State v. McMurphy, s. TC

• Decision Date: 27 October 1981
• Docket Number: Nos. TC,s. TC
• Parties: STATE of Oregon, Petitioner, v. Larry Byron McMURPHY, Respondent. C79-02-30644; CA 15503; SC 27377.
• Court: Oregon Supreme Court

Page 372

635 P.2d 372

291 Or. 782

STATE of Oregon, Petitioner, v. Larry Byron McMURPHY, Respondent.

Nos. TC C79-02-30644; CA 15503; SC 27377.

Supreme Court of Oregon.

Argued and Submitted March 3, 1981.

Decided Oct. 27, 1981.

William F. Gary, Deputy Sol. Gen., Salem, argued the cause for petitioner. On the brief were James M. Brown, Atty. Gen., Walter L. Barrie, Sol. Gen., and Robert C. Cannon, Asst. Atty. Gen.

William Y. Sugahiro, Milwaukee, argued the cause and filed a brief for respondent.

Before DENECKE, C. J., and TONGUE, LENT, LINDE, PETERSON and TANZER, JJ.

LINDE, Justice.

Defendant appealed his conviction of drug and weapons offenses, claiming that the circuit court should have suppressed evidence obtained by police officers as a result of a warrantless entry into a home. The Court of Appeals held that there were no exigent circumstances for the warrantless entry and remanded the case for a new trial. The prosecution contended for the first time on appeal that defendant had not shown the unlawful entry to have been an invasion of his own constitutionally protected rights, but the Court of Appeals held that this issue was raised too late. The court stated:

"The state, having failed below to challenge defendant's right to contest the search and seizure, cannot now be heard to complain about the record's failure to disclose such an interest. We see no reason to allow the state to take advantage of its own silence in this manner."

48 Or.App. 327, 616 P.2d 1203 (1980). Having allowed the state's petition for review to consider the procedural burdens in suppression hearings, we affirm the decision.

The problem arises from the relationship between the constitutional prohibitions against warrantless or otherwise unreasonable searches and seizures, Or.Const. art. I, § 9, U.S.Const. amend. 4, and the right of a defendant not to be convicted without due process of law.

The constitutional guarantees forbid officers to "violate the right of the people to be secure in their persons, houses, papers, and effects" whether or not any crime has been committed, any evidence is seized, or any prosecution or other government action ensues. They are a shield for people's rights generally, not a subdivision of criminal law. An entry or search that violates these guarantees is unlawful regardless whether it affects some defendant in a criminal prosecution. It may give rise to civil compensatory or preventive remedies. See, e. g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), ¹ Allee v. Medrano, 416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974), Calvin v. Conlisk, 520 F.2d 1 (1975), cf. Cornelius v. City of Ashland, 12 Or.App. 181, 506 P.2d 182 (1973).

The central issue litigated in a criminal prosecution, on the other hand, is the defendant's guilt or innocence, not some affirmative remedy to prevent or to compensate for unlawful official conduct. In seeking to suppress evidence, a defendant asserts that one step in the state's proceedings against him, the seizure of the challenged evidence, violated his rights, so that a conviction based on that evidence would not rest on due process of law. It has been pointed out that on a "prophylactic" or "deterrent" theory of excluding illegally seized evidence it should make no difference whose rights were invaded if the evidence resulted from the kind of unlawful procedure that exclusion is meant to deter. See, e. g., Simmons v. United States, 390 U.S. 377, n. 12, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), citing sources. But the deterrent effect on future practices against others, though a desired consequence, is not the constitutional basis for respecting the rights of a defendant against whom the state proposes to use evidence already seized. In demanding a trial without such evidence, the defendant invokes rights personal to himself. ²

This, at least, is the rule in the federal courts. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), tracing its antecedents. It is often mislabeled as a rule of "standing," although of course a defendant always has standing to object to a court's ruling on the admission of evidence against him. More accurately, the defendant's claim for suppression fails on the merits if his rights were not violated in the state's acquisition of the evidence. See Rakas v. Illinois, 439 U.S 128, 134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The state's petition "assumes" adherence to that rule in this state, and the defendant has not questioned it. ³

The parties disagree on a narrower question concerning the procedure for deciding whether a search or seizure by which the state acquired the evidence was itself an invasion of defendant's rights, antecedent to the use of the evidence against him. Within constitutional limits, procedure in a state court, of course, is a matter of state law. ⁴ As a practical matter this question should not arise when a person is searched incident to a valid arrest or when a warrant or the supporting affidavit identifies the defendant with the place to be searched or the property to be seized. It arises when evidence improperly seized in a building, a vehicle, or a container is offered against someone whose legally protected interest in the place searched or the property seized is not self evident. In the present case, for instance, the evidence was seized after a warrantless entry into a residence in which defendant was present.

The procedural disagreement, however, is not squarely presented by this record. The record is sparse on the question of defendant's protected privacy or other interest in the invaded residence. In testifying to the location of that residence, which had been described to the police in part by the presence of a sports car in the driveway, defendant was asked whether any other sports cars were regularly in the area. He replied that "there's a 280-Z that parks right across the street from...