State v. Johnson

• Decision Date: 24 July 2003
• Citation: 73 P.3d 282,335 Or. 511
• Parties: STATE of Oregon, Appellant, v. Jesse L. JOHNSON, Respondent.
• Court: Oregon Supreme Court

73 P.3d 282

335 Or. 511

STATE of Oregon, Appellant, v. Jesse L. JOHNSON, Respondent.

CC 98C46239, SC S49843

Supreme Court of Oregon.

Argued and Submitted March 11, 2003.

Decided July 24, 2003.

Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and filed the briefs for appellant. With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Jesse Wm. Barton, Salem, argued the cause and filed the brief for respondent.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.

GILLETTE, J.

In this aggravated murder case, the state appeals from a pretrial ruling that suppressed certain evidence.¹ The police seized the evidence in question pursuant to a warrant. The issue before us is whether the trial court erred in suppressing that evidence on the ground that the seizure was tainted by an earlier, unlawful seizure of the same evidence. For the reasons that follow, we conclude that, on the record before us, the trial court did not err.

The underlying charge involves the death of Harriet Thompson, who was stabbed to death in her home on or about March 20, 1998. (The uncertainty relates to whether the victim was killed before or after midnight on March 19.) The victim's body was found on the living room floor of the home. Someone apparently had stepped in the victim's blood and then tracked the blood on the floor. The track included a partial shoe sole impression that appeared to have been made by a heavy, lug-type work boot.

The police became interested in defendant as a suspect when an acquaintance of the victim identified defendant from police photographs as a person who had been in the victim's home on the day before the murder. Police investigators obtained defendant's fingerprint records from previous arrests. A technician then determined that two fingerprints found at the scene of the crime (on an overturned vase and on a five-dollar bill) matched defendant's fingerprints. Investigators also learned, around the same time, that a witness had seen a man who roughly matched defendant's description walking away from the victim's residence in the early morning hours of March 20. According to that witness, the man he saw was wearing a denim jacket and acid washed denim jeans.

The police found defendant and arrested him on an unrelated probation violation warrant on March 27, 1998. That arrest occurred at the home of defendant's girlfriend, McDowell. Defendant was only partially dressed when the officers arrested him; they allowed him to dress before taking him to the police station. Defendant put on, among other things, acid-washed jeans and a pair of heavy work boots. One of the arresting officers noticed that the design of the boots' soles was "consistent" with the partial boot print found at the murder scene.

At the Salem Police Department, detectives interviewed defendant concerning the Thompson murder. Defendant admitted to knowing the victim but denied ever having been at her house, maintaining that position even when confronted with the fact that his fingerprints had been found on objects in the victim's home.

After the interview, the detectives seized defendant's clothing and boots and placed them in an evidence locker. They then booked defendant into the Yamhill County Jail on the probation violation charge. There is no contention that defendant also was under arrest for murder at that time.

Two months later, as defendant was being released in the probation matter, Salem police charged him with the Thompson murder and booked him at the Marion County Jail. Defendant ultimately was indicted for murder, aggravated murder, and robbery. Defendant subsequently moved to suppress the clothing and boots that police detectives had seized at the police station. He argued that the seizure violated Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, because the police carried out the seizure without a warrant and no exception to the warrant requirement justified the seizure.

The state responded that the seizure was lawful because it fell under certain recognized exceptions to the warrant requirement, including the "exigent circumstances" exception. The state also argued that, even if the seizure was unlawful, suppression was not justified, because the police inevitably would have discovered and seized the items in question through lawful means.² In support of that "inevitable discovery" argument, the state pointed to testimony by a police detective that, if the detectives had not seized defendant's clothes as evidence at police headquarters, then the clothes would have been taken and placed in the property inventory at the jail to which defendant was transported. The trial court ultimately rejected all the state's arguments and suppressed the clothing.

The state then elected to follow two different procedural courses simultaneously. One course involved applying for a search warrant authorizing a new seizure of the clothes, which continued to be housed in an evidence locker at the Salem Police Department. The affidavit supporting the application for that search warrant described evidence that connected defendant to the crime and also pointed to the potential significance of the clothes. The affidavit stated that the police had seized the clothing and had retained it at the Salem Police Department because of "exigent circumstances." A circuit court judge granted the application for a search warrant on September 1, 1999, authorizing the police to seize and analyze specified items of clothing "located at the Salem Police Department."

The state's second procedural course involved an appeal of the trial court's order suppressing evidence. In that case, the Court of Appeals affirmed the trial court's order, holding that, assuming that the "inevitable discovery" doctrine that the state relied upon could be applied to evidence of the kind at issue, the state had failed to establish with the necessary degree of certainty that the police inevitably would have obtained the evidence by other, legal means. State v. Johnson, 177 Or.App. 244, 252-53, 35 P.3d 1024 (2001). In that opinion, the Court of Appeals noted that, although the clothes would have been taken, inventoried, and retained at the jail where defendant was being held on the parole violation, they would have remained defendant's property while he was in custody. The court suggested that, in light of that fact, the state's evidence on inevitable discovery was insufficient, because it failed to address "how long the clothing would have been kept in the jail, whether it would have been released to a relative or friend of defendant's if he had so requested, or any steps that the police would have had to take to obtain a transfer of items in the jail's possession." Id. at 250, 35 P.3d 1024.

The state opted not to seek review of the Court of Appeals' Johnson decision in this court.³ Instead, the state chose to pursue admission of the evidence solely on the ground that the police had "re-seized" the evidence legally pursuant to the September 1, 1999, warrant.⁴

When confronted with that new bid for admission of the evidence, defendant again moved to suppress. Defendant argued to the trial court that the evidence was tainted by the first, unlawful seizure and that the belated warrant did not purge that taint because it was not a genuinely independent source of the evidence. Defendant noted that the trial court already had ruled that the initial seizure was unlawful. Defendant also stressed that the police had held the property in their own evidence room, had denied defendant's request for return of the property, and had sought a warrant only when the trial court had ordered the evidence suppressed. Finally, defendant argued that it was "only due to the [original] illegal seizure * * * [that] the police [were] able to identify the location of the evidence [for purposes of obtaining the warrant]."

The state responded that, because the police had obtained the warrant without any use of illegally obtained information, there was "no taint to purge." The state also suggested that, because defendant had not attempted to obtain release of the property while it was in the possession of the police, the clothes were in police custody pursuant to an "independent source." Defendant responded to the latter argument by asserting, and later submitting evidence, that he had requested the return of the property before the state applied for the warrant.⁵

The ensuing proceedings on defendant's motion to suppress focused on defendant's contention that he had requested the return of the clothing through his girlfriend, McDowell. After hearing testimony and arguments in the matter and examining certain documents in camera, the trial court issued a letter opinion that stated the issue to be "whether the defendant failed to request return of his clothing from the police and, if so, does that failure allow the State to successfully argue that the later seizure was independent of the illegal seizure." The trial court found that defendant had requested the return of the clothing through McDowell and that, in any event, the police would not have released the clothing. The court concluded that the warrant and the seizure pursuant to the warrant therefore were not independent of the previous illegal seizure because the police had possession of the clothes due to the previous illegal seizure and because, if the property had gone with defendant to the jail, it would have been released to McDowell and would not have been available for the later seizure.

The state requested reconsideration of the letter opinion. The state argued that the trial court had failed to address the state's argument that the second warrant "purged the taint" from the illegal first seizure.⁶ The state also indicated that it was prepared to present testimony that would...