State v. Hansen, No. C

CourtSupreme Court of Oregon
Writing for the CourtLENT
Citation664 P.2d 1095,295 Or. 78
Decision Date01 June 1983
Docket NumberNo. C
PartiesSTATE of Oregon, Respondent on Review, v. William Wayne HANSEN, Petitioner on Review. 8005-31665; CA 19706; SC 28272. *

Page 1095

664 P.2d 1095
295 Or. 78
STATE of Oregon, Respondent on Review,
v.
William Wayne HANSEN, Petitioner on Review.
No. C 8005-31665; CA 19706; SC 28272.
Supreme Court of Oregon,
In Banc *.
Argued and Submitted March 3, 1982.
Decided June 1, 1983.

Wayne Mackeson, Certified Law Student, argued the cause for petitioner on review. On the briefs was Des Connall, Portland.

[295 Or. 79]

Page 1096

Stephen F. Peifer, Asst. Atty. Gen., argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

[295 Or. 80] LENT, Chief Justice.

Police unlawfully 1 entered defendant's residence, believing marijuana there to be present, arrested defendant for possession of marijuana and held him while a warrant was obtained upon an affidavit that did not contain any evidence of probable cause derived from the entry and arrest. The marijuana was not discovered and physically taken until the search pursuant to the warrant. The issue is whether the unlawful entry and "securing of the premises" requires that the marijuana be suppressed.

Throughout the testimony given in the hearing upon the motion to suppress, the term "secure the residence" or a similar term was used. It was almost treated as if it were a term with a universally recognized referent, requiring no explanation. One witness thus explained his meaning:

"Well, by 'secure,' I would say we had our physical presence within the residence. We had the people we were aware of within that residence detained. They weren't going anywhere. We waited until the narcotics officers got there to handle the investigation further. That's what I mean by 'securing the residence,' no one goes, no one comes in.

" * * *

" * * * Once I was in, once those people were secure, once the premises were secure, it was turned over to the narcotics officers."

Another police officer testified as to what he meant by stating the "building was secure."

"We were not searching. We were securing the premises for the execution of the search warrant."

When asked why he had gone to the house, the same witness replied:

"To initiate an arrest of Mr. Bradshaw and Mr. Hansen, to secure the premises for execution of a search warrant."

Another of the officers further elaborated:

[295 Or. 81] "Q Now, when you went into the Hansen home on the day in question, did you look in any of the other rooms?

"A Did I? I walked into the bedroom to use the phone.

"Q Well, didn't anyone try to secure the house to make sure there was no one else present?

"A Well, Officer Bell did, Officer Conlee--I don't know which--specifically which officer specifically did. Some stood there and watched.

"Q Would it be correct to say that almost immediately after--or shortly after you entered, adequate search was made of the home to make sure there was no one else present?

"A That's correct.

"Q All right, and so that included at least looking into every room in the house didn't it?

"A Yes, sir.

"Q And--

"A Closets, that sort of thing, where a person could hide."

The foregoing testimony only indicates what those particular witnesses believed to be the meaning of the term. There was an abundance of conflicting evidence as to what the occupying officers actually did during the two and one-half hours while waiting for the search warrant. The trial court made no written findings of historical fact, i.e., what actually transpired during that period. Neither did the court make any findings to resolve those conflicts during the court's oral decision from the bench some time after the hearing.

What the officers actually did is what "securing" the premises meant in this particular

Page 1097

case. What they intended to accomplish might throw light upon reasons for their activities and might help the trier of fact to resolve conflicts, but their intentions are not necessarily synonymous with what happened. Counsel are responsible for developing the evidence as to what happened; the trial court is responsible for deciding what happened. "Securing the premises" does not necessarily mean the same thing in every case.

For want of express findings of historical fact by the trial judge, we must, if we can, infer from the trial judge's ruling on the motion to suppress the marijuana what were the [295 Or. 82] historical facts. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968). 2

THE FACTS

Investigation led police to suspect that defendant was selling marijuana. Officer Sawyer, an undercover agent, had gained the confidence of one Bradshaw, from whom, upon prior occasions, he had purchased small amounts of marijuana. Each time Sawyer purchased marijuana, Bradshaw was observed to go to and from defendant's residence, and Sawyer concluded that defendant was Bradshaw's source of marijuana.

On May 8, 1980, Officer Sawyer told Bradshaw that he wanted to purchase a pound or more of marijuana. The two met in a parking lot about a quarter mile from defendant's residence to negotiate the sale. In working out the details, Bradshaw made four trips between the parking lot and defendant's residence, all observed by police surveillance units. Bradshaw and Sawyer eventually agreed that Bradshaw would return to defendant's residence, get a pound of marijuana and bring it to Sawyer.

Bradshaw did not realize that Sawyer was an undercover agent, and there is no evidence in the record from which it could be inferred that Bradshaw would not have brought the marijuana to Sawyer as agreed. Nevertheless, once Bradshaw left the parking lot, Sawyer radioed police surveillance units and ordered them to "secure" defendant's residence if Bradshaw did return there. When Bradshaw reached defendant's residence, uniformed police officers went to the house, gained entry by a subterfuge, arrested defendant and Bradshaw for possession of a controlled substance, marijuana, 3 and conducted a cursory search of the house for the presence of other occupants. During this search, they found and seized various guns.

[295 Or. 83] The searching officers notified Officer Sawyer that they had "secured" the residence. Sawyer then proceeded to finish preparing an affidavit for a search warrant and procurred one. The police held defendant and Bradshaw for some two and one-half hours until Sawyer arrived with the search warrant. Since there is no evidence to contradict what the officers swore in this respect, and since it establishes the facts in the best light to the prevailing party on the denial of the motion to suppress the marijuana, we take it as established that neither defendant nor Bradshaw was free to leave, with or without any objects, and that no one other than police officers were to be admitted pending arrival of the warrant.

They then conducted an extensive search of the residence, finding two quantities of marijuana: a "plastic baggie" from atop a bookcase in the room where defendant had been held and a "couple of plastic bags behind a radio in a small room just off the master bedroom."

Page 1098

Defendant moved to suppress 4 the guns located during the preliminary search, statements he had made while held [295 Or. 84] in his residence, and the two quantities of marijuana. The trial court granted this motion as to the guns and statements, but denied it as to the marijuana. It found that the police had sufficient independent information to establish probable cause for a warrant to issue, and ruled that the search for the marijuana was not tainted by the "illegal warrantless arrest." The court did not expressly address the effect, if any, of the initial, illegal entry. Defendant was convicted of possession of the marijuana, a controlled substance. ORS 475.992.

Defendant appealed to the Court of Appeals, which affirmed his conviction, stating:

"Assuming without deciding that the police entry into and securing of defendant's residence was illegal, we are satisfied that that did not vitiate the subsequent search with a search warrant issued in reliance on information other than that gained during the entry and 'securing' of the residence."

State v. Hansen, 54 Or.App. 465, 470, 635 P.2d 390, 392 (1981).

Quite simply, what the police officers did in "securing" the residence was to seize it in the constitutional sense. In State v. Drouhard, 31 Or.App. 1083, 572 P.2d 331 (1977), the Court of Appeals so recognized, and we approved that recognition in State v. Matsen/Wilson, 287 Or. 581, 601 P.2d 784 (1979).

In the case at bar, defendant argues that the seizure of the house was a seizure of everything in the house and, therefore, the illegal seizure of the house is likewise an illegal seizure of the contents. 5 Since this seizure preceded the arrival of the warrant, contends the defendant, the later seizure in the warrant search is of no avail to the state.

The state argues that there was no seizure of the marijuana until the warrant search. It takes the position that the seizure did not occur until the marijuana was found and physically possessed. That seizure, the state contends, was not an exploitation of the illegal seizure of the house or of the defendant because the warrant was obtained on evidence of probable cause derived dehors the seizure of the house and of

Page 1099

the [295 Or. 85] defendant. In making that argument, the state relies upon Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The state's argument only indirectly, if at all, meets defendant's claim that the marijuana had already been seized by the seizure of the house. That argument of the state ignores the defendant's point that this case is concerned with the very evidence the police sought to obtain by "securing" the premises, whereas, in Wong Sun the United States Supreme court was concerned with the admissibility of "derivative" evidence, as we shall later discuss in this opinion.

It seems to us that defendant's argument that seizure of the house was a seizure of all its contents...

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24 practice notes
  • State v. Martin, No. 5890
    • United States
    • Supreme Court of Arizona
    • January 31, 1984
    ...of the premises. The term "secure" has no precise meaning as applied to the police procedures at issue here. See State v. Hansen, 295 Or. 78, 80-82, 664 P.2d 1095, 1096-97 (1983). In the past we have approved police efforts to "secure" premises while awaiting a warrant. State v. Smith, 112 ......
  • State v. Lowry, No. TC
    • United States
    • Supreme Court of Oregon
    • July 26, 1983
    ...to act on an officer's own assessment of probable cause without a warrant is justified only by one or another exception. State v. Hansen, 295 Or. 78, 664 P.2d 1095 (1983); State v. Carsey, 295 Or. 32, 38, 664 P.2d 1085 (1983); State v. Greene, 285 Or. 337, 340-41, 591 P.2d 1362 (1979); Stat......
  • State v. Atkinson
    • United States
    • Supreme Court of Oregon
    • September 25, 1984
    ...and "inventory search" are among a number of shorthand phrases that recur with regularity in judicial decisions. See State v. Hansen, 295 Or. 78, 664 P.2d 1095 (1983) and State v. Matsen/Wilson, 287 Or. 581, 601 P.2d 784 (1979), describing "freezing" or "securing" a premises. Repeated use o......
  • State v. Smith
    • United States
    • Court of Appeals of Oregon
    • May 28, 1997
    ...their drug operations. The trial court concluded that the dog sniff was not a search. The court also concluded, relying on State v. Hansen, 295 Or. 78, 664 P.2d 1095 (1983), State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), and United States v. Allard, 634 F.2d [148 Or.App. 239] 1182 (9th C......
  • Request a trial to view additional results
24 cases
  • State v. Martin, No. 5890
    • United States
    • Supreme Court of Arizona
    • January 31, 1984
    ...of the premises. The term "secure" has no precise meaning as applied to the police procedures at issue here. See State v. Hansen, 295 Or. 78, 80-82, 664 P.2d 1095, 1096-97 (1983). In the past we have approved police efforts to "secure" premises while awaiting a warrant. State v. Smith, 112 ......
  • State v. Lowry, No. TC
    • United States
    • Supreme Court of Oregon
    • July 26, 1983
    ...to act on an officer's own assessment of probable cause without a warrant is justified only by one or another exception. State v. Hansen, 295 Or. 78, 664 P.2d 1095 (1983); State v. Carsey, 295 Or. 32, 38, 664 P.2d 1085 (1983); State v. Greene, 285 Or. 337, 340-41, 591 P.2d 1362 (1979); Stat......
  • State v. Atkinson
    • United States
    • Supreme Court of Oregon
    • September 25, 1984
    ...and "inventory search" are among a number of shorthand phrases that recur with regularity in judicial decisions. See State v. Hansen, 295 Or. 78, 664 P.2d 1095 (1983) and State v. Matsen/Wilson, 287 Or. 581, 601 P.2d 784 (1979), describing "freezing" or "securing" a premises. Repeated use o......
  • State v. Smith
    • United States
    • Court of Appeals of Oregon
    • May 28, 1997
    ...their drug operations. The trial court concluded that the dog sniff was not a search. The court also concluded, relying on State v. Hansen, 295 Or. 78, 664 P.2d 1095 (1983), State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), and United States v. Allard, 634 F.2d [148 Or.App. 239] 1182 (9th C......
  • Request a trial to view additional results

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