State v. Fugate

• Decision Date: 08 June 2001
• Citation: State v. Fugate, 332 Or 195, 26 P3d 802 (Or. 2001)
• Parties: STATE of Oregon, Respondent on Review, v. Steven Glen FUGATE, Petitioner on Review.
• Court: Oregon Supreme Court

26 P.3d 802

332 Or. 195

STATE of Oregon, Respondent on Review, v. Steven Glen FUGATE, Petitioner on Review.

(CC 96-0660-C; CA A96628; SC S45976)

Supreme Court of Oregon.

Argued and Submitted October 14, 1999.

Decided June 8, 2001.

Peter Gartlan, Chief Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the brief were David E. Groom, Oregon Public Defender, Jesse Wm. Barton, Deputy Public Defender, Robin A. Jones, Deputy Public Defender, Anne Morrison, Deputy Public Defender, and Andy Simrin, Deputy Public Defender.

Kaye E. McDonald, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, KULONGOSKI, and LEESON, Justices.²

GILLETTE, J.

This is a criminal case in which defendant was charged with driving while under the influence of intoxicants (DUII). ORS 813.010. Defendant filed a pretrial motion to suppress any evidence of his impairment due to alcohol, arguing that any such evidence was obtained only because the arresting officer exceeded the permissible scope of the traffic stop that preceded defendant's arrest. See ORS 810.410(3)(b) (1995) (limiting scope of traffic stop). The trial court granted defendant's motion to suppress. On appeal, the state asserted, inter alia, that Oregon Laws 1997, chapter 313 (hereafter referred to as SB (Senate Bill) 936), which the 1997 Legislature enacted after the trial court's decision, applied to the case and required reversal of the trial court's order. Defendant, relying on various constitutional grounds, responded that SB 936 could not be applied to his case. A divided Court of Appeals, sitting en banc, disagreed with defendant, agreed with the state, and reversed the order of the trial court. State v. Fugate, 154 Or.App. 643, 963 P.2d 686,modified and adhered to on recons. 156 Or.App. 609, 969 P.2d 395 (1998). We allowed defendant's petition for review. We now conclude that, although SB 936 is constitutional on its face, the part of SB 936 on which the state relies may not be applied retroactively to defendant's case. We therefore reverse the decision of the Court of Appeals and remand the case to that court to consider the state's remaining assignments of error.

I. FACTS AND BACKGROUND

We take our statement of facts from those found by the trial court. On February 11, 1996,³ a police officer stopped the vehicle that defendant was driving because it did not have a license plate light and because a records check indicated that the driving privileges of the vehicle's registered owner were suspended. The officer asked for and obtained identification from defendant and his three passengers. A check revealed that there was an outstanding arrest warrant for one passenger. The officer went to speak to that passenger. While doing so, the officer saw a nylon pouch that he thought was a gun holster. He seized the pouch, which turned out to contain a spoon with white residue on it. The officer then ordered everyone out of the vehicle. It was at that point that the officer observed things about defendant's physical condition that led him to arrest defendant for DUII.

At a pretrial hearing on his motion to suppress evidence, defendant argued that the officer had expanded the stop of the vehicle that defendant had been driving beyond what was necessary to issue the pertinent traffic citation. Defendant reasoned that that expansion violated ORS 810.410(3)(b) (1995)⁴ and that the evidence obtained against him therefore should be suppressed. See State v. Dominguez-Martinez, 321 Or. 206, 895 P.2d 306 (1995) (holding that evidence derived from violation of ORS 810.410(3)(b) must be suppressed). As noted, the trial court agreed. On February 27, 1997, the court entered an order suppressing the evidence.

The state appealed the trial court's order to the Court of Appeals. In that court, the state argued, inter alia, that suppression of evidence for violation of ORS 810.410(3)(b) (1995) no longer was appropriate because of the recent passage of SB 936.⁵ Section 1 of SB 936, now ORS 136.432, provides:

"A court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by:

"(1) The United States Constitution or the Oregon Constitution;

"(2) The rules of evidence governing privileges and the admission of hearsay; or

"(3) The rights of the press."

Section 38 of SB 936 states that its provisions (other than those expressly specified) apply "to all criminal actions pending or commenced on or after December 5, 1996." Or. Laws 1997, ch. 313, § 38. Section 1 falls within that default provision. The present case had not yet come to trial, i.e., was pending on that date. Thus, by its terms, SB 936 applies to defendant's case, unless some other source of law prevents it from being applied in that manner. In this court, defendant argues that there are such other sources of law. Before we turn to his arguments, however, a review of the history surrounding the enactment of SB 936 is helpful.

SB 936 is a legislative paraphrase of selected provisions of an amendment to the Oregon Constitution that was known as Ballot Measure 40 (1996). Measure 40 was approved by the people at the 1996 general election and became Article I, section 42, of the Oregon Constitution. Or. Laws 1997, v. 1, at ix-x. Measure 40 became effective on December 5, 1996. Measure 40 modified several parts of the Oregon Constitution relating to the criminal law. In Armatta v. Kitzhaber, 327 Or. 250, 254-55, 959 P.2d 49 (1998), this court summarized Measure 40 as follows:

"Measure 40 was submitted to the voters as an initiated amendment to Article I of the Oregon Constitution. According to its preamble, Measure 40 `is designed to preserve and protect crime victims' rights to justice and due process and to ensure the prosecution and conviction of persons who have committed criminal acts.' (Boldface in original.)

"The measure contains nine sections. Section 1 lists the following rights to which victims of crime are entitled in all criminal prosecutions and juvenile delinquency proceedings: (1) rights relating to pretrial detention and release of criminal defendants; (2) the right to be notified of certain stages of criminal proceedings and the right to be present and heard; (3) the right to information about the conviction, sentencing, imprisonment, criminal history, and future release of criminal defendants; (4) the right to refuse to participate in criminal defendants' discovery requests; (5) the right to receive prompt restitution; (6) the right to have all relevant evidence admitted against criminal defendants; (7) the right to have criminal defendants tried by a jury composed of jurors who are registered voters and who have not been convicted of a felony or served a felony sentence within the last 15 years; (8) the right to have criminal defendants convicted by a jury vote of 11 to 1 in aggravated murder and murder cases; (9) the right to receive prepared copies of court transcripts; (10) the right to have criminal defendants serve their sentences in full, without such sentences being set aside, except through the governor's reprieve, commutation, or pardon power, or pursuant to appellate or post-conviction relief; (11) the right to have convicted criminals sentenced consecutively for crimes against different victims; (12) the right to joinder of charges against criminal defendants; (13) the right to be consulted during plea negotiations in certain cases; and (14) the right to notification of the foregoing rights as soon as reasonably practicable. Measure 40, §§ (1)(a) to (n).

"Section (2) of Measure 40 declares that the rights set out in the measure `shall be limited only to the extent required by the United States Constitution,' that Article I, sections 9 and 12, of the Oregon Constitution, `shall not be construed more broadly than the United States Constitution,' and that, in cases involving victims, `the validity of prior convictions shall not be litigated except to the extent required by the United States Constitution.' Section (3) provides that the measure `shall not reduce a criminal defendant's rights under the United States Constitution, reduce any existing right of the press, or affect any existing statutory rule relating to privilege or hearsay.'

"Section (4) of Measure 40 declares that the decision to initiate criminal prosecutions or juvenile delinquency proceedings rests with the district attorney and gives the district attorney the authority to assert the rights conferred upon victims in the measure. Sections (5) to (8) define the terms `victim' and `relevant evidence' for purposes of Measure 40, and clarify various matters relating to the rights conferred in the measure. Finally, section (9) states that Measure 40 creates no new civil liabilities."

327 Or. at 254-55, 959 P.2d 49.

Measure 40 immediately faced constitutional challenges, one of which—Armatta— resulted in this court declaring the measure unconstitutional. At least in part in response to the various challenges to Measure 40, the 1997 Legislature took up and eventually passed SB 936. As noted, that bill became effective June 12, 1997. We shall discuss the contents of SB 936 in greater detail later in this opinion. It is sufficient at this point to state that SB 936 contains legislative versions of certain parts of section 1 of Measure 40 that did not on their face require amendment of the Oregon Constitution. We turn to defendant's various arguments that SB 936 is not applicable to his case.

II. CONSTITUTIONAL CHALLENGES

A. Article IV, Section 20: Single-Subject and Title Requirements

Defendant contends that SB 936 is invalid because it was enacted in violation of Article...