State v. Johnson

Decision Date11 March 1974
Citation16 Or.App. 560,519 P.2d 1053
PartiesSTATE of Oregon, Appellant, v. Ralph Douglas JOHNSON, Respondent. STATE of Oregon, Appellant, v. John Thomas IMEL, Respondent.
CourtOregon Court of Appeals

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the briefs were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Melvin M. Menegat, Newport, argued the cause for respondent Johnson.

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

Before SCHWAB, C.J., and FORT and TANZER, JJ.

SCHWAB, Chief Judge.

Defendants Johnson and Imel were arrested together on the grounds of Taft High School in Lincoln City for violation of ORS 166.045(1)(a), which provides:

'A person commits the crime of loitering if he:

'(a) Loiters in or near a school building or grounds, not having any reason or relationship involving custody of or responsibility for a student, or, upon inquiry by a peace officer or school official, not having a specific, legitimate reason for being there * * *.'

Defendants were taken to jail and thoroughly searched. Marijuana was discovered in Johnson's possession. LSD was discovered in Imel's possession. Defendants were then separately indicted for criminal activity in drugs. ORS 167.207. Each defendant then moved to suppress the drugs that were the basis of these charges. The trial court allowed each defendant's motion to suppress. The state appeals. 1

The parties have briefed and argued these cases as though the principal questions presented were whether ORS 166.045(1)(a) is unconstitutionally vague 2 and, alternatively, whether there was probable cause to arrest defendants for second-degree criminal trespass, ORS 164.245 3 For the reasons stated below, we do not attempt to resolve these questions in the cases at bar. Instead, we now hold: (1) a written motion to suppress evidence must specify with particularity the grounds upon which the motion is based; and (2) in certain circumstances trial courts must state the basis of a decision to suppress evidence. Because the records before us are insufficient under both holdings, we reverse and remand for further proceedings.

The problems that lead us to these conclusions are well illustrated by the records in these cases. Defendant Johnson moved to suppress the marihuana seized after his arrest '* * * upon the grounds and for the reason the defendant was taken into custody as a result of an illegal arrest * * *.' The motion did not elaborate on why the arrest was supposedly illegal. Following a brief evidentiary hearing, the district attorney argued there was 'probable cause to make an arrest for loitering and for crimial trespass in the second degree.' Defense counsel then argued that the loitering statute, ORS 166.045(1)(a), was intended to only reach conduct 'in sufficient proximity of the school or school grounds to threaten proper administration of school activities,' and that when the statute was to interpreted there was no probable cause for defendant's arrest. This argument appears to be based on the arresting officer's testimony that he only saw defendant in the process of leaving the school grounds. Defense counsel also argued the misdemeanors involved were not committed in the officer's presence, hence, the arrest was invalid. See, ORS 133.310. The constitutionality of ORS 166.045(1)(a) was not mentioned during the arguments of counsel.

It was the trial court that first mentioned constitutional issues, discussing them at some length. The court then orally concluded:

'As far as I am concerned I strongly doubt the constitutionality of the statute and I would be real interested in looking at criminal trespass as long as we are here. (Pause)

'I specifically find that the defendant was unlawfully arrested both as to criminal trespass in the second degree and as to the loitering, and the Motion to Suppress will be allowed.'

On June 28, 1973 an order was filed that simply concluded:

'* * * (A)nd the Court being further advised,

'IT IS HEREBY ORDERED that the defendant's Motion to Suppress be and is hereby allowed.'

The court's order did not state the reason the motion was allowed.

Defendant Imel moved to suppress the LSD seized after his arrest:

'* * * for the reason that said arrest was without authority, unlawful and in violation of Defendants (sic) constitutional rights:

'AND FOR THE FURTHER and separate reason that the search of the person of the Defendant * * * was unreasonable, unlawful and in violation of Defendant's constitutional rights.'

Following a brief evidentiary hearing, defense counsel argued there was no evidence that established probable cause for the arrest. Defense counsel also argued that even assuming a valid arrest, the subsequent 'strip' search was invalid by analogy to State v. Gwinn, 12 Or.App. 444, 506 P.2d 187, Sup.Ct. review denied (1973). The constitutionality of ORS 166.045(1)(a) was not mentioned during the arguments of counsel.

The trial court then orally ruled:

'I find, one, that there has been no evidence presented upon which there was any grounds for Officer Greenfield to stop and arrest, that the at least State statute, because we have no heard of a City ordinance, is unreasonably vague for the reasons amply set forth in the series of United States Supreme Court and of the Court of Appeals in State v. White (sic--City of Portland v. White, 9 Or.App. 239, 495 P.2d 778, Sup.Ct. review denied (1972)), and that the application in this case is unconstitutional.

'I have serious question as to the efficacy of strip searches in Class C Misdemeanors without any showing that gives opportunity for pre-trial release rather than incarceration has been offered, although I do not need to base this opinion or this ruling on that ground and specifically do not.'

On August 3, 1973 an order was filed that simply concluded:

'* * * (A)nd the Court being further advised 'IT IS HEREBY ORDERED that the defendant's motion to suppress be and hereby is allowed.'

The court's order did not state the reason the motion was allowed.

I

Meaningful review of the trial court's decisions in these cases must begin with identifying the precise basis of those decisions. It is, however, impossible to discern the basis of the court's decisions from the records before us. Both defense attorneys filed 'shot-gun' motions to suppress. The motions contained only conclusory language--'illegal arrest,' 'violation of constitutional rights,' etc. The motions failed to specify with any particularity exactly why the arrests or resulting searches were supposedly invalid. The arguments of counsel at the suppression hearings covered many issues; yet, perplexingly, the issue we are now asked to resolve--the constitutionality of ORS 166.045(1)(a)--was never mentioned by counsel.

Nor do the trial court's orders explain the basis of the court's decision. Admittedly, we have the trial court's oral comments at the end of the two suppression hearings. We are unable, however, to rely upon those comments. In State v. Swain/Goldsmith, 98 Or.Adv.Sh. 665, 517 P.2d 684 (1974), the Supreme Court stated:

'We must first determine what the district court decided. This is governed by the order which the district judge signed and not by any statement which he made at the conclusion of the hearing. A judge may change his mind concerning the proper disposition between the time of a hearing and his final action which takes place when he signs the order disposing of the matter * * *.' 98 Or.Adv.Sh. at 667, 517 P.2d at 685.

In these cases, the final action, which took place when the trial court signed the orders disposing of these matters, failed to identify the basis of that action. 4

In summary, given the absence of any specificity in the motions to suppress, and given the absence of any findings in the court's orders allowing the motions, we are unable to begin the process of reviewing those decisions.

II

Oregon case law has long required that a written motion to suppress evidence be filed and decided before trial. 5 This longstanding rule has recently been codified. 6 Neither the case law nor the statute defines the minimum specificity required in such motions. 7 However, illuminating analogies are available. First, a motion to suppress can be compared to a pleading. Second, a motion to suppress can be compared to an oral objection to the admissibility of evidence made during the course of a trial. Both analogies support a specificity requirement that is substantially greater than frequently followed in contemporary Oregon criminal practice.

A

A motion to suppress is, in effect, a pleading to the extent that it frames the issues to be determined in a pretrial hearing on the motion. The fundamental role of a pleading is to give an opposing party notice of the pleader's position concerning the facts and law so that the opposing party can begin to prepare his defense. A pleading thus both defines and limits the areas of consideration at a trial or other evidentiary hearing. Furthermore, the pleading assists the court in the conduct of the trial, for example, by enabling the court to determine the relevance of offered evidence. See, Ames v. Motor Vehicles Division, Or.App., 98 Adv.Sh. 836, 517 P.2d 1216 (1974).

Examination of the motions to suppress in these cases reveals how far bench and bar have strayed from the foregoing elementary principles. The Johnson motion simply alleges an 'illegal arrest.' The Imel motion is more verbose, but communicates nothing more. Neither motion effectively put the state on notice of the contentions it had to be prepared to meet at the hearings on the motions. Neither motion defined any specific issues to be determined by the court at the hearings on the motions.

We do not suggest that the analogy between a motion to suppress...

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