State v. Hacker, 10-79-11713

• Decision Date: 20 April 1981
• Docket Number: No. 10-79-11713,10-79-11713
• Citation: 627 P.2d 11,51 Or.App. 743
• Parties: STATE of Oregon, Appellant, v. Sharon Rae HACKER, Respondent. ; CA 17924.
• Court: Oregon Court of Appeals

Page 11

627 P.2d 11

51 Or.App. 743

STATE of Oregon, Appellant, v. Sharon Rae HACKER, Respondent.

No. 10-79-11713; CA 17924.

Court of Appeals of Oregon.

Argued and Submitted Dec. 11, 1980.

Decided April 20, 1981.

Ronald R. Sticka, Asst. Dist. Atty., Eugene, argued the cause for appellant. With him on the brief was J. Pat Horton, Dist. Atty., Eugene.

William D. Young, Eugene, argued the cause for respondent. With him on the brief was Spinner & Young, Eugene.

Before RICHARDSON, P. J., and THORNTON and BUTTLER, JJ.

RICHARDSON, Presiding Judge.

The state appeals an order suppressing all evidence sought to be introduced in defendant's trial. At the outset of the suppression hearing, the state conceded that a search warrant executed at defendant's residence on November 14, 1979, was defective. See State v. Montigue, 288 Or. 359, 605 P.2d 656 (1980). ¹ The state sought introduction of "derivative" evidence, which it contended was not "tainted" by the illegal search. The issue is whether the state's physical and testimonial evidence were properly suppressed under the "fruit of the poisonous tree doctrine." We reverse and remand.

Defendant was indicted for forgery in the first degree (ORS 165.013) and theft in the first degree (ORS 164.055), allegedly arising out of acts committed on approximately November 5, 1979. Specifically, defendant was charged with uttering a forged check drawn on the account of the Columbus Club in Eugene in the sum of $220.55 and with theft of currency in that sum from the Safeway Store in Springfield, where the check was allegedly passed.

The trial court made no findings of fact and did not discuss orally any factual determinations or any theory as the basis of its order. Defendant offered no evidence during the suppression hearing.

In State v. Johnson/Imel, 16 Or.App. 560, 519 P.2d 1053, rev. den. on Imel (1974), we outlined the dilemma facing an appellate court in reviewing the action of a trial court on a motion to suppress evidence where the trial court's theory is not disclosed by the order or by specifics of defendant's motion. Because we could not discern which of several possible theories the trial court utilized, we remanded for further proceedings to cure the inadequacies of the order. We conclude that approach is appropriate here.

Defendant's motion requested suppression of " * * * any items, statements, testimony or other evidence obtained wholly or in part as a result of any investigation conducted as a product, fruit, or result of the search and seizure of defendant's residence on November 14, 1979." This motion was sufficient to apprise the state and the court of the general theory upon which defendant sought suppression, the theory is known as the "fruit of the poisonous tree doctrine." As will be discussed in detail later in this opinion, there are a number of exceptions to this adaptation of the exclusionary rule. The exceptions involve mixed questions of law and fact. The resolution of a motion may depend on factual determinations and application of one of a number of legal theories to the historical facts. The evidence sought to be suppressed in this case is varied and may be accepted or excluded on different legal bases. If the trial court accepted the facts as presented by the state's evidence, including what would have been done regarding the investigation of the forgery had there not been a search, we conclude the court would have been in error. If, however, the court rejected some of the state's evidence, we are unable to determine from the order on what legal or factual basis each piece of evidence or each witness's testimony was excluded. We remand to the trial court for an order setting forth the court's findings of fact and the basis for excluding the evidence. In order to expedite the ultimate conclusions we will initially assume, for the purposes of discussion, that the court found the facts in conformity with the uncontroverted evidence presented by the state and set forth the legal bases for admitting the evidence. We summarize the evidence presented by the state.

On November 14, 1979, Eugene police officers executed a search warrant at defendant's residence in Eugene for the purpose of obtaining evidence of narcotics offenses. Among the items seized during the search were identification in the name of a Donna Sue Franks and a check payable to that person drawn on the Columbus Club account. ² After completion of the search, defendant was arrested and "booked" at police headquarters. As part of this process, defendant was photographed and an arrest record was made, which included the photograph and other pertinent data relating to her arrest. As a result of the seizure of these items, Eugene authorities began an investigation of defendant for the crimes of forgery and theft.

As part of this investigation, Officer Michaud of the Eugene Police Department contacted Mr. George Reiter, business manager of the Columbus Club, to determine whether the club was missing any checks and whether any such checks had been negotiated. Though previously unaware of any missing checks, Reiter discovered up to fifteen unaccounted for checks. As a result, he immediately contacted the club's bank and placed stop payment orders on all the missing checks.

On approximately November 5, 1979, one of the missing checks had been negotiated at the Springfield Safeway store by a woman representing herself as Donna Sue Franks. In due course, Safeway presented the check to the bank for payment. The store was notified that payment would be refused due to the stop payment order placed by Mr. Reiter. On approximately November 30, 1979, the check was returned to Safeway and Mr. Miller, manager of the store, contacted Reiter. Reiter told Miller that the check was dishonored because it was a forgery and advised Miller to contact the Eugene police. Instead, Miller contacted the Springfield Police Department, and the check was turned over to Officer Zito. At that time Miller told Officer Zito that defendant had been arrested in Eugene for possession of stolen checks similar to the one passed in the store. Officer Zito thereafter prepared an incident report which included this information regarding defendant.

In early December, Officer Zito delivered the check and his report to Detective Vaught, a Springfield forgery and fraud officer. At that time Vaught was aware neither of the search of defendant's residence nor any investigation involving defendant. Detective Vaught did not commence any active investigation of the forgery at that time.

Within the next two weeks, Detective Vaught met with Detective Hooker of the Eugene Police Department to discuss forgery or fraud investigations the two departments presently had under way. During that meeting, Vaught learned of Hooker's investigation of forgeries involving Columbus Club checks. To avoid unnecessary duplication of effort, Vaught released the Safeway check to Hooker and thereafter ceased any involvement with the investigation regarding the Columbus Club checks.

After receiving the Safeway check, Detective Hooker contacted Helmuth Ferber, who had accepted the check in his capacity as an assistant manager of the Safeway store. Detective Hooker showed Ferber a photographic lineup which included the picture of defendant taken at the time of her arrest on November 14, 1979. Ferber selected the photograph of defendant as the person who negotiated the check and who had represented herself as Donna Sue Franks. Thereafter, Detective Hooker contacted Reiter and Donna Sue Franks. Eventually, by reason of the investigation, defendant was indicted for the present charge.

At the suppression hearing, the state called six witnesses: Helmuth Ferber, Donna Sue Franks, Officer Zito, Detective Vaught, George Reiter and Detective Hooker, and sought introduction of two physical exhibits: the Safeway check and the photographic lineup. Defendant moved to suppress the physical evidence and the testimony of all the witnesses as being inadmissible under the "fruit of the poisonous tree doctrine." The state argued that all the evidence was admissible under one or more of the recognized exceptions to that doctrine.

The "fruit of the poisonous tree doctrine," first developed in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), and later explicated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); see Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), forbids, under certain circumstances, evidence obtained either directly or indirectly as a result of a violation of a defendant's Fourth Amendment rights from being used to secure a conviction. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961); Silverthorne Lumber Co. v. United States, supra. ³

The exclusionary rule's prime purpose is to deter unlawful police conduct. The rule seeks to protect Fourth Amendment rights through this deterrent effect, rather than by depending simply on a personal remedy for those aggrieved. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Application, therefore, is limited to the extent necessary to achieve this deterrent effect. Stated differently, since the application of the "fruit of the poisonous tree doctrine" prevents consideration of otherwise relevant evidence in the factfinding process, application is withheld where such deterrence will not be accomplished. As noted recently by the Supreme Court in State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981):

" * * * The device of excluding trustworthy evidence from the factfinding process in order to serve higher purposes 'is a needed, but grudgingly taken medicament; no more should be swallowed than is needed to combat the disease.' Amsterdam, Search, Seizure, and Section 2255, 112 U.Pa.L.R....