State v. Haney

• Court: Oregon Court of Appeals
• Writing for the Court: ARMSTRONG, J.
• Citation: State v. Haney, 195 Or App 273, 97 P3d 1211 (Or. App. 2004)
• Decision Date: 15 September 2004
• Parties: STATE of Oregon, Respondent, v. Jon Michael HANEY, Appellant.

97 P.3d 1211

195 Or. App. 273

STATE of Oregon, Respondent, v. Jon Michael HANEY, Appellant.

00CR0978MI, A116614.

Court of Appeals of Oregon.

Argued and Submitted November 25, 2003.

Decided September 15, 2004.

Ernest G. Lannet, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, Acting Executive Director, Office of Public Defense Services.

Daniel J. Casey, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

ARMSTRONG, J.

Defendant appeals his misdemeanor conviction for driving under the influence of intoxicants (DUII). He assigns error to the denial of his motion to suppress evidence obtained by the state through a warrantless search of his car. After a single-car accident that left defendant — who was the driver of the car — hospitalized, an officer entered defendant's automobile without a warrant to search for ownership and insurance information. The state maintains that the entry was a legitimate administrative search authorized by ORS 810.460, which requires officers at accident scenes to submit accident reports. Defendant contends that the search was not statutorily authorized and that it failed to comply with various other administrative search requirements. We reverse and remand.

The relevant facts are undisputed. On February 15, 2000, defendant drove his car off of Highway 38, a two-lane road along the Umpqua River, injuring himself and rendering his car inoperable. Officer Macho was dispatched to the accident. The officer directed traffic past the scene, making little or no contact with defendant, who was removed from his car by emergency personnel and transported to a hospital. Macho eventually called for a tow truck to tow defendant's car.¹ While waiting for the tow truck, Macho entered defendant's car to look for insurance and ownership information to assist him in completing an accident report.² Macho did not obtain a warrant before conducting the search. During the search, he came across several bottles of prescription medicine in the glove compartment, along with paperwork indicating that defendant was on a drug-related "felony probation." The prescription drugs and paperwork were seized and were used in a subsequent criminal investigation. Based on the evidence obtained during the search and subsequent investigation, the Douglas County District Attorney's Office filed an information charging defendant with DUII. Defendant moved to suppress all evidence obtained through the search and seizure. He also moved to suppress, as fruit of the allegedly unlawful search, all evidence obtained from the subsequent investigation. The trial court held a suppression hearing and denied defendant's motion. Defendant subsequently entered a conditional guilty plea pursuant to ORS 135.335(3), reserving the right to appeal the trial court's denial of the motion to suppress.

On appeal, defendant assigns error to the trial court's denial of his suppression motion, arguing again that the search of his car did not fall within any recognized exception to the warrant requirement; that the search therefore violated Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution;³ and that all evidence obtained directly or indirectly from the search should therefore be suppressed. The state responds that the officer entered the car to conduct a valid administrative search as authorized by ORS 810.460. Defendant disagrees, arguing (1) that the statute upon which the state relies does not explicitly or implicitly authorize searches, (2) that the search was not conducted in accordance with a systematic policy that adequately limited officer discretion, and (3) that the search was not reasonably necessary to fulfill the duties created by the legislature.

In resolving the issues framed by the parties, "we are bound by the trial court's determination of what actually happened. Our function is limited to determining whether legal principles were correctly applied." State v. Davis, 295 Or. 227, 238, 666 P.2d 802 (1983). "We review the denial of a motion to suppress for errors of law, deferring to the trial court's findings of historical fact when there is evidence in the record to support them." State v. Woodall, 181 Or.App. 213, 217, 45 P.3d 484 (2002) (citing State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993)). With those standards in mind, we turn to the legal questions raised by the parties.

Macho's entrance into defendant's car constituted a search under Article I, section 9, of the Oregon Constitution. A search is any activity that, "if engaged in wholly at the discretion of the government, will significantly impair [a person's] freedom from scrutiny." State v. Campbell, 306 Or. 157, 171, 759 P.2d 1040 (1988). Even minimal entries into private vehicles have been recognized as searches implicating the protections of Article I, section 9. See State v. Rhodes, 315 Or. 191, 196-97, 843 P.2d 927 (1992) (completely opening a truck door already a few inches open constitutes a search); State v. Hicks, 89 Or.App. 540, 543-45, 749 P.2d 1221 (1988) (inserting head through open car window constitutes search).

A search undertaken without a warrant violates Article I, section 9, unless it comes within an exception to the warrant requirement. E.g., Davis, 295 Or. at 237, 666 P.2d 802. Here, the only exception to the warrant requirement on which the state relies is the "administrative search" exception. Therefore, if the search was not a valid administrative search, then the case must be remanded with instructions to grant defendant's suppression motion.

An administrative search is a search authorized by politically accountable officials and conducted pursuant to administrative regulations for a purpose other than the enforcement of criminal laws. State v. Anderson, 304 Or. 139, 141, 743 P.2d 715 (1987). Such a search must satisfy at least three requirements in order to meet the "reasonableness" standard of Article I, section 9. First, the search must be authorized by a politically accountable lawmaking body. Weber v. Oakridge School District 76, 184 Or.App. 415, 435, 56 P.3d 504 (2002),rev. den., 335 Or. 422, 69 P.3d 1233 (2003). Second, its design and administration must permit no discretion on the part of the law enforcement officer. Id. at 436, 56 P.3d 504. Third, the search's scope must reasonably relate to its purpose. Id. at 437, 56 P.3d 504.

The state bears the burden of proving that each of the three requirements was satisfied. See, e.g., id. at 425, 56 P.3d 504 (in a criminal case, the burden is on the state to establish the lawfulness of a warrantless administrative search). We conclude that the state failed to meet that burden with regard to the second of the three requirements, so we do not address whether it met its burden with regard to the other requirements.

The state contends that defendant failed to preserve an argument about whether it met its burden to establish that there was a policy that was designed and systematically administered to ensure that officers who conducted searches for information to complete the accident report required by ORS 810.460 had no discretion in conducting the searches. We disagree.

Defendant did not raise an issue about the policy under which administrative searches are conducted under ORS 810.460 because the state did not contend that it had conducted such a search. As the trial court explained in its memorandum opinion, "The only argument the State makes for [the] lawfulness [of the search] is the Community Care Taking function of police officers." At the conclusion of the suppression hearing, in which the state relied solely on a community-caretaking theory, the court instructed both parties to prepare supplemental memoranda on the issue. In its memorandum, the state said:

"Upon further limited review of the statutory and constitutional issues in this case, [the state has] been unable to find Oregon caselaw or legislative history that supports justifying the search in this case under the `Community Caretaking' statute.

"[The state] must therefore ask the court to consider suppression based solely on the testimony offered by the state's witness at the suppression hearing."

The first time that an administrative search theory was raised in the case was when the trial court relied on that theory in its memorandum opinion to deny the motion to suppress. Because the theory was interjected into the case by the court after the conclusion of the suppression hearing, defendant was not required to challenge the adequacy of the record to establish the requirements for a lawful administrative search policy under ORS 810.460 in order to raise the issue on appeal.

It is not clear from the evidence in the record that the police department had adopted a policy to conduct searches under ORS 810.640. According to the agreed narrative statement, Macho testified that "it was department policy to get certain information to include in the Department of Motor Vehicles (DMV) report [and that] he entered the vehicle to obtain information for the accident report." However, he did not testify that it was department policy to enter vehicles under such circumstances or that it was even his own policy to do so. He made no reference to a DMV form that the state cites as support for the search, and he did not suggest that any other form guided the scope or nature of his search. Neither the statute nor the DMV form, for its part, suggests that an officer can or should conduct searches in order to obtain the desired information.⁴

Even if it were shown that the state had adopted some policy authorizing searches, the state would have the additional burden of showing that the policy adequately limited officer discretion. Unacceptably broad...