argues that both searches were unreasonable in that the police, prior to their entry into the motel room, had neither probable cause to believe that he had committed a crime nor exigent circumstances to justify the entry. Defendant relies on both the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Oregon Constitution. ⁴ He also cites, for the first time in his petition to this court, Oregon's "stop and frisk" law, ORS 131.605 to 131.625, as governing both the authority for and the limitations on police detention of persons based only on a reasonable suspicion.

In this case, as in most that reach the appellate courts, legal analysis of the officers' actions arises from the prosecution's use of evidence seized from Defendant to obtain his conviction. The state's response to the petition contends that whether the seizure of the evidence was lawful or unlawful on either statutory or constitutional grounds should not lead to its exclusion in Defendant's trial because an officer who reasonably fears for his or her safety will not be deterred thereby. As the application of the exclusionary rule is questioned in this and many other cases, we review the basis upon which unlawfully seized evidence has been held inadmissible in this state.

It is generally said that the rule excluding from criminal prosecutions evidence obtained by an illegal search or seizure originated in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). That is not strictly accurate. State courts had so held before Weeks. In 1901, the Supreme Court of Vermont, for instance, held inadmissible in a larceny prosecution a letter seized from the defendant in the course of executing a warrant that authorized a search for stolen goods but did not cover the letter. State v. Slamon, 73 Vt. 212, 50 A. 1097 (1901). Two years later the Iowa Supreme Court ordered the exclusion of evidence that had been seized under an invalid search warrant. State v. Sheridan, 121 Iowa 164, 96 N.W. 730 (1903). This was a minority view, see contrary holdings collected in 24 A.L.R. 1408 (1923); and before those decisions Oregon had joined the majority in theory, see State v. McDaniel, 39 Or. 161, 65 P. 520 (1901), although the evidence in that case probably was validly seized.

The significance of these early cases denying the use of illegally seized evidence, however, lies in their reasons. " '[A] party to a suit can gain nothing by virtue of violence under the pretense of process, nor will a fraudulent or unlawful use of process be sanctioned by the courts,' " wrote the Iowa court. " 'In such cases parties will be restored to the rights and positions they possessed before they were deprived thereof by the fraud, violence, or abuse of legal process.' " 96 N.W. at 731 (quoting from State v. Height, 117 Iowa 650, 91 N.W. 935).

The court acknowledged prevailing caselaw that courts would not stop proceedings to inquire how evidence was procured nor question evidence unlawfully taken by persons without color of official authority. But this could not allow the state to convict a man by evidence seized under an invalid warrant. "To so hold is to emasculate the constitutional guaranty, and deprive it of all beneficial force or effect in preventing unreasonable searches and seizures." 96 N.W. at 731.

Similarly, the Vermont court had distinguished between private and official illegality. The rule that a court would not inquire how a party procured evidence was subject to another rule, "that, when a party invokes the constitutional right of freedom from unlawful search and seizure, the court will take notice of the question and determine it." 50 A. at 1098. Moreover, the seizure by official force of incriminating evidence from a defendant's possession in effect "compelled [defendant] to give evidence against himself," contrary to another guarantee of the Vermont Constitution. Id. at 1099.

The antecedents cited for this pre-Weeks view of the relation between the guarantee against unlawful searches and seizures and its consequences in criminal trials were the Supreme Court's exposition of that functional relationship in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) and its famous predecessor Entick v. Carrington, 3 Burr. 1742, 19 How.St.Tr. 1001, 1029 (1765), which was the recognized source of the American guarantees. The same opinions were the basis for the Supreme Court's decision in Weeks against the government's use of such evidence. See also People v. Marxhausen, 204 Mich. 559, 171 N.W. 557 (1919); Fraenkel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361 (1920). The reason stated in Weeks why the government could not convict a defendant by evidence which its officers had unlawfully seized was neither to penalize those officers nor to deter them or others in the future, but to effectuate the law in the pending case.

"If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land."

232 U.S. at 393, 34 S.Ct. at 344.

Following Weeks, this court expressed its approval of the reasoning of that opinion. State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290 (1922). The court acknowledged its earlier rulings that courts "ordinarily" would not inquire during a trial into the collateral issue of how evidence was secured, but it treated this as a question of the timing of the defendant's demand:

"If, however, the accused does not know until the paper or other article is offered in evidence that it was obtained by an unlawful seizure, he is nevertheless entitled at that time to an order of the court directing a return of...