State v. Tanner

• Decision Date: 03 February 1987
• Citation: 728 P.2d 47,82 Or.App. 296
• Parties: STATE of Oregon, Appellant, v. William Calvin TANNER, Respondent. 84-0973; CA A36777.
• Court: Oregon Court of Appeals

Page 47

728 P.2d 47

82 Or.App. 296

STATE of Oregon, Appellant, v. William Calvin TANNER, Respondent.

84-0973; CA A36777.

Court of Appeals of Oregon.

Argued and Submitted May 19, 1986.

Decided Nov. 12, 1986.

Reconsideration Denied Jan. 16, 1987.

Review Allowed Feb. 3, 1987.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Raymond F. Thomas, Portland, argued the cause for respondent. With him on brief was Royce, Swanson & Thomas, Portland.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

VAN HOOMISSEN, Judge.

This case presents a question of first impression under Article I, section 9, of the Oregon Constitution: Does a thief have "standing," that is, a constitutionally protected interest, in stolen property kept in the premises of a third party so that the thief may object to a search of those premises? The answer is, No!

Defendant was charged with theft from his employer, Tower Records. The state appeals a trial court's pretrial order suppressing evidence. ORS 138.060(3). The issue is whether the use of the evidence at trial would violate defendant's rights under Article I, section 9, of the Oregon Constitution. ¹ The trial court concluded that it would. We disagree and, therefore, reverse.

On May 2, 1984, while lawfully in the home of Charles and Lori Best, the police saw marijuana in plain view. Later, they obtained a warrant to search the home for drug-related evidence. While executing that warrant, the police saw video tapes and electronic equipment that they believed were stolen property. On May 5, the police obtained another warrant to search the Bests' home, this time for stolen property. While executing that warrant, they seized the video tapes and electronic equipment that they had seen on May 2. Tower Records' video department manager identified the stolen property. The manager and the assistant manager, spoke with defendant on May 15. The assistant manager summarized defendant's statement to them:

"He basically just said that he had taken all of this stuff [from Tower Records] to use as collateral on a cash loan from Charley Best because he needed the cash because his wife's disability hadn't come through, and that once the loan was paid off, the disability came through and the loan was paid off, that he would return the merchandise."

Defendant was not in the Bests' home when it was searched or when the stolen property was seized by the police.

Defendant's motion to suppress was based solely on Article I, section 9. He concedes that he lacked standing ² to challenge the disputed evidence under federal authorities. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

The state filed a memorandum opposing defendant's motion on its merits and, additionally, it challenged his "standing" to complain about any illegality at the Bests' home. The state does not dispute the trial court's ruling that the May 2 search of the Bests' home was illegal and that it tainted the May 5 search warrant. It argues only that defendant had no "standing" under Article I, section 9, to contest any police action in the Bests' home.

The trial court found:

"1. That defendant gave Charles and Lori Best stolen property from Tower Records as collateral for a loan;

"2. That the aforementioned property was seized pursuant to a search warrant executed on May 5, 1984 at the Best home;

"3. That the May 5 warrant was based upon information obtained during the execution of the search warrant at the Best home on May 2, 1984;

"4. That the May 2, 1984 warrant is invalid." (Emphasis supplied.)

The court concluded, in part:

" That the defendant Tanner has an expectation of privacy in the Best residence by virtue of the fact that the home was the repository of defendant's collateral;

"2. That defendant has an expectation of privacy in the property seized because, although stolen, he had pledged it as collateral;

"3. That as a result, defendant Tanner has standing to object to the search of the Best residence;

"4. That the property seized from the Best home on May 5, 1984 is ordered suppressed." (Emphasis supplied.)

The trial court's finding that the property in question was, in fact, stolen is supported by evidence in the record, and we are bound by it. Ball v. Gladden, 250 Or. 485, 487-88, 443 P.2d 621 (1968); State v. Johnson/Imel, 16 Or.App. 560, 571, 519 P.2d 1053, rev. den. (1974). Also, defendant concedes that he had no interest in the Bests' home, other than his purported interest in the stolen property that was stored there. Defendant's claim for suppression of the evidence fails on the merits if his rights were not violated in the state's acquisition of the evidence. See State v. McMurphy, 291 Or. 782, 785-86, 635 P.2d 372 (1981).

The property was stolen. He had no rights in it. He was a thief. See Restatement (Second) Torts, § 895, illustration 6; cf State v. Normile, 74 Or.App. 545, 702 P.2d 1160, rev. den. 300 Or. 162, 707 P.2d 584 (1985) (defendant had rights in a rental car held after the rental term expired, but his rights were inferior to those of the police acting on behalf of the true owner).

We reject defendant's rationale. No public purpose could conceivably be served by extending the protection of Article I, section 9, to a thief in the enjoyment of stolen property. Defendant cites no authority for the proposition that a thief has a protected interest in stolen property, and our research has found none. He concedes that federal authority is directly to the contrary. The few state cases cited by the state generally support the state's position that a thief has no protected interest in stolen property. ³ The trial court erred in suppressing the evidence. ⁴

Reversed and remanded.

1 Article I, section 9, of the Oregon Constitution provides, in part:

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * *." (Emphasis supplied.)

2 The state uses the word "standing" as shorthand for a constitutionally protected interest, and so will we in this case.

3 See State v. Emery, 41 Or.App. 35, 39, 597 P.2d 375 (1979); People v. Tellez, 161 Cal.App.3d 1067, 208 Cal.Rptr. 105 (1984); Sussman v. Commonwealth, 610 S.W.2d 608 (Ky.1980); Graham v. State, 47 Md.App. 287, 421 A.2d 1385 (1980); Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, cert. den. 385 U.S. 942, 87 S.Ct. 303, 17 L.Ed.2d 222 (1966); Wilder v. State, 583 S.W.2d 349 (Tex.Crim.App.1979), vacated on other grounds 453 U.S. 902, 101 S.Ct. 3133, 69 L.Ed.2d 987 on remand 623 S.W.2d 650 (1981); see also Mahar v. State, 137 Ga. 116, 223 S.E.2d 204 (1975); State v. Hamm, 348 A.2d 268 (Me.1975); State v. Boutot, 325 A.2d 34 (Me.1974); Duncan v. State, 27 Md.App. 302, 340 A.2d 722 (1975); Palmer v. State, 14 Md.App. 159, 286 A.2d 572 (1972); State v. Perkins, 543 S.W.2d...