State v. Makuch

• Court: Oregon Supreme Court
• Writing for the Court: Riggs
• Citation: State v. Makuch, 136 P.3d 35, 340 Or. 658 (Or. 2006)
• Decision Date: 02 June 2006
• Docket Number: S50478.,CR98-1961.,CR98-1962.,SC S50435.,A110839.,A110292 (Control).
• Parties: STATE of Oregon, Respondent on Review, v. Paul Arthur MAKUCH, Petitioner on Review. State of Oregon, Respondent on Review, v. Leigh Ann Riesterer, aka Leigh Ann Makuch, Petitioner on Review.

Page 35

136 P.3d 35

340 Or. 658

STATE of Oregon, Respondent on Review, v. Paul Arthur MAKUCH, Petitioner on Review.

State of Oregon, Respondent on Review, v. Leigh Ann Riesterer, aka Leigh Ann Makuch, Petitioner on Review.

CR98-1962.

CR98-1961.

A110292 (Control).

A110839.

SC S50435.

S50478.

Supreme Court of Oregon.

Argued and Submitted September 9, 2004.

Decided June 2, 2006.

On review from the Court of Appeals.^*

Robin A. Jones, Senior Deputy Public Defender, argued the cause and filed the briefs for petitioner on review Makuch. With her on the briefs were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Harrison Latto, Portland, argued the cause and filed the briefs for petitioner on review Riesterer.

Daniel J. Casey, Assistant Attorney General, argued the cause and filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before CARSON, Chief Justice,^** and GILLETTE, DURHAM, RIGGS, DE MUNIZ,^*** BALMER, and KISTLER, Justices.

RIGGS, J.

In these two criminal cases, we decide whether the police unlawfully obtained evidence of defendants' marijuana growing operation such that the evidence should be suppressed. The trial court suppressed that evidence under an Oregon statute, because the police had searched a lawyer's personal organizer for defendants' last names and addresses. The Court of Appeals reversed that part of the trial court's orders, concluding that the protections of the Oregon statute did not apply in defendants' cases and that the evidence should not be suppressed on any other ground. State v. Makuch/Riesterer, 185 Or.App. 298, 59 P.3d 536 (2002). For the reasons that follow, we affirm the Court of Appeals, and we affirm in part and reverse in part the trial court.

The parties do not contest the facts as stated in the Court of Appeals' opinion.

"The facts are complex and involve three separate searches that occurred on the same day, July 7, 1998:(1) the search of the residence of Jeffrey Husk in Portland; (2) the subsequent search of the residence of defendants' attorney, Lawrence Neal, in Vancouver, Washington, including the search of Neal's organizer/day planner, which disclosed defendants' names and addresses; and, finally, (3) the search of defendants' place of business in Milwaukie, Oregon, which revealed a marijuana grow operation. We describe the searches in sequence.

"On July 7, 1998, Officer Brian Schmautz of the Portland Police Bureau sought and obtained a warrant to search Husk's home in Portland. The affidavit in support of the warrant revealed that Schmautz had received information from an informant who had seen marijuana growing at Husk's residence. The informant told Schmautz that Husk had said that he had a partner and was involved in marijuana distribution. The informant also told Schmautz that Husk had told him that his partner would be coming to Husk's residence. Thereafter, the informant saw only one person visit the residence and wrote down the Washington state license plate number of that visitor. After the visitor left, Husk told the informant that the visitor was his partner, Larry, an attorney in Vancouver, and stated that he had traded marijuana cuttings with his partner. Schmautz determined that the license plate was for a vehicle registered to Lawrence Neal of Vancouver, Washington.

"Schmautz went to Husk's home and talked with Husk, who eventually led Schmautz to his garage, where Schmautz observed marijuana leaves and potting soil from marijuana plants. Schmautz asked Husk for consent to search his home, and Husk responded that he could not allow a search unless he contacted his friend and attorney, Larry Neal. Schmautz then obtained a warrant to search Husk's residence, and the ensuing search yielded numerous marijuana plants, as well as a recent telephone bill that showed a call to `L. Neal.'

"Meanwhile, Schmautz had contacted Detective Charles Drake of the Clark County, Washington, Sheriff's Office concerning Lawrence Neal. Drake applied for a warrant to search Neal's home in Vancouver for marijuana plants and related evidence. In his affidavit, Drake recounted information that he had obtained from Schmautz concerning the informant's conversations with Husk and the informant's observation of the Washington license plate. Drake's affidavit also stated that marijuana had been found in a search of Husk's residence. Finally, Drake's affidavit indicated that he had sought and received records showing that the amount of electricity used in Neal's home was significantly greater than the amount used by the previous occupant.

"While waiting for the Washington magistrate to issue the warrant, Drake received word that Husk, who was in custody, was going to be given the opportunity to make an outside call. Because he was concerned that Husk would call Neal and warn him, Drake ordered police officers to `secure' Neal's residence pending issuance of a warrant. Those officers entered Neal's house and discovered a marijuana grow operation before the magistrate issued the warrant. The issuing magistrate was not informed, before he issued the warrant, that officers had already invaded the premises and, in doing so, had already discovered a marijuana grow operation without the benefit of a warrant.

"Thereafter, Schmautz arrived at Neal's residence and assisted the Washington officers with the execution of the warrant. Neal admitted to the police that he grew and sold marijuana. When Drake told Neal that his home was being searched because Portland police had just served a warrant on one of his `Oregon associates,' Neal hung his head and then blurted out, `Paul and Leigh Ann.' Neal said that he had known `Paul and Leigh Ann' since their arrest in Multnomah County for growing marijuana several years earlier.

"As the search progressed, Schmautz discovered Neal's `personal organizer' in an upstairs bedroom. That `organizer' was a zippered, book-sized looseleaf binder, which was clearly marked on the first page: `ATTORNEY/CLIENT CONFIDENTIALITY PRIVILEGE CLAIMED ON ALL CONTENTS.' The personal organizer contained an address section that listed several `Pauls' and `Leigh Anns' or `Leanns,' but only one `Paul' and one `Leigh Ann'—these defendants—who shared the same addresses. One of those addresses was a T-shirt business in Milwaukie, Oregon. Shortly thereafter, Neal admitted to Drake that `Paul and Leigh Ann' had a grow operation in Clackamas County in the previous year and that he had sold them marijuana recently."

185 Or.App. at 300-03, 59 P.3d 536 (footnote omitted). That information led police to defendants' shop. They eventually obtained a search warrant for the shop, and found more than 40 growing marijuana plants. Id. at 303, 59 P.3d 536.

In the past, Neal had acted as a lawyer for both defendants. Neal's representation of defendants was not secret; Neal had, among other things, filed pleadings in court on their behalf.

The State of Washington charged Neal with crimes related to his marijuana growing operation. However, the Washington trial court suppressed all the evidence obtained from searching Neal's home, because the police had violated Neal's rights under the Washington Constitution. The court not only rejected the initial warrantless entry, it also concluded that the search warrant should not have issued, either, because the police had lacked probable cause to connect Neal's home with any criminal activity.

The State of Oregon charged defendants with manufacturing, delivering, and possessing a controlled substance. Before trial, defendants moved to suppress the evidence against them. Defendants argued, among other things, that the evidence must be suppressed because it derived from the illegal search of Neal's residence and personal organizer. Defendants relied in part on Article I, section 9, of the Oregon Constitution.¹ But defendants also argued that ORS 9.695 required the court to suppress the evidence as the fruits of an illegal search of a lawyer's files, papers, or effects related to providing legal services.²

The trial court initially denied defendants' motion to suppress, concluding that the Neal search did not violate ORS 9.695 and that the circumstances surrounding the later search of defendants' shop did not justify suppression on constitutional grounds. On reconsideration, however, the trial court concluded that Neal's personal organizer qualified as "files, papers, [or] effects * * * relating to the provision of legal services" under ORS 9.695(1). The court thus suppressed the evidence under ORS 9.695(4).

The state appealed, and the Court of Appeals reversed the trial court in part. The Court of Appeals concluded that ORS 9.695 did not apply, because the exception found in ORS 9.695(2) had been met: The police had probable cause to believe that the lawyer, Neal, had committed a crime. Makuch/Riesterer, 185 Or.App. at 309, 59 P.3d 536. The court also held that the search of Neal's personal organizer did not invade any of defendants' protected privacy interests under Article I, section 9, of the Oregon Constitution. Id. at 310-11, 59 P.3d 536. Thus, the court held, the evidence obtained from the search of defendants' shop could not be suppressed as evidence derived from prior unlawful police conduct. Id. at 312, 59 P.3d 536. Without discussion, the court also affirmed the trial court's conclusion that the circumstances surrounding the actual search of defendants' shop did not require that the evidence be suppressed. Id. We allowed review.

Procedurally, defendants challenge the admissibility of evidence obtained after the search of their shop pursuant to a warrant. However, defendants' main arguments deal with the earlier search at Neal's residence, not with the shop search. Defendants argue that (1) the Neal search was illegal; (2) defendants were identified only by the illegally obtained...