State v. Weaver

• Decision Date: 23 June 1994
• Citation: 874 P.2d 1322,319 Or. 212
• Parties: STATE of Oregon, Petitioner on Review, v. James R. WEAVER, Respondent on Review. CC C9103-31294; CA A71768; SC S40895.
• Court: Oregon Supreme Court

Page 1322

874 P.2d 1322

319 Or. 212

STATE of Oregon, Petitioner on Review, v. James R. WEAVER, Respondent on Review.

CC C9103-31294; CA A71768; SC S40895.

Supreme Court of Oregon.

Argued and Submitted March 8, 1994.

Decided June 23, 1994.

Brenda JP Rocklin, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With her on the petition were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

John R. Ransom, Ransom, Blackman & Weil, Portland, argued the cause and filed the response for respondent on review.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS and GRABER, JJ.

VAN HOOMISSEN, Justice.

The state seeks review of a Court of Appeals' decision that upheld the trial court's order granting defendant's pretrial motion to suppress evidence seized by the police during a warrantless search of defendant's store. The Court of Appeals, in banc, affirmed the trial court's decision that the police invaded defendant's constitutionally protected privacy interests when they searched for and seized evidence without a warrant and before obtaining defendant's consent, and held that that evidence must be suppressed. State v. Weaver, 121 Or.App. 362, 366, 854 P.2d 962, adhered to on reconsideration, 124 Or.App. 615, 863 P.2d 1273 (1993). The issue is whether defendant's written consent to search validated any search or seizure that occurred before defendant gave his consent. For the reasons that follow, we hold that it did not. Accordingly, we affirm the decision of the Court of Appeals and the order of the trial court.

Determination of the legality of searches and seizures depends largely on the facts of each case. State v. Ehly, 317 Or. 66, 74, 854 P.2d 421 (1993). The following facts are supported by the record and are consistent with the trial court's ultimate conclusions. ¹ About noon on November 28, 1990, several police officers entered defendant's secondhand store to determine whether the store was in compliance with certain county ordinances. Those ordinances require secondhand dealers who purchase certain designated property--such as guns, jewelry, and audio equipment--to complete a prescribed report (PS51) on each purchase, to forward such reports daily to the police, and to retain the purchased property for at least 15 days before resale. See Multnomah County Code § 6.81.080-.090 (so providing). ² The police did not obtain a search warrant before commencing the compliance check.

The November 28 compliance check came about because, in October 1990, the police had executed a search warrant at defendant's store to look for stolen property. During that search, Sergeant Merrill instructed Deputy Hutchison on how to check for compliance with Multnomah County Code § 6.81.080-.90. Sergeant Merrill randomly selected 31 PS51 reports that had been prepared by defendant's employees. The officers concluded that 8 of the 31 PS51 reports had been filled out incorrectly. The officers decided to carry out a more extensive compliance check later.

When the police arrived at defendant's store on November 28, the police asked the store manager for consent to search, but the manager did not consent and referred the police to defendant. Deputy Hutchison then telephoned defendant and asked for his consent to search. Defendant asked Deputy Hutchison to come to the place where defendant was working away from his store to discuss the matter. Deputy Hutchison agreed and he and another officer went to meet defendant.

Other officers remained at the store. Before 2 p.m., those officers seized defendant's Firearms Acquisition and Disposition Log, ³ took it to their office and copied it, brought it back to the store, and used it to check the guns at the store against the PS51 reports. ⁴ The officers then began seizing guns from defendant's store as they uncovered problems with the required paperwork.

Meanwhile, Deputy Hutchison met with defendant, seeking his consent to search the store. Deputy Hutchison gave defendant a standardized consent form. Defendant then telephoned his lawyer, asking for advice as to whether he should sign the consent form. Deputy Hutchison also spoke with defendant's lawyer on the telephone and read to him a portion of the consent form. As a result of that conversation, Deputy Hutchison amended the consent form to read:

"CONSTITUTIONAL RIGHTS WARNING: SEARCH BY CONSENT "BEFORE ANY SEARCH IS MADE, YOU MUST UNDERSTAND YOUR RIGHTS

"(1) You may refuse to consent to a search and may demand that a search warrant be obtained prior to any search of the premises described below.

"(2) If you consent to a search, anything of value as evidence seized in the course of the search can be used in court against you.

"I HAVE READ THE ABOVE STATEMENT OF MY RIGHTS AND AM FULLY AWARE OF THESE RIGHTS.

"I HEREBY CONSENT TO A SEARCH WITHOUT WARRANT OF THE FOLLOWING (DESCRIBE PREMISES, AUTO OR OTHER SUBJECT OF SEARCH): ENTIRE PREMISE OF ABE'S SECONDHAND STORE. FOR: ALL USED FIREARMS AND CORRESPONDING PAPER RECORDS; ONLY THOSE JEWELRY ITEMS & PAPERWORK WITH COMPLIANCE IRREGULARITIES, AND ONLY THOSE OTHER ITEMS OF REGULATED PROPERTY & PAPER RECORDS WITH COMPLIANCE IRREGULARITIES. BY DEPUTIES OF THE DIVISION OF PUBLIC SAFETY, MULTNOMAH COUNTY, OREGON.

"I HEREBY AUTHORIZE THESE OFFICERS TO SEIZE ANY ARTICLE WHICH THEY CONSIDER TO BE OF VALUE AS EVIDENCE.

"THIS STATEMENT IS SIGNED OF MY OWN FREE WILL WITHOUT ANY THREATS OR PROMISES HAVING BEEN MADE TO ME."

The emphasized passage was added as a result of Deputy Hutchison's conversation with defendant's lawyer. At 2 p.m., defendant signed the amended consent form.

As a result of the compliance check and the seizure of the guns, defendant was charged with 52 counts of failing to register the transfer of handguns. ORS 166.420. He also was charged with 249 counts of failing to register the transfer of used firearms. ORS 166.427.

Before trial, defendant moved to suppress the evidence seized during the compliance check, on the ground that the seizures violated Article I, section 9, of the Oregon Constitution. ⁵

At the hearing on the motion to suppress, defendant testified that he signed the consent form because his lawyer advised him to do so. Defendant's lawyer testified:

"I advised my client to consent to an inspection, to a search of the premises, but to a seizure of only those items stolen, contraband, as the purpose of the search was explained to me by Officer Hutchison."

The trial court specifically stated that it believed the lawyer's testimony on that point. The court held that defendant had consented only to a search for stolen property, but not to the seizure of evidence of any recordkeeping violation. As an alternative basis for granting defendant's motion to suppress, the trial court held that defendant's consent, given at 2 p.m., did not justify any search or seizure that had occurred before that time. The state appealed. See ORS 138.060(3) (the state may appeal a pretrial order suppressing evidence).

The Court of Appeals, in banc, affirmed the trial court's ruling:

"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." State v. Weaver, supra, 121 Or.App. at 366, 854 P.2d 962 (footnote omitted).

Four judges dissented, explaining that,

"when the search began, it was unauthorized. The trial court and the majority say that that fact ends the inquiry. They err because they fail to consider whether the search and seizure that occurred before the consent was signed fall within the purview of the consent. * * * A knowing consent made subsequent to the inception of the search and seizure could relate back to the beginning of the search and act as a waiver of defendant's section 9 rights regarding the privacy interests that were invaded before the consent form was signed." Id. at 371-72, 854 P.2d 962 (Edmonds, J., dissenting).

On reconsideration, the Court of Appeals examined the case in the light of this court's decision in State v. Rodriguez, 317 Or. 27, 854 P.2d 399 (1993), and concluded that defendant's consent did not relate back to justify any earlier search or seizure. State v. Weaver, supra, 124 Or.App. at 617-18, 863 P.2d 1273. We allowed the state's petition for review.

The state contends that the Court of Appeals erred in creating what the state characterizes as a per se rule that warrantless searches and resulting seizures are always unreasonable when consent is obtained after the search has begun. The question is: whether defendant's written consent to search validated any search or seizure that occurred before defendant gave his consent. The state argues that, because defendant voluntarily consented to a search and his consent was not the result of exploitation of any unlawful police conduct, the search and seizures here were lawful regardless of the timing. The state concedes that, in giving consent, defendant did not specifically consent to any search or seizure that already had occurred before he signed the consent form. The state asserts, however, that that point is not dispositive, because the consent was not obtained as a result of exploitation of any prior unlawful police conduct.

Because the parties have made no statutory arguments and we have found no dispositive statute, we first consider defendant's claim under Article I, section 9, of the Oregon Constitution. See State v. Rodriguez, supra, 317 Or. at 32, 854 P.2d 399 (court addresses subconstitutional arguments...