State v. Tanner

Decision Date17 November 1987
Citation304 Or. 312,745 P.2d 757
PartiesSTATE of Oregon, Respondent on Review, v. William Calvin TANNER, Petitioner on Review. TC 84-0973; CA A36777; SC S33523.
CourtOregon Supreme Court

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

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

LENT, Justice.

The issue is whether one who entrusts an effect to another has a right under Article I, section 9, of the Oregon Constitution against an unlawful search that discovers the effect. 1 We hold one does.

Defendant took video tapes and equipment from his employer's place of business and pledged them to Charles and Lori Best as collateral for a loan. Police officers, acting under an invalid warrant, discovered these items during a search of the Best residence. The discovery led to defendant's indictment for theft.

Defendant, relying on Article I, section 9, of the Oregon Constitution, moved to suppress evidence uncovered by the search. The circuit court granted the motion, concluding that defendant had "an expectation of privacy in the Best residence by virtue of the fact that the home was the repository of defendant's collateral." On the state's appeal from the suppression order, the Court of Appeals reversed. State v. Tanner, 82 Or.App. 296, 728 P.2d 47 (1986). That court held that a "thief has no protected interest in stolen property." 82 Or.App. at 300, 728 P.2d 47. We allowed defendant's petition for review to consider the applicability of Article I, section 9, to effects entrusted to other persons.

I.

In order to make clear the issue presented by this case, we note and emphasize several issues that are not presented.

First, there is no issue of the lawfulness of the search of the Best residence. The circuit court ruled that the warrant under which the search was conducted was invalid, and the state has not challenged that ruling on appeal. What the state does contend is that the evidence obtained should nonetheless have been admissible on the ground that the unlawful search did not violate the Article I, section 9, rights of defendant.

Unlike the Fourth Amendment exclusionary rule, which has been predicated in recent years on deterrence of police misconduct, see, e.g., United States v. Leon, 468 U.S. 897, 905-08, 104 S.Ct. 3405, 3411-13, 82 L.Ed.2d 677 (1984), the exclusionary rule of section 9 is predicated on the personal right of a criminal defendant to be free from an "unreasonable search, or seizure," State v. Davis, 295 Or. 227, 231-37, 666 P.2d 802 (1983); State v. Laundy, 103 Or. 443, 494, 204 P. 958, 206 P. 290 (1922) (adopting the former Fourth Amendment rationale expressed in such early United States Supreme Court cases as Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914)). 2 That is the search or seizure must violate the defendant's section 9 rights before evidence obtained thereby will be suppressed; a defendant's section 9 rights are not violated merely by admitting evidence obtained in violation of section 9. The issue in this case thus is not whether the police violated section 9--that much is conceded--but whether the police violated defendant's section 9 rights.

Second, there is no issue of defendant's standing to challenge the unlawful search of the Best residence. A criminal defendant always has standing to challenge the admission of evidence introduced by the state. State v. McMurphy, 291 Or. 782, 785, 635 P.2d 372 (1981). The question whether a defendant's personal rights were violated by an unlawful search or seizure is often mislabeled a question of "standing," but the question goes to the merits of a motion to suppress. The term "standing" should be used only in the narrow sense of capacity to make a legal challenge.

Third, although the Court of Appeals' decision was based on its conclusion that "a thief has no protected interest in stolen property," 82 Or.App. at 300, 728 P.2d 47, the character of the effects given by defendant to the Bests, and in particular whether they were stolen, is irrelevant in this instance. Searches and seizures are separate acts calling for separate analysis. See State v. Owens, 302 Or. 196, 205-07, 729 P.2d 524 (1986); State v. Elkins, 245 Or. 279, 286-88, 422 P.2d 250 (1966). The unlawfulness of which defendant complains was a search of the Best residence. If the police violated any right of defendant's, it was a right against the search that uncovered the effects, not some right in the effects themselves. An unlawful search that uncovers effects such as stolen goods or contraband, which also may not legally be possessed, will nevertheless result in suppression of those effects because the unlawfulness involves an infringement of rights apart from possessory interests (or the lack thereof) in the stolen goods or contraband seized as a consequence of the unlawful search. See, e.g., State v. Kock, 302 Or. 29, 725 P.2d 1285 (1986) (suppression of stolen goods seized during unlawful search of parked automobile); State v. Perry, 298 Or. 21, 688 P.2d 827 (1984) (suppression of marijuana seized during illegal search of suitcase). 3

II.

The general issue that must be addressed in this case is whether the entrustment of an effect to another person is sufficient to establish an Article I, section 9, right against an unlawful search that uncovers the effect. For example, are the rights of a hotel guest who entrusts valuables to the hotel violated if the police unlawfully break into the hotel's safe where the valuables are stored? Are the rights of a person who loans a hunting rifle to another violated if the rifle is discovered during an unlawful search of the other person's automobile? If the general issue cannot be decided in the affirmative, there is no basis for defendant's contention that his section 9 rights were violated in the specific circumstances of this case.

Only two cases decided under section 9 have touched upon this issue. In the first case, State v. Laundy, supra, the defendant was convicted of criminal syndicalism for being a member of the Industrial Workers of the World (IWW). One of his assignments of error on appeal was the trial court's denial of his petition for the return of certain evidence, among which was an IWW songbook taken from the desk of one Myers. Myers' desk was across a large room from the defendant's desk, in an area subleased by an organization separate from the organization for whom the defendant worked. In disposing of this aspect of the defendant's assignment of error, the court stated, "If any articles were unlawfully taken from Myers' desk, the defendant cannot complain for the reason that if the right of any person was violated it was that of Myers or that of some other third person, and not that of the defendant." 103 Or. at 498, 204 P. 958, 206 P. 290.

The opinion does not state whether the defendant had entrusted the songbook to Myers or had any other connection with it. At trial, the state had introduced the songbook into evidence in order to establish the doctrines espoused by the IWW, not to show that the defendant was a member. Absent a connection between the songbook and the defendant, Laundy is not dispositive of the issue before us.

More relevant is State v. Hoover, 219 Or. 288, 347 P.2d 69 (1959). In Hoover, police officers stopped an automobile driven by the defendant after a report that the occupants had threatened someone with a gun. During the stop, one of the occupants whispered to an officer that the defendant had given the gun to his wife, who was sitting on it. The officer then reached into the car, pushed the woman aside and seized the gun. The defendant was subsequently charged with being a felon in possession of a firearm, and he moved for the return and suppression of the gun on the ground that it was obtained by the state in violation of section 9. This court stated:

"The revolver was concealed by the device of having Mrs. Hoover [the defendant's wife] sit on it. Thus, we might easily dispose of the case by ruling that the search, if in fact unlawful, was a search of Mrs. Hoover's person and not of the automobile. Were this the case it would be her rights that were violated and the defendant would have no standing to make a complaint. State v. Laundy, supra. * * * However, since the revolver was lying on the car seat we think that the search was equally a search of the car and of Mrs. Hoover. Neither party has raised the line of argument we have just suggested, and we will treat the search as of the automobile alone."

219 Or. at 296-97, 347 P.2d 69. Although the court's statement was dictum that amounted to an offhand suggestion, it is clearly on point if it retains any validity.

Both Laundy and Hoover were premised on the notion that section 9 interests are limited to possessory interests in a place searched or in a thing seized. In Laundy, the search of Myers' desk could only have infringed upon Myers' rights because only Myers was shown to have had a possessory interest in the desk. 103 Or. at 498, 204 P. 958, 206 P. 290. Similarly, in Hoover the search of Mrs. Hoover could only have infringed upon her rights because only she could have had a possessory interest in her body. 219 Or. at 296-97, 347 P.2d 69. But the search of the automobile could have infringed upon the defendant's rights because, as the court went to some pains to point out, he was a bailee, which the court deemed to be "an interest of sufficient substance to fall within constitutional protection." Id. at 296, 347 P.2d 69. By implication, the search could not have infringed upon the defendant's rights if he had been a mere occupant and thus lacked a possessory interest in the automobile.

Since the decisions in Laundy and Hoover, however, this court has frequently recognized that section 9 interests are...

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