State v. Hickmann

CourtSupreme Court of Oregon
Writing for the CourtBRYSON
Citation540 P.2d 1406,273 Or. 358
PartiesSTATE of Oregon, Respondent, v. Gary Francis HICKMANN, Petitioner. . *
Decision Date16 October 1975

John K. Hoover, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem.

W. Michael Gillette, Sol. Gen., Salem., argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

BRYSON, Justice.

Defendant was charged with the crime of Criminal Activity in Drugs, ORS 167.207. The trial court allowed defendant's motion to suppress certain evidence seized in his tepee (his residence). The search was conducted without a warrant. The Court of Appeals, one judge dissenting, reversed and remanded to the trial court to make findings as to whether or not defendant 'consented' to the police entering his home. State v. Hickmann, Or.App., 75 Adv.Sh. 1646, 534 P.2d 1153 (1975). We accepted review because the case presents a question of criminal appellate procedure.

Police officers, acting on information provided by an arrestee who stated she had purchased drugs from defendant, conducted a warrantless search of defendant's tepee. The police found and seized some marijuana. Defendant filed a motion to suppress the evidence. The State opposed the motion, contending (1) there was probable cause to believe defendant possessed illegal drugs and (2) exigent circumstances existed justifying the search without a warrant. The trial court found that probable cause existed but there were no exigent circumstances to justify the warrantless search and seizure and allowed the defendant's motion.

The State appealed, contending the search of defendant's tepee was proper 'as being incident to a lawful arrest.' The majority opinion of the Court of Appeals found that probable cause existed and that the trial court's findings that no exigent circumstances existed were 'supported by substantial evidence and we are bound thereby.' However, the majority opinion continued:

'* * * (W)e remand to the trial court for it to make findings of fact concerning the existence or nonexistence of consent by the defendant to the entry by police into his home. If it finds there was such consent, the order suppressing the evidence must be set aside. Accordingly, the order suppressing the evidence is vacated.'

The defendant, on appeal to this court, contends 'the issue of consent was not raised by either of the parties at trial or on appeal. It was simply not an issue in the case.' We have examined the entire record and find that the issue of 'consent' was not before the trial court on the motion to suppress and the State did not raise the issue in its appeal to the Court of Appeals. At the time of oral argument before this court, the State agreed that this is a correct statement.

Appellate courts are limited in their scope of review. Generally,...

To continue reading

Request your trial
64 cases
  • State v. Montez
    • United States
    • Supreme Court of Oregon
    • April 3, 1990
    ...will not otherwise be satisfied unless we consider the assignment. State v. Hitz, 307 Or. 183, 766 P.2d 373 (1988); State v. Hickmann, 273 Or. 358, 360, 540 P.2d 1406 (1975); State v. Braley, 224 Or. 1, 9, 355 P.2d 467 Defendant contends that the trial court erred in failing to include the ......
  • State v. Flores
    • United States
    • Court of Appeals of Oregon
    • October 30, 1984
    ...... Likewise, in his petition for review, defendant cited only the Fourteenth Amendment. Neither the majority nor the dissenting opinion in this court mentions Article I, section 9. Appropriate respect for the appellate process--see, e.g., State v. Hickmann, 273 Or. 358, 540 P.2d 1406 (1975) (state as appellant before Supreme Court not entitled to urge theories for reversal not previously presented to the trial court)--could have avoided the problems Lowry's adventurous analysis creates. . 5 ORS 131.005(11) provides that "probable cause" means "that ......
  • State v. Walton
    • United States
    • Supreme Court of Oregon
    • April 4, 1991
    ...P.2d 1359 (1980), reh'g den (1981) (question not raised and preserved at trial will not be considered on appeal); State v. Hickmann, 273 Or. 358, 360, 540 P.2d 1406 (1975) (same); State v. Beeson, 248 Or. 411, 414, 434 P.2d 460 (1967) (no reversible error where no objection made at trial an......
  • Bakker v. Baza'r, Inc.
    • United States
    • Supreme Court of Oregon
    • June 17, 1976
    ...defects any further on the grounds that plaintiff has not adequately protected her rights on appeal. See State v. Hickmann, 75 Adv.Sh. 3434, 3435--36, 273 Or. 358, 540 P.2d 1406 (1975); Wood Ind'l Corp. v. Rose, 271 Or. 103, 530 P.2d 1245 (1975); Crawford v. Jackson, 252 Or. 552, 451 P.2d 1......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT