State v. Flores

Decision Date30 October 1984
Citation68 Or.App. 617,685 P.2d 999
PartiesSTATE of Oregon, Respondent, v. Daniel FLORES, Appellant. No. (10-81-05891; CA A22413; SC 28913.) . *
CourtOregon Court of Appeals

Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Christine L. Dickey, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.


In this case involving criminal convictions for ex-convict in possession of a firearm and possession of a controlled substance, we are once again presented with an occasion to discuss an aspect of Oregon's developing state law of search and seizure. We previously applied federal law, including Oregon cases interpreting federal law, to affirm these convictions. State v. Flores, 58 Or.App. 437, 648 P.2d 1328 (1982). The Supreme Court accepted review and remanded the case to us for reconsideration in light of Oregon constitutional principles announced in State v. Caraher, 293 Or. 741, 653 P.2d 942 (1982). State v. Flores, 294 Or. 77, 653 P.2d 960 (1982). On remand, we look not only to Caraher but also to a later decision, State v. Lowry, 295 Or. 337, 667 P.2d 996 (1983), and to other relevant state constitutional principles and precedent, at least to the extent that we can divine them. We affirm.


The Oregon Supreme Court's recent shift in direction on the use of the state constitution in criminal cases presents this court with difficult problems in its day-to-day decision-making, problems which we must face in this case. We are without recent state law precedents in many areas and are uncertain of the extent to which recent federal decisions may also express Oregon constitutional principles. We are therefore left to develop those principles with guidance only from a few recent Supreme Court cases and from that court's traditional approach to the development of search and seizure law. That approach, as we will see, includes such fluctuations, indecisiveness and ambiguity that it is of little help to us, while the recent cases prove, on analysis, to stand for little, as yet.

Before the mid-1960's, the Oregon Supreme Court construed only state constitutional provisions, because the federal Fourth Amendment did not apply to the states. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), overruled in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); see Barron v. Baltimore, 32 U.S. (7 Pet) 243, 8 L.Ed. 672 (1833). In determining what the Oregon Constitution required, the court frequently cited cases from the federal system and from other states, finding precedents from other jurisdictions helpful but not binding. See, e.g., State v. Duffy, 135 Or. 290, 295 P. 953 (1931); State v. Lee, 120 Or. 643, 253 P. 533 (1927); State v. Laundy, 103 Or. 443, 495-497, 204 P. 958, 206 P. 290 (1922). Although in a few instances it appeared to treat federal cases as controlling, see State v. DeFord, 120 Or. 444, 250 P. 220 (1926), the court generally kept the distinction between the two sovereigns and their separate constitutions clear, adopting federal principles when they seemed appropriate.

One example of the Oregon court's approach before the 1960's is its handling of the question of the exclusion of improperly obtained evidence from use in a criminal trial. The court first appeared to reject the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), in State v. Ware, 79 Or. 367, 154 P. 905, 155 P. 364 (1916). Then, in State v. Laundy, supra, it appeared to adopt the rule, albeit by dictum, stating that it did so for the same reasons which commended it to the federal Supreme Court, not because it was bound to follow the federal lead. As the court undoubtedly knew, many state courts at that time had rejected Weeks. Yet, despite Laundy, the question of exclusion in fact--as opposed to an abstract solution--remained unresolved for another forty years. The original majority opinion in State v. McDaniel, 115 Or. 187, 231 P. 965, 237 P. 373 (1925), expanded on the Laundy dictum and ordered suppression of evidence but, on rehearing, a different majority found the search good and treated suppression as an open question. The court refused to decide the question through 1959, see State v. Hoover, 219 Or. 288, 347 P.2d 69 (1959); State v. Flynn, 137 Or. 8, 299 P. 694, 300 P. 1024 (1931), although trial courts had suppressed evidence as early as 1924 and continued to do so thereafter. State v. DeFord, supra; State v. Lanegan, 192 Or. 691, 699, 236 P.2d 438 (1951); see also Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (evidence which Oregon state courts suppressed could not be used in federal prosecution if state officials obtained it in violation of Fourth Amendment standards); see Patterson, A Case for Admitting in Evidence Liquor Illegally Seized, 3 Or.L.Rev. 334, 340 (1924); Note, Evidence--Admissibility of Illegally Obtained Evidence--The Law in Oregon, 39 Or.L.Rev. 368 (1960). In sum, the court avoided the issue by never finding a search invalid, at times straining hard to avoid doing so.

Only after Mapp v. Ohio, supra, which applied the federal exclusionary rule to the states, did the Oregon court, in State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962), unequivocably state that unconstitutionally obtained evidence should be suppressed, and not until State v. Elkins, 245 Or. 279, 442 P.2d 250 (1966), did it ever find a search improper and reverse a conviction for failure to suppress. Throughout the entire period before Mapp and Ker v. California, supra, it normally treated this issue, and all other search and seizure questions, under the Oregon Constitution alone, looking to other jurisdictions for guidance but not accepting their decisions as controlling. 1

During that period, the court dealt with a number of major issues in search and seizure law. They included searches incident to arrest, State v. McDaniel, supra; State v. Quartier, 114 Or. 657, 236 P. 746 (1925); State v. Laundy, supra; State v. McDaniel, 39 Or. 161, 65 P. 520 (1901), and its permissible scope, Keeler v. Myers, 119 Or. 517, 249 P. 637 (1926); the requirements for a search warrant, State v. Flynn, supra; Nally v. Richmond, 105 Or. 462, 209 P. 871 (1922); Smith v. McDuffie, 72 Or. 276, 142 P. 558, 143 P. 929 (1914); and what constitutes probable cause. State v. Christensen, 151 Or. 529, 51 P.2d 835 (1935); State v. Duffy, 135 Or. 290, 295 P. 953 (1931). To be sure, the specific holdings in most, if not all, of these cases, while generally consistent with federal and state law of the period, are significantly more generous concerning police authority than are post-1960 decisions based on federal law; the changes in federal law alone in the interim make it questionable whether the Oregon Supreme Court would still consider them good law under the Oregon Constitution.

Whatever their present status, however, the pre-Mapp and pre-Ker Oregon cases necessarily established an analysis of Article I, section 9, of the Oregon Constitution that was independent of the federal constitution. That independent analysis began breaking down soon after Mapp and Ker, as the Supreme Court, rather than continuing to develop the meaning of the Oregon Constitution, simply decided cases under the federal constitution. In State v. Chinn, supra; State v. Krogness, 238 Or. 135, 388 P.2d 120, cert. den. 377 U.S. 992, 84 S.Ct. 1919, 12 L.Ed.2d 1045 (1964), and State v. Elkins, supra, the court relied primarily on state law, but thereafter it increasingly treated United States Supreme Court precedent not only as establishing the constitutional minima but also as stating the maximum extent of constitutional protection. Thus, the Oregon Constitution lost its independent significance at the very time of a major revamping of search and seizure law under the federal constitution.

There were occasional reminders in dissents that Oregon could act independently. In State v. Chinn, supra, which was clearly decided under the Oregon Constitution, Judge O'Connell opposed the broad scope the majority allowed for a search incident to arrest and urged that the Oregon court adopt the rule of United States v. Trupiano, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1947), under the Oregon Constitution, despite its rejection in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1953):

"[W]e have our own constitution to interpret and in interpreting it we are not bound by the cases decided by the United States Supreme Court if we propose to afford our citizens a greater protection against unlawful search than that required in those cases." 231 Or. at 288, 373 P.2d 392 (O'Connell, J., dissenting).

Judge O'Connell repeated that point in his dissent in State v. McCoy, 249 Or. 160, 172, 437 P.2d 734 (1968), a case which the majority decided primarily, if not exclusively, on federal grounds. Judge Sloan also argued in his dissent in State v. Cartwright, 246 Or. 120, 147, 418 P.2d 822 (1967), that Oregon could adopt different rules than the federal Supreme Court requires. It is not clear, however, whether he wished the court to construe the Oregon Constitution's limitations on police authority more strictly than the federal or to adopt an independent construction of the federal constitution. (The Oregon Supreme Court several times indicated its belief that it was not bound by the federal Supreme Court's construction of the Fourth Amendment, the last time in State v. Florance, 270 Or. 169, 182, 527 P.2d 1202 (1974). It apparently dropped this...

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