State v. Rodriguez

• Decision Date: 01 July 1993
• Citation: 317 Or. 27,854 P.2d 399
• Parties: STATE of Oregon, Petitioner on Review, v. Wilfredo RODRIGUEZ, Respondent on Review. CC C89-01-30382; CA A62825; SC S39120.
• Court: Oregon Supreme Court

Page 399

854 P.2d 399

317 Or. 27

STATE of Oregon, Petitioner on Review, v. Wilfredo RODRIGUEZ, Respondent on Review.

CC C89-01-30382; CA A62825; SC S39120.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Nov. 2, 1992.

Reassigned June 9, 1993.

Decided July 1, 1993.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause and filed a response for petitioner on review. Timothy A. Sylwester, Asst. Atty. Gen., Salem, filed the petition. Also on the petition and response were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for respondent on review. With her on the response to the petition for review was Sally L. Avera, Public Defender, Salem.

GILLETTE, Justice.

In this criminal case, the trial court denied defendant's pretrial motion to suppress evidence seized during a warrantless search of defendant's apartment following his arrest. On appeal from defendant's subsequent conviction, the Court of Appeals reversed and remanded for a new trial, holding that "[d]efendant's consent to the search was obtained by exploitation of illegal police conduct" and that, therefore, the motion to suppress should have been granted. State v. Rodriguez, 110 Or.App. 544, 551, 823 P.2d 1026 (1992). We conclude that defendant's consent was not obtained by exploitation of any illegal police conduct. Consequently, we reverse the decision of the Court of Appeals and reinstate the judgment of the circuit court.

Defendant is an alien who had been convicted of possession of a controlled substance. As a result, he was subject to deportation. 8 U.S.C. § 1251(a)(11) (1988). A special agent with the United States Immigration and Naturalization Service (INS) learned of defendant's conviction and sought to arrest him pending deportation proceedings. ¹ The INS agent obtained an administrative arrest warrant by presenting a certified copy of defendant's record of conviction to the INS Assistant District Director for Investigations in Portland. ² After obtaining the warrant, the INS agent went to defendant's apartment to make the arrest, accompanied by six Portland police officers and an FBI agent who were members of a regional organized crime narcotics task force.

At the hearing on the motion to suppress, the INS agent described defendant's arrest at his apartment as follows:

"Q [DISTRICT ATTORNEY:] What happened when you got there?

"A [AGENT:] Well, we arrived there and I knocked on the door and [defendant] appeared at the window and opened the door up. I showed him my credentials, speaking Spanish identified myself as an immigration officer, I showed him a copy of the warrant, and told him that I had a warrant for his arrest and that he was under arrest.

"Q Was that still through the window?

"A No, he had opened the door. It was in the doorway.

"Q Okay. And what did you ask him at that point? Did you read him his Miranda rights?

"A Yes. Yeah, the door was open, as I say. We were more or less--I was by myself. The rest of the unit wasn't there, they were off to the side. And as I told him--identified myself and showed him a copy of the warrant and so forth, and my badge, he said, 'Okay.' He submitted peacefully to the arrest. He says, 'Okay,' and he stepped back in which was an indication to me to step in and I was going to do what I had to for him to be arrested.

"And I stepped in and I read him Miranda rights from DEA form 13A in Spanish. I read his rights. He said he understood them.

"And then I asked him, 'Do you have any drugs or guns in the house?' And he said, 'No, go ahead and look.' And I "And then the other team members came in and we searched the apartment."

                said, 'Can we search?'   You know, 'Want to consent to search,' and so forth.  And he said, 'Yes, go ahead.'
                

During the search, one of the Portland police officers found a gun under a pillow, and the FBI agent found another gun in a closet. In response to questioning by the INS agent, defendant stated that one of the guns was his and that, although the other gun was not his, it would have his fingerprints on it.

Defendant was charged with two counts of being an exconvict in possession of a firearm, ORS 166.270 (1987). ³ Before trial, he moved to suppress both the guns and his statements. ⁴ He argued that the administrative arrest warrant was not supported by oath or affirmation, as required by the Oregon and United States Constitutions, ⁵ that the arrest was therefore unlawful, and that the guns and statements should be suppressed as the "fruit" of the unlawful arrest. Defendant also argued that the Portland police had participated in the arrest in violation of ORS 181.850(1), set out infra, and that the evidence should be suppressed as the "fruit" of that alleged illegality. The trial court denied the motion to suppress, and defendant was convicted.

On appeal from that conviction, the Court of Appeals concluded that defendant's arrest was unlawful, because the arrest warrant was not valid under Article I, section 9, of the Oregon Constitution, and because the arrest was not a valid warrantless arrest. State v. Rodriguez, supra, 110 Or.App. at 548-50, 823 P.2d 1026. The court then concluded that "[d]efendant's consent to the search was obtained by exploitation of illegal police conduct." Id. at 551, 823 P.2d 1026. Consequently, the court reversed and remanded for a new trial. Id. ⁶ We allowed the state's petition for review to address several issues of constitutional import presented by this case.

SUB-CONSTITUTIONAL ANALYSIS

Before addressing defendant's constitutional claims, we address defendant's sole sub-constitutional argument. See State v. Lajoie, 316 Or. 63, 66, 849 P.2d 479 (1993) (applying this court's customary methodology). Defendant argues that suppression of the gun discovered by the Portland police officer was required, because the Portland police participated in his arrest in violation of ORS 181.850(1). That statute provides:

"No law enforcement agency of the State of Oregon or any political subdivision of the state shall use agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship residing in the United States in violation of federal immigration laws."

We reject defendant's argument for two reasons. First, the Portland police officers did not violate ORS 181.850(1) by participating in defendant's arrest, because they were not there "for the purpose of detecting or apprehending" defendant. On the contrary, the trial court expressly found that "[t]hey were looking for violations of the state statutes." Nothing in ORS 181.850(1) prohibits state officers Second, even assuming that the Portland police officers were present, at least in part, "for the purpose of * * * apprehending" defendant, and further assuming that being present with such mixed motives would be a violation of ORS 181.850(1), defendant has failed to demonstrate that suppression of evidence is a necessary consequence of such a violation. See, e.g., State v. Trenary, 316 Or. 172, 850 P.2d 356 (1993) (failure of police officer to inform driver of consequences of refusing field sobriety test did not require suppression of test results); State v. Valentine/Darroch, 264 Or. 54, 504 P.2d 84 (1972) (evidence obtained in violation of Oregon "knock and announce" statute not subject to suppression), cert. den., 412 U.S. 948, 93 S.Ct. 3001, 37 L.Ed.2d 1000 (1973). Defendant's sub-constitutional argument is not well taken.

whose purpose is to determine whether any state law has been violated from accompanying a federal officer on an arrest such as the one that occurred in this case.

STATE CONSTITUTIONAL ANALYSIS

We proceed to defendant's constitutional arguments. At trial, on appeal, and on review, defendant has invoked his rights under both the Oregon and United States Constitutions. Before addressing defendant's claims under the federal constitution, we address defendant's claims under the state constitution. Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981). In this case, the applicable provision of the Oregon Constitution is Article I, section 9, which provides:

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized."

A defendant's right under Article I, section 9, to be "secure * * * against unreasonable search, or seizure" is vindicated through the sanction of suppression of evidence. State v. Davis, 313 Or. 246, 253, 834 P.2d 1008 (1992). As this court stated in Davis, "if that constitutional right to be 'secure' against impermissible government conduct is to be effective, it must mean that the government cannot obtain a criminal conviction through the use of evidence obtained in violation of a defendant's rights under that provision." Ibid. Therefore, to determine whether defendant was entitled to suppression of the guns in this case, we must determine whether those guns were "obtained in violation" of defendant's right against unreasonable search or seizure under Article I, section 9.

Defendant premised his motion to suppress on the argument that the administrative arrest warrant used to secure his arrest violated Article I, section 9, because it was not "supported by oath or affirmation," as required by that provision. The state has conceded that the arrest warrant did not satisfy the oath or affirmation requirement of Article I, section 9. ⁷ The state denies, however, that suppression of the guns is required as a result of that concession. The state advances three arguments for sustaining the trial court's decision not to suppress the guns in this case.

First, the state argues that,...