State v. Reid
| Decision Date | 15 October 2003 |
| Parties | STATE of Oregon, Respondent, v. Shawn Larry REID, Appellant. |
| Court | Oregon Court of Appeals |
Rankin Johnson IV, Deputy Public Defender, argued the cause for appellant. With him on the opening brief was David E. Groom, Acting Executive Director, Office of Public Defense Services; and with him on the reply brief was Peter A. Ozanne, Executive Director, Office of Public Defense Services.
Paul L. Smith, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.
Defendant appeals from convictions for unlawful delivery of a controlled substance and unlawful possession of a controlled substance. ORS 475.992. Defendant asserts that the trial court erred in denying his motion to suppress evidence, specifically, 1.47 grams of crack cocaine found in his jacket during the execution of a search warrant at an apartment where he was an overnight guest. As described below, we conclude that, because the jacket was not in defendant's actual physical possession at the time that it was seized and searched, the search was lawful, as within the scope of the warrant, under the Fourth Amendment of the United States Constitution.1 Accordingly, we affirm.
For purposes of our review, the material facts are undisputed. In March 2000, the Lane County Circuit Court issued a warrant authorizing the search of an apartment in Eugene, an automobile, and the persons of David Jefferson and James Allensworth, for evidence including firearms, cocaine, packaging materials, financial and travel records, and cash. Neither the warrant nor the supporting affidavit included any reference to defendant.
On March 21, at about 7:00 a.m., federal, state, and local law enforcement officers, including Oregon State Police Officer Rebecca Martin, executed the warrant at the apartment. Upon entry, police found defendant and defendant's sister, Grundy, asleep in the living room. Defendant was wearing a T-shirt and shorts. Defendant's belongings, including a jacket, were also in the living room. Jefferson was in another room in the apartment.
After presenting the warrant and reading Miranda rights to all three, Martin took Jefferson outside to interview him. Jefferson immediately exercised his right to an attorney, and the interview ended in less than five minutes. Martin then interviewed defendant. During the course of that interview, another officer, Rauch, told Martin that officers had found cocaine in a jacket located inside the apartment and that defendant had acknowledged ownership of the jacket. When Martin asked defendant about the cocaine, defendant admitted that it was his.
Defendant subsequently moved to suppress the cocaine found in the jacket. In addition to the facts just recited, testimony at the suppression hearing established that defendant was not wearing the jacket at the time that it was seized. However, the record does not disclose the jacket's exact physical proximity to defendant when it was seized. Nor does the record disclose when defendant told the police that the jacket was his. That is, it is impossible to determine from this record whether, at the time the police seized and searched the jacket, they knew that it was defendant's.
In moving to suppress, defendant referred to both the Fourth Amendment and Article I, section 9, of the Oregon Constitution. Defendant did not contest the validity of the warrant itself. Rather, defendant argued that, under Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the warrant did not authorize the search of defendant's person or of his belongings because he was merely a guest at the apartment. The state responded that the search of the jacket was not an impermissible search of defendant's "person" for purposes of Ybarra because defendant was not wearing the jacket and it was not in his actual physical possession at the time it was seized to be searched. Thus, the state reasoned, the search of the jacket was within the scope of the premises-wide warrant.
The trial court endorsed the state's position. The court found that the jacket was not in defendant's possession at the time that the warrant was executed and that, consequently, the search of the jacket was within the scope of the warrant. Defendant was subsequently convicted after a stipulated facts trial.
On appeal, as noted, see 190 Or.App. at 51 n. 1, 77 P.3d at 1135 n. 1, defendant does not mention the Oregon Constitution. Instead, he relies exclusively on Fourth Amendment authority. Defendant's position rests on the conjunction of two propositions: (1) the state has the burden of proving that a search was within the scope of a warrant; and (2) the search of the jacket would be lawful, as within the scope of the warrant, only if the officers did not know that the jacket was defendant's before they seized and searched it. Defendant contends that, because the record does not disclose when the officers learned that the jacket was his, the state necessarily failed in its burden of proof.
Defendant is correct that the state bears the burden of demonstrating that the seizure or search of a contested item falls within the scope of a valid warrant. See State v. Hall, 166 Or.App. 348, 356-57, 999 P.2d 509 (2000)
(). However, for the reasons that follow, we disagree with defendant that, under the Fourth Amendment, the search of an item is beyond the scope of a premises-wide warrant if the police have actual knowledge that the item belongs to a visitor. Rather, the controlling test for Fourth Amendment purposes is one of actual physical possession. Because the jacket here was not in defendant's physical possession at the time that it was seized, the search was lawful as within the scope of the warrant.
In framing the dispute on appeal, the parties rely almost exclusively on two cases, Ybarra and State v. Kurtz, 46 Or.App. 617, 612 P.2d 749, rev. den., 289 Or 588 (1980). Neither is dispositive. In Ybarra, the Court held that, in the absence of probable cause, persons not named in a search warrant could not be searched merely because they were present on the premises at the time the warrant was executed.2 Ybarra itself involved the patdown of a tavern patron and did not address any extension of its reasoning to the personal effects of visitors to a premises.
We addressed that question—in part—the next year in Kurtz. In Kurtz, police officers executed a warrant to search a residence for cocaine and found the defendant, who was not named in the warrant, in the basement. The officers detained the defendant and took him upstairs and, in the ensuing search of the basement, found a daypack that contained cocaine. After the discovery of the cocaine, the officers determined that the pack belonged to the defendant. 46 Or.App. at 619, 612 P.2d 749. The defendant was consequently charged with possession of a controlled substance. The trial court denied the defendant's motion to suppress the evidence found in the daypack, and we affirmed.3
We first considered the defendant's contention that "officers executing a search warrant who have reason to think that guests are present with identifiable personal property should allow such guests to identify and claim property before the premises are searched." 46 Or.App. at 621, 612 P.2d 749. We rejected that proposition, noting that the trial court "found that the officers who found and searched the pack did not have actual knowledge that it belonged to defendant," and concluding that imposing such a "duty of inquiry" on officers executing a warrant would be impractical. Id. at 621-22, 612 P.2d 749.
We then turned to the defendant's alternative argument that, notwithstanding any "duty of inquiry," the search of the pack was beyond the scope of the warrant under an application of Ybarra's reasoning to a visitor's personal effects. In that regard, the defendant relied on the so-called "relationship test" developed in United States v. Micheli, 487 F.2d 429 (1st Cir.1973), a pre-Ybarra decision.
In Micheli, the issue was whether a warrant to search a business premises authorized a search of a briefcase that officers had seen the defendant, a co-owner of the business, carry onto the premises immediately before the warrant was executed. The First Circuit, in sustaining the search, determined that the relationship between the defendant and the premises was such that the defendant could have reasonably expected that a search of the premises pursuant to a warrant would encompass a search of his personal effects.4
In Kurtz, we quoted the Micheli test, in part:
" "
Kurtz, 46 Or.App. at 622, 612 P.2d 749 (emphasis omitted) (quoting Micheli, 487 F.2d at 432). We then rejected that test:
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