State v. Stahley
| Decision Date | 27 December 1971 |
| Citation | 93 Adv.Sh. 1616,492 P.2d 295,7 Or.App. 464 |
| Parties | STATE of Oregon, Appellant, v. Wayne Allan STAHLEY, Respondent. |
| Court | Oregon Court of Appeals |
Walter L. Barrie, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.
Patrick D. Gilroy, Oregon City, argued the cause for respondent. With him on the brief was William E. Schumaker, Oregon City.
Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.
This is an appeal by the state from an order of the Clackamas County Circuit Court suppressing evidence and quashing the search warant and affidavit in support thereof in a criminal case charging illegal possession of narcotics.
A search warrant for narcotics and narcotic paraphernalia was issued by the Clackamas County District Court on October 25, 1970, based upon an affidavit of a police officer. The search was conducted on the same day and resulted in the seizure of narcotics. An information of felony was then filed in the district court charging the defendant with illegal possession of narcotic drugs. The defendant filed in district court a motion to quash the affidavit and search warrant and suppress evidence. At the time set for preliminary hearing before the district court the court first took up defendant's motion to quash and after counsel for the defendant and for the state made oral presentations, the district court by order quashed the affidavit and search warrant and suppressed the evidence seized under the warrant. The state then took an order dismissing the charge of illegal possession of narcotics in the district court '* * * for the reason that evidence crucial to the State's case has been suppressed by order of the District Court dated November 16, 1970 * * *.' Thereafter, on December 23, 1970, the Grand Jury of Clackamas County returned into the circuit court an indictment charging the defendant with the same offense of illegal possession of narcotic drugs. The defendant again moved to suppress the evidence seized under the search warrant because '* * * the search warrant and affidavit in support of said search have heretofore been quashed by the issuing (district court) magistrate * * *.' The circuit court ordered the evidence suppressed. That court, in a memorandum opinion explaining its ruling, stated that defendant had followed the procedure set forth in ORS 141.150 and 141.160, 1 from which no appeal is provided, and that after suppression by the issuing magistrate the circuit court had no authority to 'revive' the search warrant. The circuit court suggested a writ of review was the only remedy available to the state.
The primary question for determination by this court is whether the suppression order of the issuing magistrate, the district court, is binding upon the circuit court. This question has not been squarely decided in Oregon. Since the district court is not a court of record, no provision is made for setting forth the basis of the magistrate's ruling on a motion made pursuant to ORS 141.150 and 141.160, and no record is required to be made to disclose whether or not the ruling is supportable. As mentioned, there is no provision for appeal from the district court's ruling under the statutes quoted. Thus, its determination of a factual matter would be final unless additional inquiry is permitted in the trial court. We do not believe that the law contemplates such finality for the magistrate's ruling. From the defendant's standpoint, if the ruling were adverse to him, we recognize that he would not be bound by the ruling of the magistrate on a non-appealable question involving his constitutional rights. Thus we believe the trial court has the inherent power to reexamine the ruling of the magistrate at the behest of the defendant. Since we are not involved with constitutional rights of the state in search procedures, the same reasoning does not apply to the state's position if a ruling adverse to the state has been made by the magistrate. However, it has been held that a suppression ruling of the judge at the preliminary hearing was not binding on the trial court. For example:
* * *' People v. Taylor, 124 Ill.App.2d 268, 274, 260 N.E.2d 347, 350 (1970). 2
It is not clear on what basis the defendant in the present case claimed the ruling of the district court was...
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Cook v. State, 61
... ... Draft No. 1, 1973). See also Watts v. United States, 131 U.S.App.D.C. 125, 134, 402 F.2d 676, 685 (1968) (per Burger, J.), rev'd on other grounds, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (nonappealable pre-trial motions not proper subjects for collateral estoppel); State v. Stahley, ... Page 675 ... 7 Or.App. 464, 492 P.2d 295, 297 (1971) (non-appealable suppression order not binding on state in subsequent prosecution of same defendant). And see Rodriguez v. Beame, 423 [381 A.2d 677] F.Supp. 906, 908 (S.D.N.Y.1976) (decision rendered on suppression motion final for ... ...
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