State v. Weaver

• Decision Date: 23 June 1993
• Citation: 121 Or.App. 362,854 P.2d 962
• Parties: STATE of Oregon, Appellant--Cross-Respondent, v. James R. WEAVER, Respondent--Cross-Appellant. C9103-31294; CA A71768. . *
• Court: Oregon Court of Appeals

Page 962

854 P.2d 962

121 Or.App. 362

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

C9103-31294; CA A71768.

Court of Appeals of Oregon In Banc. ^*

Argued and Submitted Sept. 4, 1992.

Resubmitted in Banc April 8, 1993.

Decided June 23, 1993.

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause for appellant--cross-respondent. With her on the briefs were Charles S. Crookham, Atty. Gen., Virginia L. Linder, Sol. Gen., and Mary H. Williams, Asst. Atty. Gen., Salem.

John S. Ransom, Portland, argued the cause for respondent--cross-appellant. With him on the brief were James D. Lang and Ransom, Blackman & Weil, Portland.

DE MUNIZ, Judge.

Defendant owns a secondhand store that sells guns. He was indicted on 52 counts of failing to register the transfer of handguns and on 249 counts of failing to register the transfer of used firearms. ORS 166.420; ORS 166.427. The state appeals an order granting defendant's motion to suppress evidence that was seized during a warrantless search of his store. ORS 138.060(3). We affirm.

We take the facts from the trial court's findings that are supported by the evidence and the evidence that is consistent with those findings. State v. Davis, 313 Or. 246, 250, 834 P.2d 1008 (1992); State v. Huckaba, 115 Or.App. 728, 730, 839 P.2d 768, rev. den., 315 Or. 272, 844 P.2d 207 (1992).

On October 19, 1990, Multnomah County sheriff's deputies and Portland police officers, armed with a warrant, searched defendant's store. They were looking for stolen property that had been sold to the store by a known burglar. During that search, Deputy Hutchison asked Sergeant Merrill to demonstrate how to check for compliance with an ordinance that regulates record keeping by secondhand dealers. The ordinance requires the dealer, when purchasing regulated property, to record the identity of the seller and a description of the property on a form called a secondhand dealer report. ¹ Multnomah County Code § 6.81.080. The ordinance also requires the dealer to keep regulated items in the store for 15 days after purchasing them. Multnomah County Code § 6.81.090.

With defendant's cooperation, Hutchison and Merrill examined 31 secondhand dealer reports. The officers found irregularities on eight of the reports and seized them. ²

Hutchison decided to do a more extensive "compliance check." He returned to defendant's store on November 28, 1990, with 12 or 13 officers. According to Hutchison, they arrived around noon. Defendant was not at the store, but the manager, Laudum, was there. The officers began conducting the compliance check. They soon discovered that the firearms transfer forms required by ORS 166.427 were not in the store. Hutchison then asked Laudum for permission to search the store, and Laudum said that Hutchison would have to ask defendant.

Hutchison spoke with defendant on the telephone. Defendant asked Hutchison to come and speak to him in person at the fire station where he was working. Hutchison and Sergeant Beamer went to the fire station and asked defendant if they could search his store. Defendant called his attorney, Alterman, and spoke with him while the officers waited. Alterman then spoke with Hutchison and negotiated an amendment to a written consent form. Alterman then advised defendant to sign the form. A notation on the form indicates that defendant signed it at 2:00 p.m.

Merrill testified and explained how the search was conducted. A deputy took the Acquisition Disposition Register (ADR), a federally required record, to the sheriff's office, made photocopies of it and brought them back. The officers checked the brands and serial numbers of the guns that were in the store. Then, they checked the ADR to ascertain the secondhand dealer report number for each gun and asked the employees for each report. Most of the reports were not available, and some reports did not match the guns listed on the ADR. The officers seized most of the guns in the store. Merrill testified that the officers began examining the ADR, the guns and the secondhand dealer reports 30 to 45 minutes after arriving at the store.

Detective Howe testified about the property receipts that were filled out while the guns were being seized. He said that he put an identification tag on each gun while another officer entered a description of the gun and the tag number on the property receipt. After the officer entered the information about a gun in the property receipt, another officer removed the gun to the property truck. Two of the three property receipts listed 12:15 p.m. as the "occurrence" time and the third receipt did not list any occurrence time. Howe examined one of the receipts and identified it. He said that the 12:15 time might not be accurate, but he indicated that he probably started tagging the guns by 1:00 p.m.

The trial court granted defendant's motion to suppress all of the evidence seized during the November 28 search on two grounds. First, the court found that the officers began searching for evidence and seizing it before Hutchison obtained defendant's consent. Second, the court concluded that the seizure of the ADR and the guns exceeded the scope of the consent that defendant had granted, because defendant had not consented to the seizure of evidence of record keeping violations. ³

The state contends that there is no evidence to support the court's finding that the officers began their search before Hutchison obtained defendant's consent. The state is wrong. Hutchison and Merrill testified that the officers arrived at defendant's store around noon. Merrill's and Howe's testimony indicates that the seizure of evidence began no later than 1:00 p.m. The consent form indicates that defendant purportedly consented at 2:00 p.m. 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. ⁴ The state contends that the court abused its discretion by refusing to allow the state to present additional evidence to clarify when the search began. To preserve that alleged error, the state was required to make an offer of proof on what evidence it would have presented. State v. Busby, 315 Or. 292, 298, 844 P.2d 897 (1993). The state did not make an offer of proof, nor did it attempt to do so. Compare State v. Rodriguez, 115 Or.App. 281, 840 P.2d 711 (1992) (reversible error when the defendant had a right to make an offer of proof and the court refused to allow him to make the offer). The state has waived any objection it may have had to the court's decision to not allow the state to reopen the evidentiary phase of the hearing.

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. ⁵ If any of the evidence was lawfully seized, the state has not met its burden of proving it.

Because the state did not prove that the search for and seizure of evidence followed defendant's consent, we need not decide whether the seizure exceeded the scope of defendant's consent.

In a separate motion, defendant moved to suppress the ADR on the ground that federal law forbade the officers from asking defendant for permission to examine it. The court denied that motion. That ruling is the subject of defendant's cross-appeal. We need not address separately the issues raised in his cross-appeal, because the court correctly granted his motion to suppress all of the evidence that was seized on November 28. The cross-appeal is moot.

Affirmed on appeal and on cross-appeal.

EDMONDS, Judge, dissenting.

Once upon a time, there lived in a far away land some people called "Oregonians." Because these people had traveled a long way to start a new life in the wilderness, they desired to adopt laws that would protect their privacy and possessory interests from government tyranny. To that end, they adopted a law called "Section 9." It said:

"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.) ¹

The people also said that if a person consented to a search of a place in which he had a privacy or property interest, then the search was "reasonable," because that person had given up those interests with respect to that entry. ² After all, Oregonians were an intelligent and independent people who were capable of making up their own minds about whether to waive the protection of section 9. For many years, the people lived happily under the protection of section 9. Although there were occasional disputes about the meaning of section 9, no one doubted that a search by "consent" was a "reasonable search."

In a village in the kingdom, there lived a man by the name of Weaver who sold used items to Oregonians. One day, the queen's soldiers wished to investigate as to whether Weaver was obeying a law ³ that required him to keep certain records regarding his sales. They went to his store but he was not there. However, in checking the records, they found that there were no transfer forms for used firearms. ⁴ They asked the store manager if they could search the premises, believing that they might find firearms for which no transfer forms existed. The store manager telephoned Weaver and one of the soldiers, Hutchinson, explained to...