State v. Walker

• Decision Date: 28 July 2011
• Docket Number: (CC 065202FE; CA A136541; SC S058548).
• Citation: 258 P.3d 1228,350 Or. 540
• Parties: STATE of Oregon, Respondent on Review,v.Bonnie Lou WALKER, Petitioner on Review.
• Court: Oregon Supreme Court

350 Or. 540

258 P.3d 1228

STATE of Oregon, Respondent on Review,

v.Bonnie Lou WALKER, Petitioner on Review.

(CC 065202FE; CA A136541; SC S058548).

Supreme Court of Oregon, En Banc.

Argued and Submitted Jan. 13, 2011.Decided July 28, 2011.

On review from the Court of Appeals.^*Bronson D. James, Bronson James, LLC, Portland, argued the cause and filed the briefs for petitioner on review.Jamie K. Contreras, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.LANDAU, J.

In this criminal case, the police obtained a warrant to search a house for stolen property. When they arrived at the house to execute the warrant, they encountered defendant. They placed defendant in handcuffs, gave her Miranda warnings, and took her outside while they searched the house. When they discovered what appeared to be defendant's purse in the house, they asked for permission to search its contents. Defendant agreed, and police found methamphetamine inside the purse. Based on that evidence, she was charged with possession of methamphetamine. Defendant moved to suppress the evidence. The trial court denied the motion on the grounds that defendant consented to the search and, in the alternative, that the search of the purse was authorized by the warrant. Defendant appealed, and the Court of Appeals affirmed on the ground that the warrant authorized the search, because defendant, in the court's view, had failed to preserve her contention to the contrary.

We hold that defendant adequately preserved her contention that the search was not authorized by the warrant, but that she failed to meet her burden of proving that the warranted search was unlawful. We therefore affirm, albeit on different grounds.

I. BACKGROUND

A. The Search

We recite the facts consistently with the trial court's findings of historical fact if supported by evidence in the record. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005). The Medford Police Department obtained a warrant to search a house for property stolen in a burglary, including DVDs, a cell phone, and personal identification. No party was named in the warrant. Two narcotics detectives, Hatten and McCurley, were asked to assist with the execution of the warrant. Based on information from a confidential informant, both detectives suspected that one of the residents, Cecil Baker, was selling drugs from the house. No separate warrant was obtained authorizing the search for drugs, however.

Hatten, McCurley, and several other detectives went to the house to execute the warrant. They entered the home, guns drawn. They found at the house Baker, along with a number of other individuals. Among those other individuals was defendant, whom the officers believed to be Baker's girlfriend. The officers found defendant in Baker's bedroom. The police moved all of the occupants to a side patio area outside. They handcuffed all of the occupants, including defendant, and patted down each person for weapons. One of the officers outside then read the search warrant aloud to the handcuffed occupants and gave Miranda warnings to the entire group. Meanwhile, Hatten and McCurley asked Baker for consent to search his bedroom, and he agreed.

Hatten and McCurley found a purse in Baker's bedroom and assumed that it belonged to defendant because of her relationship with Baker. Hatten went back to the patio and waved for defendant to come into the house to speak with him. Hatten told defendant that he believed that he had found defendant's purse in Baker's room and asked permission to search the purse. While he was speaking to her, defendant told Hatten that “she didn't do anything so she didn't know why she had to be there.” Nevertheless, she consented to the search of her purse.

Based on that consent, McCurley searched the purse and found a glass pipe with a white powdery residue inside. It field-tested positive for methamphetamine. Hatten brought defendant back to Baker's bedroom, where McCurley read Miranda warnings to her a second time and then questioned her. Defendant made several incriminating statements, resulting in her arrest for unlawful possession of methamphetamine, ORS 475.894.

B. Trial Court Proceedings

Before trial, defendant moved to suppress the evidence found in her purse and her later statements to McCurley. She argued that the search violated both the state and federal constitutions because her purse was outside the scope of the warrant and because her consent either was not voluntary or was obtained by the police through the exploitation of prior unlawful conduct.

Regarding defendant's first argument—the scope of the warrant—defendant asserted:

“The search warrant * * * is void of any language authorizing officers to seize persons that may be present at the residence during its execution nor does the search warrant authorize a search of the personal effects belonging to persons who may be visiting the dwelling at the time the warrant is executed. The warrant was plainly invalid in regards to the seizure and search of defendant and her belongings.”

In support, defendant cited the Fourth Amendment to the United States Constitution, Article I, section 9, of the Oregon Constitution, and ORS 133.565(2)(b), which sets out the particularity requirements of all search warrants. Defendant then continued:

“A search warrant authorizing a search of a particular premise does not allow authorities executing that warrant to search people who happen to be on the premises at the time unless the warrant also authorizes the search of named persons. State v. Mickelson, 18 Or.App. 647, 526 P.2d 583 (1974); State v. Mays, 19 Or.App. 518 (1974). A person's mere presence as a houseguest when the house is search[ed] under the authority of a warrant does not automatically give the police the authority to either frisk or search that person. State v. Myers, 55 Or.App. 370 (1981); State v. Swibies, 183 Or.App. 460

[53 P.3d 447]

(2002).”

Regarding defendant's second argument—consent—she argued that her consent was not voluntary and that, even if it was voluntary, the police obtained her consent through the exploitation of her unlawful detention.

In response to defendant's first argument, the state took the position that the fact that the purse could hold the types of items described in the warrant was entirely dispositive: “Police could validly search defendant's purse under the search warrant. The areas subject to lawful search pursuant to the warrant are defined by the description set forth on the face of the warrant.” As for the second argument, the state responded that defendant's consent was voluntary and that there was no unlawful detention.

At the suppression hearing, defendant testified that, at the time the police arrived at Baker's residence, she had been sleeping in the bedroom, but that she had arrived approximately one hour earlier. She said that the police immediately placed her in handcuffs and that she remained in handcuffs the entire time the police were searching the residence, approximately 45 minutes to an hour. She also testified that she remembered being read her Miranda rights and that detective Hatten was polite and did not threaten her when he asked permission to search her purse. When asked whether she consented to the search of her purse of her own free will, she responded affirmatively.

Detectives Hatten and McCurley also testified at the hearing. Hatten testified that, although he and McCurley were there to assist in searching for the stolen property, he never saw the warrant and “didn't know the exact property stolen” that he was supposed to be looking for. McCurley testified that he did have a list of stolen property that he was looking for based on the warrant, but that they were also using the opportunity to look for narcotics. In fact, the only place Hatten and McCurley helped to search was Baker's bedroom. Neither detective could remember how long defendant was detained or remained handcuffed.

The trial court found that “[defendant's] consent was voluntary” and that her detention was not “inappropriate.” The court did not make a specific finding of fact about how long defendant had been kept in handcuffs on the patio; it concluded that, even if she had been restrained for up to an hour, the restraint was not unreasonable.

The trial court stated that the only “interesting” issue, in its opinion, was “the authority of officers to search for evidence of controlled substances when the search warrant was specifically issued to search and seize evidence of items stolen during a burglary.” The trial court requested additional briefing on that issue. In defendant's supplemental memorandum addressing that issue, she did not refer to any arguments under Article I, section 9, focusing instead on arguments under the Fourth Amendment. Ultimately, the trial court denied the motion to suppress, holding that the search of the purse was within the scope of the warrant because it “could have held some of the items listed in the search warrant” and, in the alternative, that the detectives obtained defendant's consent to search her purse.

Defendant entered a conditional guilty plea, reserving the right to appeal the trial court's denial of her motion to suppress.

C. Before the Court of Appeals

On appeal, defendant argued that the trial court erred in denying her motion to suppress for two reasons. First, she argued that, under Article I, section 9, the search of her purse exceeded the scope of the warrant. Defendant argued that her purse was a part of her person and, because the warrant did not authorize the search of nonresident “social guest[s],” the search of her purse was outside the scope of the warrant. Second, she argued that her consent, though voluntary, was obtained through police exploitation of prior unlawful conduct-specifically, her restraint in...