State v. Emery, C
| Decision Date | 02 July 1979 |
| Docket Number | No. C,C |
| Citation | 597 P.2d 375,41 Or.App. 35 |
| Parties | STATE of Oregon, Respondent, v. Roland Eugene EMERY, Appellant. 78-01-00582; CA 11911. |
| Court | Oregon Court of Appeals |
James E. Mountain, Jr., Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
W. Benny Won, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Before SCHWAB, C. J., and TANZER, RICHARDSON and ROBERTS, JJ.
Defendant seeks reversal of his conviction for first degree robbery, ORS 164.415. His third assignment of error, the only one meriting published discussion, challenges the trial court's denial of his motion to suppress physical evidence seized from the car he was driving when arrested. We affirm.
Defendant was stopped by a police officer who noticed that the vehicle driven by defendant matched the radio description of a vehicle used in a nearby robbery a few minutes before. The robbery was reportedly committed by two women with long reddish or blonde hair and a man. One woman reportedly had been armed with a knife, the other with a handgun, and the man with a long-barreled shotgun. Two women with long hair and another man were passengers in the car.
The police removed defendant from the car for questioning. Defendant said he did not own the car, that one of the women might own it, and that he had not driven it before. He also said none of his possessions was in the car. The women both denied ownership. Defendant consented to a search of the car. The officers searched the passenger area of the car and found ammunition and a knife. A search of the trunk revealed a shotgun, a carbine, and a revolver. Defendant offered no contrary testimony.
Defendant argues that the warrantless search of the automobile violated his Fourth Amendment rights because it was initiated without probable cause or exigent circumstances and because his consent was invalid. We do not reach these issues, however, because there is no showing that the defendant was entitled to challenge the legality of the search of the automobile by virtue of having a legitimate expectation of privacy in the car or in the items seized.
Until the recent decision in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the threshold issue in Fourth Amendment search and seizure cases was whether a defendant had standing to object to the search. Standing had previously been held in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), to belong to anyone who was "legitimately on the premises." The United States Supreme Court in Rakas, however, disavowed the broad language in Jones. It held that Fourth Amendment rights are personal, not vicarious, and that those rights "may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure." 439 U.S. at 138, 99 S.Ct. at 428, 58 L.Ed.2d at 398. Therefore, the court held, a defendant may invoke the exclusionary rule only if he first proves that his own reasonable expectation of privacy was invaded. 1
Rakas was a robbery case involving a stop and search similar to this one. There, as here, the defendant was a passenger in a car owned by the driver and he denied ownership of the ammunition and firearms. The Supreme Court held that he was not entitled to challenge the legality of the search of the automobile because he asserted "neither a property nor a possessory interest in the automobile, nor in the property seized." 439 U.S. at 148, 99 S.Ct. 433, 58 L.Ed.2d at 404.
The only material difference between the facts in Rakas and the facts in the present case is that here the defendant was the driver of the car rather than a passenger. Defendant's...
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U.S. v. Robertson
...denied, --- U.S. ----, 107 S.Ct. 951, 93 L.Ed.2d 1000 (1987). If Oregon law were relevant, Robertson lacked standing. State v. Emery, 41 Or.App. 35, 597 P.2d 375 (1979). B Robertson relies upon the district court's finding that he lived at the house to argue that his expectation of privacy ......
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People v. Flowers
...by officers when its owner was a passenger and defendant was driver have been considered by reviewing courts. In State v. Emery (1979), 41 Or.App. 35, 597 P.2d 375, the court concluded that defendant's temporary control of the car as driver did not give him a sufficiently greater expectatio......
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State v. Weis, 2007 Ohio 2279 (Ohio App. 5/14/2007)
...in the vehicle or its trunk. See State v. Fuller, supra citing United States v. Ospina (D. Utah 1988), 682 F.Supp. 1182; State v. Emery (1979), 597 P.2d 375. Accordingly, we must conclude that Weis lacks standing to raise the constitutionality of the search. Based on Weis' lack of standing,......
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State v. Schneider
...Instead, he says in his brief, "At the outset of this argument, defendant acknowledges that this court's ruling in State v. Emery, 41 Or.App. 35, 597 P.2d 375 (1979), appears to limit his ability to contest the search of the vehicle he was driving. At the hearing on this motion to suppress,......