State v. Johnson
| Decision Date | 12 May 1993 |
| Docket Number | C-90-09-35322 and C-90-09-35323 |
| Citation | 851 P.2d 1160,120 Or.App. 151 |
| Parties | STATE of Oregon, Appellant, v. Eugene W. JOHNSON, Jr., Respondent. STATE of Oregon, Appellant, v. Tracy Joann JOHNSON, Respondent. ; CA A69301 (Control) & CA A69302). |
| Court | Oregon Court of Appeals |
[120 Or.App. 152-A] Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause, for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Ernest Warren, Jr., Portland, argued the cause, for respondent Eugene W. Johnson. With him on the brief was Walker & Warren, Portland.
William E. Gaar, Portland, argued the cause, for respondent Tracy JoAnn Johnson. With him on the brief was Metropolitan Public Defender, Inc., Portland.
[120 Or.App. 152-B] Before ROSSMAN, P.J., and EDMONDS and DE MUNIZ, JJ.
DE MUNIZ, Judge.
Defendants are husband and wife. They were indicted for delivery and possession of a controlled substance. ORS 475.992(1), (4). The evidence that the state intended to offer against them was discovered during two separate searches: one of their motel room and one of their car. 1 The court granted defendants' motions to suppress the evidence found in the motel room on the ground that their consent to search was not voluntary, and the state appeals. ORS 138.060(3). We granted the state's motion to consolidate. ORAP 2.30. We remand for further proceedings.
The chronology of events that led to defendants' consent to search is not in dispute. As part of his routine patrol, Officer Rhodes frequently stopped at local motels to ask the clerks if they had observed any suspicious activity that might be related to drug transactions. At 2:50 one morning, Rhodes stopped at the Cypress Inn in Portland. The night clerk told him about some suspicious activity related to room 110. 2 Tracy Teixeira was listed as the registered guest in that room. Rhodes ran a records check and found that there was an outstanding warrant for Teixeira's arrest. He summoned another officer, Farr, to accompany him and his partner, Mickola, to room 110 to arrest Teixeira.
Rhodes and Mickola went to the door, while Farr watched the window. Rhodes knocked, and Tracy Johnson opened the door. Rhodes asked her if he could come in to speak with her, and she said yes. Rhodes asked her what her name was, and she answered, "Tracy." Rhodes, believing that she was Tracy Teixeira, told her that she was under arrest and handcuffed her. He asked her what her last name was, and she "mumbled something that sounded like Johnson."
As he was handcuffing Tracy, Rhodes saw Eugene Johnson lying on the bed. Eugene was on top of the covers and was fully dressed. One of his hands was underneath the pillow. Rhodes asked Eugene to identify himself, and he did. Rhodes recognized Eugene's name, and he knew that Eugene had been arrested on weapons charges before. Rhodes went over to Eugene, so that he could handcuff him "for officer safety purposes only."
As he approached Eugene, Rhodes smelled an aroma that he associated with methamphetamine. Rhodes handcuffed Eugene and asked him why he smelled like a "meth lab." Eugene said, "I don't know what you're talking about." Rhodes than advised defendants of their "Miranda rights." They told him that they understood those rights. Rhodes asked defendants if there were any drugs or guns in the room. They said that, to their knowledge, there were not. Rhodes asked if he could search the room, and defendants consented.
Rhodes and Mickola searched the car and found a police radio scanner, a heating grill, a fan, some tubing and a bottle of peppermint extract. 3
The court concluded that Rhodes had probable cause to arrest Tracy because "[s]he matched the description [of Tracy Teixeira in the warrant] close enough," and it therefore concluded that her arrest was lawful. Next, the court concluded that Rhodes unlawfully arrested Eugene by handcuffing him, because he did not have probable cause to believe that Eugene had committed any crime. Finally, the court concluded that defendants' consent to a search of their motel room was invalid, and it granted their motions to suppress.
In granting defendants' motions to suppress, the court framed the issue as follows:
The court indicated that it was "not persuaded the state has carried its burden of proof that the consent was a product of the defendants' free will and not obtained by coercion." State v. Wolfe, 295 Or. 567, 572, 669 P.2d 320 (1983); State ex rel. Juv. Dept. v. Fikes, 116 Or.App. 618, 624, 842 P.2d 807 (1992).
The searches were not pursuant to a warrant. Consequently, the state had the burden of proving, by a preponderance of the evidence, that they were lawful. ORS 133.693(4); Or.Const., Art. I, §§ 9, 12; State v. Stevens, 311 Or. 119, 137, 806 P.2d 92 (1991). Our courts have frequently observed that the state's burden to prove voluntariness is greater if consent follows illegal police conduct. E.g., State v. Kennedy, 290 Or. 493, 502, 624 P.2d 99 (1981); State v. Jacobus, 106 Or.App. 496, 499, 809 P.2d 108 (1991), rev. den. 314 Or. 176, 836 P.2d 1345 (1992). That observation does not mean that the state must prove voluntariness by more than a preponderance of the evidence, e.g., by clear and convincing evidence. Rather, it merely reflects that an unlawful arrest is even more coercive than a lawful one. 4 The state thus has a more difficult time in surmounting the preponderance hurdle, because there is already appreciable evidence that weighs against a finding of voluntariness.
The state contends that the officers were authorized to arrest Tracy when she told them that her name was Tracy. Second, the state contends that handcuffing Eugene was a reasonable measure to ensure officer safety. We reject both of those propositions.
"(6) Command any peace officer to arrest the person for whom the warrant was issued [.]" ORS 133.140. (Emphasis supplied.)
The warrant commanded the arrest of Tracy Teixeira. It neither commanded nor authorized the arrest of any other person.
The state contends that the officers were authorized to arrest Tracy Johnson, because she "generally matched the physical description shown in police records and said her name was 'Tracy.' " However, the officers' belief that Tracy was the person who was named in the warrant did not authorize them to arrest her. In Pierson v. Multnomah County, 301 Or. 48, 718 P.2d 738 (1986), there was a valid warrant to arrest Ronald Pierson. Multnomah County police officers stopped his identical twin brother, Robert, for a traffic infraction. They believed that Robert was Ronald, and arrested him. Robert sued the county for false imprisonment. In deciding whether the officers' conduct was privileged, the court weighed "the inherent conflict between persons who are wrongfully arrested and officers who are charged with the duty to arrest persons under a warrant." 301 Or. at 55. (Emphasis supplied.) It is clear that the court considered Robert's arrest unlawful, even though the police may have believed, in good faith, that he was the person named in the warrant.
Other than the warrant, the officers had no information that would suggest that Tracy Johnson had committed any crime. Article I, section 9, does not have a "good faith" exception. See State v. Devine, 307 Or. 341, 345, 768 P.2d 913 (1989); State v. Davis, 106 Or.App. 546, 552, 809 P.2d 125 (1991). Consequently, the arrest of Tracy Johnson was unlawful. Or. Const., Art. I, § 9.
We do not mean to suggest that the officers had no authority to stop Tracy for a reasonable time to determine her identity. ORS 131.615. However, her detention was unreasonable under the circumstances. Rhodes testified that he did not believe Tracy when she said that her last name was Johnson. Nonetheless, he did not ask her if she had any identification. Instead, he ignored the possibility that she was telling the truth, and he arrested her.
After unlawfully arresting Tracy, Rhodes handcuffed Eugene "for officer safety purposes." He then asked defendants if there were any guns or drugs in the motel room and asked for permission to search. Defendants consented. During that search, Rhodes found Tracy's identification, which proved that she had been telling the truth when she said her name was Johnson.
The state contends that handcuffing Eugene did not constitute an arrest. It argues that Eugene was lawfully stopped and that handcuffing him was a reasonable alternative to frisking him. Alternatively, the state...
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