State v. Pierce, C100480CR, C100906CR; A146946 (Control), A146947.

• Citation: 263 Or.App. 515,333 P.3d 1069
• Decision Date: 11 June 2014
• Docket Number: C100480CR, C100906CR; A146946 (Control), A146947.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jamie Ray PIERCE, Defendant–Appellant.
• Court: Oregon Court of Appeals

263 Or.App. 515

333 P.3d 1069

STATE of Oregon, Plaintiff–Respondent,

v.Jamie Ray PIERCE, Defendant–Appellant.

C100480CR, C100906CR; A146946 (Control), A146947.

Court of Appeals of Oregon.

Submitted Dec. 28, 2012.

Decided June 11, 2014.

Peter Gartlan, Chief Defender, and Mary M. Reese, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General, filed the brief for respondent.

Before NAKAMOTO, Presiding Judge, and DEVORE, Judge, and SCHUMAN, Senior Judge.

DEVORE, J.

Defendant appeals judgments of conviction for first-degree burglary, ORS 164.225, and first-degree theft, ORS 164.057, assigning as error the denial of his motion to suppress evidence of stolen goods. He argues that the judge who issued the search warrants was not “neutral and detached,” as required by the Oregon and federal constitutions, because the judge had been an attorney who had represented defendant in a similar criminal matter. The state contends that the issue is moot, and that, in any event, the warrants are valid. We affirm.

We review the trial court's ruling on defendant's motion to suppress for errors of law, and we are bound by the trial court's factual findings that are supported by sufficient evidence in the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). In two earlier cases, defendant had been arraigned on burglary charges. At the time, Eric Butterfield was engaged as a deputy public defender and served as defendant's counsel in those cases between the time of defendant's arraignment in November 2004 and a pretrial conference on January 6, 2005. Butterfield met with defendant three times—in the jail, at a pretrial conference, and at a sentencing hearing. Defendant says that he told his attorney about his drug habit and “how [he] did the burglaries.” Defendant remembers that he also mentioned uncharged burglaries. Although Butterfield advised defendant to hold off resolving the cases, defendant did not take the advice. Defendant pleaded guilty. Defendant had no further contact with Burterfield, excepting one brief encounter.¹

On his first day in office, March 2010, a newly sworn Judge Burterfield was approached by Detective Scott Cater with an affidavit seeking a search warrant for defendant's apartment and storage areas.² The affidavit recounted the circumstances of a residential burglary in September 2009, not far from and not unlike one of defendant's 2004 burglaries. A window had been pried open, everything had been ransacked, and about $19,000 in belongings had been taken. The belongings had included a couple's wedding gifts, gift cards, a new shower head, a clean-dishes indicator magnet for a dishwasher, and some things with little second-hand value. The detective had found that someone had used the stolen gift cards to purchase window blinds, among other things. The affidavit reported that a witness told the deputy that defendant's apartment had a new shower head, a clean-dishes dishwasher magnet, and new window blinds.

Judge Burterfield recognized defendant's name, but, after five years, did not recall any specifics about defendant, any prior conversations, or the facts of the prior cases. The judge reviewed the Oregon Code of Judicial Conduct and consulted someone he regarded as an expert on judicial ethics. He later attested, “Since I had no biases or prejudices towards any party to the search warrant and I did not have any knowledge about the facts described in the affidavit, I concluded * * * that it was appropriate for me to review the warrant.” He concluded that the affidavit gave probable cause to search, and he approved the warrant. When police conducted the search, they found belongings taken from the victims' home. Defendant was present. The officers noticed other things that they believed had been stolen elsewhere. Those things matched serial numbers and descriptions of goods from other burglaries, prompting police to seek additional search warrants. Judge Butterfield authorized those warrants as well.

Defendant was indicted on multiple counts of first-degree burglary and first-degree theft. The charges were filed in two cases and consolidated for trial. Defendant moved to suppress evidence from the searches. After denial of the motion, the state dismissed several counts; defendant waived a jury; and the parties tried the remaining counts based upon stipulated facts. The court found defendant guilty of five counts of first-degree burglary and one count of first-degree theft. Defendant now appeals the court's denial of his motion to supress.

The state contends that we should not consider the merits of defendant's appeal, because the state believes that the stipulated facts render the appeal “moot.” It is true that this proceeding does not involve a conditional guilty plea, which, by definition, would reserve the right to appeal. SeeORS 135.335(3).³ And, it is true that defendant admitted the existence of evidence sufficient to prove the allegations of the indictment. But neither did this proceeding involve a guilty plea, from which an appeal is permitted only in narrow circumstances, not present here. SeeORS 138.050(1).⁴ A different approach was taken, and there is no dispute about what was intended. At the conclusion of suppression hearing, the parties had agreed to proceed with a trial of stipulated facts on reduced charges subject to an appeal of the suppression issues. The record reflects that the court told defendant, “In all likelihood, you're going to be convicted of those charges and that preserves your appeal rights.” On the following day, defendant conceded the stipulated facts with that understanding. The stipulations sufficed to prove the offenses, but, in the court's words, the stipulations were made while preserving the appeal. The court found defendant guilty.

Although the state concedes that the defendant and judge intended to preserve the challenge to the search warrants, the state sees defendant's stipulations as an unqualified concession of the incriminating evidence. As authority, the state relies on State v. Massengill, 100 Or.App. 369, 373–74, 786 P.2d 731 (1990), a decision involving stipulated facts. That decision, however, did not make a stipulated facts trial the functional equivalent of a guilty plea from which no appeal is permitted on a search issue. Cf. State v. Ronniger, 7 Or.App. 447, 455, 492 P.2d 298 (1971) (guilty plea forecloses search issue). In Massengill, police had found a methamphetamine lab in a vacant apartment in a building that the defendant managed. The defendant stipulated to the presence of the lab in the vacant apartment and to her admission that she was responsible for it. The defendant disputed the validity of the officers' search and seizure of only her own apartment. The trial court refused suppression of that evidence. On appeal, we affirmed her conviction because nothing challenged the stipulated evidence about the vacant apartment or her admission of responsibility. We held that the validity of the search of the defendant's apartment was irrelevant, and we characterized the defendant's assignment of error as moot. Id. at 374, 786 P.2d 731. Because the defendant's conviction rested upon stipulated facts from a search that was unchallenged, the Massengill decision is distinguishable. This case rests upon stipulated facts from a search that was challenged. Those stipulations do not now foreclose appellate review.

Turning to the merits, we recognize that defendant's argument is comprised of a series of propositions. The background for defendant's first proposition is the mandate of the Oregon and federal constitutions that no search warrant shall issue except upon probable cause. Or. Const., Art. I, § 9; U.S. Const., Amend. IV.⁵ Defendant asserts the principle, drawn from federal and state decisions, that the determination of probable cause must be made by a “neutral and detached magistrate.” See Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (using terms in relation to Fourth Amendment); State v. Castilleja, 345 Or. 255, 269, 192 P.3d 1283, adh'd to on recons.,345 Or. 473, 198 P.3d 937 (2008) (using terms in relation to the Oregon Constitution). Next, defendant recalls a standard of judicial ethics that requires that a “judge shall disqualify himself or herself in a proceeding in which the judge's impartiality reasonably may be questioned * * *.” Code of Judicial Conduct, JR 2–106(A) (2010).⁶ Defendant asserts that rule should be extended and understood to mean that a judge should avoid even the appearance of impropriety. Linking these propositions, defendant contends that the appearance of impropriety should mean that a judge is no longer “neutral and detached.” Then, assuming that the facts in this case required recusal under ethical standards, defendant concludes that Judge Butterfield could not be “impartial and detached” so as to authorize the warrants.

We begin, necessarily, with a consideration of Oregon law before turning to the federal constitution. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (discussing analytical sequence). Defendant prefers state law. Defendant concedes, “In general, courts have held that the federal constitution does not require a magistrate to avoid the appearance of impropriety.” See, e.g., U.S. v. Harris, 566 F.3d 422, 434 (5th Cir.2009), cert. den.,559 U.S. 975, 130 S.Ct. 1687, 176 L.Ed.2d 186 (2010) (magistrate represented defendant in unrelated matter six years before); United States v. Heffington, 952 F.2d 275, 278–80 (9th Cir.1991) (magistrate's representation of a co-defendant in a prior drug case involving defendant). Consequently, defendant urges that Article I, section 9, of the Oregon Constitution should go further than its federal counterpart. Specifically, defendant asks...