STATE OF OREGON, Respondent, v. STEPHEN R. MEYER, Appellant.
(CM 89-0177, CM 89-0179, CM 89-0180; CA A61964 (Control), A61965, A61966)
Court of Appeals of Oregon
May 19, 1993
Argued and submitted February 27, 1991; resubmitted In Banc May 5
120 Or App 319 | 852 P.2d 879
(Cases Consolidated)
ROSSMAN, J.
Durham, J., concurring in part; dissenting in part.
Defendant appeals his convictions for possession of a controlled substance,
At 7:45 a.m., on January 27, 1989, Deputy Stephens, U.S. Marshall Barr аnd 4 other officers executed a warrant for the arrest of defendant for a federal narcotics violation. The officers considered it a high risk operation. Stephens knocked on the door of defendant‘s residence and yelled, “Police, arrest warrant.” Barr tried the door knob and, finding it locked, kicked in the glass door. Deputy Eastham entered first, followed by Stephens and Barr. All of them were carrying weapons. Outside, two other officers guarded the other doors to the house. The officers found defendant and his wife in the doorway between their bedroom and the kitchen. Defendant was naked, and his wife wore only a robe. Eastham pointed his pistol at the couple and ordered them to lie on the floor. Both were thеn handcuffed with their hands behind their backs, facing the floor. Barr told defendant that he had a federal warrant for his arrest, but did not present it and did not give Miranda warnings to either defendant or his wife.
Stephens and Deputies Downing and Chilcote conducted a “security sweep” of the house, the attic crawlspace and outbuildings for weapons and other persons. Stephens saw some rifles on the closet wall in a spare room and seized them. At some point while defendant‘s wife was still on the floor, Barr shouted “Fuck you” at her, apparently in response to her question about her cat. Defendant and his wife answered questions about the location of other firearms. About 20 minutes after the initial entry and the discovery and seizure of numerous weapons, defendant was allowed to dress and was then taken to the police car.
During the ensuing investigation, the photographed child‘s statement was taken, and a warrant was obtained for the search of defendant‘s residence for other pictures. When the officers executed the warrant, they did not find any other pictures but did find methamphetamine in the bedroom, the spare room and the garage shop. That evidence was the basis for defendant‘s unlawful possession conviction.
Defendant moved to suppress the fruits of the search of his car and all of the evidence seized pursuant to the search warrant that was based on that evidence, contending that it was “fruit of the poisonous tree.” He also filed a demurrer, contending that
“(1) A person commits the crime of dealing in depictions of a child‘s sexual conduct if the person knowingly:
“(a) Develops, duplicates, publishes, prints, disseminates, exchanges, displays, finances, attempts to finance, or sells any photographs or other visual recording that depicts a child under 18 years of age in an act of sexually explicit conduct.”
“(1) A person commits the crime of using a child in a display of sexually explicit conduct if the person employs, authorizes, permits, compels or induces a child under 18 years of age to participate or engage in sexually explicit conduct for any person to observe or to record in a photograph or other visual recording.”
“‘Sexually explicit conduct’ means actual or simulated * * * (6) Lewd exhibition of genitals or anus.” (Emphasis supplied.)
We consider state constitutional questions before reaching federal questions. State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983). Defendant‘s primary argument is that the phrase “lewd exhibition” is unconstitutionally vague. Although the indictment charging defendant with violating
To withstand a vagueness challenge, the terms of a criminal statute “must be sufficiently explicit to inform those who are subject to it of [sic] what conduct on their part will render them liable in penalties.” State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985); State v. Knobel, 97 Or App 559, 563, 777 P2d 985, rev den 309 Or 522 (1989). Terms need not be defined so precisely that, in every instance, a person can predict that a specific act or course of conduсt will fall within the statute‘s prohibitions. State v. Graves, supra, 299 Or at 195; State v. Hendrix, 107 Or App 734, 741, 813 P2d 1115 (1991). A person need only be able to have “a reasonable degree of common understanding” of what is forbidden by the statute. Cascade Fireworks v. State of Oregon, 86 Or App 355, 358, 738 P2d 1013 (1987).
When reviewing an assertion of vagueness, it is this court‘s duty to construe the statute to salvage its constitutionality, if possible. State v. Cantwell, 66 Or App 848, 853, 676 P2d 353, rev den 297 Or 124 (1984). We start from the premise that, “in performing its law-making role, the legislature intends to act within constitutional bounds.” State v. Cornell/Pinnel, 304 Or 27, 31, 741 P2d 501 (1987). Although
Recourse to a dictionary also serves to inform a person of the meaning of “lewd.” Although the various dictionary definitions may not be identical, they contain sufficient common elements that indicate with reasonable certainty the nature and character of the conduct forbidden by
In Palm Gardens, Inc. v. OLCC, 15 Or App 20, 31, 514 P2d 888 (1973), we held that the term “lewd,”
“through its long use in the criminal law, * * * indicates with sufficient specificity the proscribed conduct so that men of ordinary understanding can govern their activities, and, consequently it is not unconstitutionally vague.”
Defendant also contends that
“is not vague, or need not be. Its vice is not failure to communicate. Its vice may be clarity. For a law is overbroad to the extent that it announces a prohibition that reaches conduct which may not be prohibited.” State v. Blocker, 291 Or 255, 261, 630 P2d 824 (1981).
Because we have determined that the phrase “lewd exhibition” is not unconstitutionally vague, and because defendant has failed to demonstrate any other way in which
For the same reasons,
With respeсt to all of the charges, defendant assigns error to the court‘s denial of his motion to suppress. In denying the motion, the court concluded that neither defendant nor his wife voluntarily consented to the search of the
Defendant contends, first, that any authority to search the car given by him or his wife was preceded by police illegality in failing to advise them of their rights and in seizing a police scanner without a warrant. Although those facts do not necessitate suppression of the evidence obtained in the ensuing search, they are relevant to a determination of whether the consents were voluntary. State v. Kennedy, 290 Or 493, 624 P2d 99 (1981). The state has the burden of proving, by a рreponderance of the evidence, that the consents were voluntary. State v. Stevens, 311 Or 119, 137, 806 P2d 92 (1991);
The trial court found:
“The Court is satisfied that, you know, that this was a very coercive situation. There was the nature of the entry that had occurred, the fact that the entry and the individuals there were part of the police--the Sheriff‘s office tactical team. The-that they had seized the weapons in the spare bedroom without asking for any consent and the factor that the police were still obviously very concerned about their own safety and the location of any other weapons in the area.
“And as deputy Chilcote testified that Ms. Meyer would, appeared to be somewhat coward [sic] by the situation and Officer Stephens testified, you know, that she was rattled or unnerved, but seemed to settle down some later.
“I further find that at the time the discussion concerning *** the search of the Jeep occurred that she was still in handcuffs. Although she had been told that she was not going
to be arrested, there was no indication that she had had any prior experience with law enforcement officers that would allow a person to be in a more objective, or calmer situation when dealing with police officers and have some greater recognition of her—of the rights that she did have and the manner in which they could be enforced.
***
“And I‘m satisfied that she could very reasonably believe that if she did not consent that they were going to search the vehicle anyway. And, therefore, I am satisfied that Ms. Meyer‘s consent was *** more the product of that coercive, at most, fear and that it was not freely and voluntarily given and that the State cannot rely upon her consent for the search of that vehicle.”
Those findings are supported by the evidence, and we are bound by them. Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). The findings support the trial court‘s conclusion that the wife‘s consent to search was not freely and voluntarily given, with which we agree.
The officers did not ask defendant for his consent to search the car. The trial court found that Barr told defendant that his wife had given them permission to search for a weapon and that defendant responded by indicating where the weapon would be—under the front seat. The state argues that his failure to object to the search amounted to an implied consent. The trial court, however, found that defendant‘s response was based on the belief that his wife had already consented to the search and held that, because the state could not rely on her consent, it could not rely on defendant‘s response when he was told about it. We agree. State v. Freund, 102 Or App 647, 796 P2d 656 (1990). It also held that, because the police knew that defendant was an ex-convict, they could not have asked him about a gun in the car without first advising him of his rights, which they did not do until they were driving him to jail. The court was correct.
The state contends, nevertheless, that, even without consent, the search was justified as a safety measure. State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987). The trial court agreed. The state points out that defendant was in a police car next to defendant‘s car. However, he was handсuffed and at least one officer was with him. There is no evidence that he posed a threat to their safety. It also argues that defendant‘s wife might have gone for the gun after she was released and
A similar safety argument was made in State v. Jones, 103 Or App 316, 797 P2d 385 (1990). The defendant had been arrested on an outstanding warrant for driving while suspended. A search incident to the arrest produced a sawed-off rifle from defendant‘s pant leg and a metal Sucrets box from his pocket. In the box were razor blades and bundles of heroin and cocaine. The search of the box was held to be unlawful because, “once it was in [the officer‘s] possession, he no longer had reason to believe that it pоsed a threat to him.” 103 Or App at 319. Similarly in this case, the metal box could have been withheld from defendant and his wife if it was believed to contain the gun for which the officers were searching. Any threat that the box might have posed and, accordingly, any authority to act for officer safety, dissipated as soon as the box was in the control of the police.
Finally, the state contends, and the trial court held, that the search of the box was justified by probable cause and exigent circumstances. Although Barr had probable cause to believe that a pistol was in the car “somewhere,” there is no evidence that he had probable cause to believe that it was in the box. He testified that the box could have contained one. The state argues, however, that nothing in the record suggests that the weight of the box was inconsistent with its containing a gun. The burden was on the state to prove that the weight of the box gave the officer probable cause to believe that there was a gun in it. Furthermore, once it was seized,
Reversed and remanded for new trials.
DURHAM, J., concurring in part, dissenting in part.
I concur in the majority‘s disposition of the issue regarding the motion to suppress. However, I disagree with the majority‘s decision to reverse the trial court‘s order overruling defendant‘s demurrer to the two indictments. Because defendant should not be retried under those indictments, I dissent.
The indictments charged defendant with violating
“‘Sexually explicit conduct’ means actual or simulated:
*****
“(f) Lewd exhibition of the genitals or anus.”
However, the state contends that
The majority opinion is notable for its failure to follow over a decade of decisions from the Oregon Supreme Court requiring that we follow a precise analytical framework in assessing the constitutionality of a statute challenged under
A law that does not fall within an historical exception must be analyzed to determine whether the focus of it, as written, is on an identifiable, serious and imminent effect or harm that may be forbidden, rather than on communication itself. See Oregon State Police Assn. v. State of Oregon, supra, 308 Or at 536. If the statutе identifies in its text the actual harm it forbids, rather than prohibiting the use of words,
If a statute is directed only against causing the forbidden effects, a person accused of causing those effects by language or gestures could assert either that the law is unconstitutional as applied to his particular expression or that it is unconstitutionally vague, i.e., that it is drawn in terms that fail to give notice to potential defendants of the conduct that is prohibited and delegates uncontrolled discretion to the judge or jury to punish or withhold punishment. See State v. Moyle, supra, 299 Or at 706.
Defendant‘s contention that the statutes violate
“[p]roscribing the free depiction of nudity by photographs also violates Defendant‘s Article I, Section 8 rights under the Oregon Constitution.”
On appeal, he again asserts his claims that “the statutes from which the indictments were drawn are unconstitutionally both vague and overbroad and flatly violative of Oregon‘s Article I, section 8.” The majority cannot evade the required methodology by claiming that defendant failed to invoke his rights under
“Before we address defendants’ claims of overbreadth and vagueness we must consider first whether this law could be enacted at all in light of [Article I, section 8].”
The majority should apply, not ignore, the required method of analysis.
I turn to the merits.
“(1) A person commits the crime of dealing in depictions of sexual conduct involving a child if the person knowingly:
“(a) Develops, duplicates, publishes, prints, disseminates, exchanges, displays, finances, attempts to finance, or sells any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child *** ”
Under the State v. Robertson methodology,
“A person commits the crime of using a child in a display of sexually explicit conduct if the person employs, authorizes, permits, compels or induces a child to participate or engage in sexually explicit conduct for any person to observe or to recоrd in a photograph, motion picture, videotape or other visual recording.”
Although the legislature can reasonably regulate the nuisance aspect of adult sexually explicit photography and video recordings in the interest of children, it cannot do so by restricting the speech aspect of those activities. City of Portland v. Tidyman, supra, 306 Or at 193. (Jones, J., specially concurring). This statute forbids using children in sexually explicit conduct but only if the activity is connected to the creation or observation of a visual recording. It does not forbid an identifiable effect without restricting communication itself. Oregon State Police Assn. v. State of Oregon,
Even if the challenged statutes could be viewed as restrictions on a forbidden effect that make no reference to expression, they are unconstitutionally vague because they regulate communication only if it is “lewd.” See State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985), which holds that vague criminal laws offend
In State v. Henry, 78 Or App 392, 717 P2d 189 (1986), aff‘d on other grounds, 302 Or 510, 732 P2d 9 (1987), this court held that a statute that forbade distribution of “obscene” materials was unconstitutionally vague. Our opinion, with which the Supreme Court expressly did not disagree, 302 Or at 513, said:
“Because
ORS 167.087(2) must be used by judges, juries and potential defendants to assess the criminality of particular conduct, we hold that its definitions are not sufficiently precise to determine whether particular sexually explicit material is legally obscene. It is not acceptable, as a matter of state constitutional law, that the precise course of the line dividing obscene expression from protected expression be uncertain and that a person who chooses to disseminate sexually explicit materials must bear the risk of that uncertainty. The constitutional right to communicate freely on ‘any subject whatever’ guaranteed by Article I, section 8, requires more than the statute provides by way of guidance. A person who trades in sexually explicit materials cannot discern that his wares are legally obscene under the statute; a trial judge is left with no legal standard to apply; and jurors are required to determine what is or is not obscene on the basis of their personal ideas of contemporary state standards.” 78 Or App at 405.
“[T]he fatal vagueness in the statute is its reference to
ORS 167.087(2)(b) and (c) , which provide that a matter is obscene if, taken as a whole, the average person applying contemporary state standards would find the work appeals to the prurient interest in sex and it lacks serious literary, artistic, political or scientific value. Those definitions are an unconstitutional delegation of legislative power to a judge or jury, permitting a judge or jury to decide what the law will be, hinging on a case-by-case adjudication. In a law censoring speech such an indeterminate test is intolerable. State v. Henry, 302 Or 510, 513, 732 P2d 9 (1987).”
State v. Henry observed that the term “lewd” has functioned as a synonym for the vague term “obscene:”
“The term ‘obscene’ simply functioned as a condemnatory term declaring words, pictures, ideas or conduct as improper by definition, whatever may, from time to time, be placed within the definition, e.g., ‘blasphemous,’ ‘profane,’ ‘immoral,’ ‘depraved,’ ‘corrupt,’ ‘lewd,’ ‘lascivious,’ ‘impure’ and ‘hard-core pornography.’ ” 302 Or at 520. (Emphasis supplied.)
State v. Ray and State v. Henry control our analysis of the term “lewd.” That indeterminate epithet forbids no specific conduct. It permits а judge and jury to determine what the law will be on a case-by-case basis. That is not acceptable when constitutionally protected freedom of expression hangs in the balance.
The majority relies on two of our cases and a host of dictionary definitions for its conclusion that “lewd” is not unconstitutionally vague. The variety of the dictionary definitions demonstrates that the meaning of “lewd” is subjective and far from unmistakable. We should not attempt to contrive a definition for an amorphous term in a criminal statute that impinges on expression. Policymaking of that kind is the legislature‘s task.
The short answer to the majority‘s citation of Palm Gardens, Inc. v. OLCC, 15 Or App 20, 514 P2d 888 (1973), rev
Defendant‘s demurrer should have been sustained in CA A61964 and CA A61965. Accordingly, I dissent from the majority‘s ruling on the demurrer.