*1 August Argued January affirmed denied submitted reconsideration 299) 20, 1986 (302 17, petition October denied review November OREGON, STATE OF Respondent, BAUMEISTER, BRIAN KEITH Appellant. OREGON, OF STATE Respondent, BAUMEISTER, JEFFERY L.
Appellant. A36520) (85-0367 (D02); CA (D01), 85-0367 Defender, Salem, argued Estes, Deputy Public Ernest E. Gary D. the brief was him on appellants. With the cause for Babcock, Defender, Salem. Public General, Salem, argued Attorney Assistant
Jeff were Dave on the brief respondent. With him cause for Frohnmayer, Attorney General, Mountain, Jr., and James E. General, Solicitor Salem. Presiding Judge, Richardson,
Before and Warden and Judges. Newman, *2 specially concurring. J.,
Warden, In appeal, appeal this consolidated defendants their degree. for in the ORS 164.225. burglary convictions first sole in denying Their contention is that the trial court erred police seized from suppress their motion to evidence that a Jeffery defendant Baumeister’s car without search warrant. police We hold that searched the car and seized the evidence with his consent and affirm. suspects as in the
Defendants had been arrested
convicted,
Jeffery
and
burglary
they
was
which
requested
at
officer
station when a
giving
to search his car. He
consent form
permission
signed
Immediately
requested
to do so.
before
officer
permission
required by
permission,
Jeffery
he had read
L Ed 2d
talk.1
and had asked him whether he wished to
to two hours
Approximately
“No.”
one and one-half
said:
originally stopped and
before
officers who had
warnings. Jeffery
arrested defendants had read them Miranda
want
had at
time said that he did not
he said that
would
police,
there
some evidence that
*3
attorney.
spoken
to an
until
had
his
that,
right
invoked
Defendants
after
counsel,
required
the
to
right
to silence and
to
asking him for
requests and were foreclosed from
honor those
v.
451
car. See Edwards
US
permission to search his
(1981);
Mosley,
v.
477, 101
1880,
Michigan
S Ct
(1975).
96,
They
321,
L Ed
contend
423 US
46
2d 313
during the
of
evidence found
request
that
and the use
the
that
self-incrimination
right against compelled
violated his
search
12,
I,
Oregon
the
Constitution
by Article
section
of
guaranteed
Amendment
the
to
federal constitution.
and the Fifth
against testimonial
right
provisions protect
Those
757,
v.
86 S
California,
Schmerber
384
self-incrimination.
Cram,
577, 160
1826, 16
(1966);
v.
176 Or
Ed 2d 908
State
Ct
L
(1945).
is not an
A
to search
283
defendant’s consent
for Miranda
suppression
incriminating
subject
statement
I,
12,
requires
Oregon
also
of
constitution
Article
section
199, 712
(1986);
Smith,
Kell, 77 App
given.
State v.
P2d 827
be
State v.
Or
(1985).
675,
(1984),
rev allowed
“* * * Simply put, a consent to search is not an incriminat- consent, ing itself, statement. in and of [The defendant’s] not evidence which tends to incriminate him. While the pursuant search taken to that incriminating consent disclosed evidence, physical, this evidence is real and not testimonial. * * *” Cody Solem, supra, (Citations 755 F2d at 1330. omitted.) Jeffery’s consent to the search was not in itself an incriminat ing statement2 and the admission of evidence obtained in that search did not violate either defendant’s state or federal constitutional rights.3
Affirmed.
WARDEN, J., specially concurring.
I concur because the police
probable
had
cause to
search defendant’s
car and because the recently-discovered
automobile exception to the
requirement
I,
warrant
of Article
section
of the Oregon Constitution
excuses their failure to
Brown,
warrant. State v.
obtain a
301 Or
State
(1986);
(1986).
Whether defendant
properly
could
consent
to the search after
85, 432
(1967),
court,
decision,
In State v.
P2d 679
in a 4-3
Amendment,
held
suspect
custody
under the Fifth
a defendant who
inis
and is a focal
rights
in a case must be informed of his constitutional
before evidence seized
pursuant
effect,
to his consent to search is admissible at trial. The court stated: “In
request
request
against
to search is a
that defendant be a witness
himself which he is
privileged
party
to refuse under the Fifth Amendment.”
requesting do I that issue. Neither resolution of my colleagues’ with agree it. See State v. them to discuss necessary think that it was (Warden, J., (1986) 613, Bradbury, concurring). specially