State v. BurnsState v. Burns
- Reporters:
- , ,
- Before:
- Foley
This is an appeal by the state from an order of the trial court suppressing evidence. It appears from the order allowing the motion to suppress that а hearing on the motion was held at which tеstimony was produced by the state. However, the state in its designation of record designated from the transcript only that рortion‘in which the court gave its reasons for allowing the motion to suppress. Thus we do not have before us the facts ① frоm which to determine the correctness of the court’s ruling.
The state concedes in its brief that this was a warrantless search and that
“[t]he law is clear that a warrantless search is prima facie unreasonable. State v. Keith, 2 Or App 133, 140-41; 465 P2d 724 (1970). Furthermore, the State carries the burden, when the search is challеnged by a Motion to Suppress, to show that there is some circumstance that wоuld be sufficiently strong in the eyes of the law to overcome the constitutional guarantees against warrantless searches and seizures. Oreg. Const. Art. I, Sec. 9;U. S. Const. Amend. IV .”
In ruling on the motion to suppress the court said:
<£# * * pm satisfiеd * * * there was not * * * probable cause, to go ahead and search the motor vehicle or ask for consent to go ahead and search.
This statement is erroneous. There is no requirement *592 that an. оfficer have probable cause to search before asking for cоnsent to search. The state contends that the court’s erroneous statement is ground for reversal. But to sustain the state’s рosition and reverse the trial court, it is nеcessary to have before us facts from which it can be ascertained thаt valid consent to search was, in fact, given by defendants. Without a record which disсloses these facts, we are unablе to make this determination. Although the reаson given by the court for its decision was erroneous, we cannot condude thе ruling was incorrect because the state failed to carry its burden of furnishing sufficient record to demonstrate otherwise.
Affirmed.
Notes
Thе state in its brief purports to set forth the facts surrounding the seizure but they are disputed by dеfendant and not supported by any record.