State v. Weaver

• Decision Date: 28 July 1993
• Parties: STATE of Oregon, Appellant-Cross-Respondent, v. James R. WEAVER, Respondent-Cross-Appellant. C9103-31294; CA A71768. * . On Appellant's Motion for Reconsideration
• Court: Oregon Court of Appeals

Page 1273

863 P.2d 1273

124 Or.App. 615

STATE of Oregon, Appellant-Cross-Respondent, v. James R. WEAVER, Respondent-Cross-Appellant.

C9103-31294; CA A71768.

Court of Appeals of Oregon In Banc ^*.

On Appellant's Motion for Reconsideration July 28, 1993 Decided Nov. 17, 1993 Reconsideration Denied Jan. 12, 1994 Petitions for Review Allowed Feb. 1, 1994.

Theodore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Brenda J. Peterson, Asst. Atty. Gen., for motion.

DE MUNIZ, Judge.

The state moves for reconsideration of our opinion, 121 Or.App. 362, 854 P.2d 962 (1993). We allow reconsideration and adhere to our opinion.

In its motion for reconsideration, the state takes issue with the following language from our opinion:

"The evidence supports a finding that the officers began searching for and seizing evidence well before defendant signed the consent form. The officers invaded defendant's constitutionally protected privacy interests when they began searching and seizing evidence without a warrant, without consent and without any other exception to the warrant requirements of Article I, section 9, and the Fourth Amendment. The fact that defendant subsequently consented does not vitiate the unlawfulness of a search and seizure that violated the state and federal constitutions at its inception." 121 Or.App. at 366, 854 P.2d 962.

The state asserts that our holding is contrary to the Supreme Court's analysis in State v. Rodriguez, 317 Or. 27, 854 P.2d 399 (1993), and State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981).

The state correctly asserts that Quinn and Rodriguez stand for the proposition that evidence seized in a subsequent consent search will be suppressed "only in those cases where the police have exploited their prior unlawful conduct to obtain that consent." 317 Or. at 40, 854 P.2d 399. The state also correctly asserts that, here the police did not exploit their prior unlawful conduct to obtain defendant's consent. However, that rule, or the misapplication of that rule as asserted by the state, is not the basis of our holding. Instead, the rationale underlying our holding is that the state failed to carry its burden of proving that the evidence it wants to introduce against defendant at trial was seized after defendant consented. The trial court made a factual finding that the officers began searching for and seizing evidence well before defendant signed the consent form. There is evidence to support that finding. We reiterate:

"It is possible that some of the searching and seizing occurred after defendant consented. However, nothing in the record suggests which items were seized after 2:00 p.m., nor does the record indicate which evidence was seized without the benefit of information contained in the ADR. If any of the evidence was lawfully seized, the state has not met its burden of proving it." 121 Or.App. at 367, 854 P.2d 962. (Footnote omitted.)

We reject the state's suggestion that Quinn supports the proposition "that suppression [is] not required even if a * * * seizure occurred before the officers obtained defendant's consent." The whole point of Quinn and Rodriguez is that, although the police engaged in unlawful conduct, there was no direct causal connection between the prior unlawful conduct and the evidence seized during a subsequent consensual search. Here, unlike Quinn and Rodriguez, evidence was seized in an unlawful search that preceded defendant's consent. The state's record fails to show what, if any, items were seized after defendant's consent. Had the state proved that items were seized after defendant's consent was obtained, the state's reliance on Quinn and Rodriguez would be justified. However, on this record, that reliance is misplaced.

Reconsideration allowed; opinion adhered to.

EDMONDS, J., dissents and files opinion joined by RICHARDSON, C.J., and DEITS, J.

EDMONDS, Judge, dissenting.

The trial court concluded that the search by the police in this case began before defendant gave his consent and that the seizures that occurred thereafter exceeded the scope of the consent given by defendant. Based on those conclusions, it granted defendant's motion to suppress. This court did not adopt the trial court's second basis for allowing the motion. It affirmed, reasoning that "[t]he fact that defendant subsequently consented does not vitiate the unlawfulness of a search and seizure that violated the state and federal constitutions at its inception." 121 Or.App. at 366, 854 P.2d 962.

In its motion for reconsideration, the state correctly points out that when a search and seizure occurs as the result of a consent to search, the evidence seized will be suppressed only (1) if the consent is involuntary or (2) if the consent is the result of an exploitation of unlawful police conduct. See State v. Rodriguez, 317 Or. 27, 39, 854 P.2d 399 (1993). The majority concedes that the "exploitation" test under Rodriguez has not been met. It says:

"The state also correctly asserts that, here the police did not exploit their prior unlawful conduct to obtain defendant's consent." 124 Or.App. at 617, 863 P.2d at 1275.

Therefore, the only questions that remain are whether the consent was voluntary and whether the search was within the scope of the consent. The consent form expressly authorized the seizure of "any article which [the officers] considered to be of value as evidence." To determine whether defendant's consent to search was voluntary, the trial court was required to examine the totality of the facts and circumstances. See State v. Kennedy, 290 Or. 493, 501, 624 P.2d 99 (1981); State v. Quinn, 290 Or. 383, 394, 623 P.2d 630 (1981). It did not. Similarly, the majority's analysis about voluntariness is "too quick."

We start with the fundamental principle that flows from Article I, section 9 that "all persons are to be free from unreasonable government searches and seizures of their person and property." State v. Quinn, supra, 290 Or. at 390, 623 P.2d 630. What makes searches without consent or other lawful predicates "unreasonable" is the "unlawful" invasion of a privacy interest or an "unlawful" significant interference with possessory or ownership interests in property. See State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986). Searches with consent are lawful because the holder of a privacy or possessory interest chooses not to invoke the protection of the constitution. A waiver of the right to invoke the protection of the constitution can occur at any time, and nothing in the constitution prohibits a waiver from relating back after a search begins. For example, the failure of the defendant to object to the search of his suitcase after he consented to the search of his car has been held by us to be a consent to that search because he did not limit the scope of his initial consent or withdraw his consent. See State v. Allen, 112 Or.App. 70, 826 P.2d 127, rev den. ...