Lead Opinion
In this сonsolidated criminal case, defendant challenges the trial court’s decision to strike his motion to suppress and its subsequent entry of judgments revoking his probation and convicting him of felon in possession of a firearm, ORS 166.270, unlawful manufacture of a destructive device, ORS 166.384, and unlawful possession of methamphetamine, ORS 475.894. The trial court struck defendant’s motion to suppress on the ground that the motion failed to “adequately appris[e] the Court as to what the issues are,” and, therefore, failed to comply with Uniform Trial Court Rule (UTCR) 4.060(l).
Defendant was arrested and indicted for, among other things, felon in possession of a firearm, unlawful manufacture of a destructive device, and unlawful possession of methamphetamine. He had previously been convicted of felon in possession, and was on probation for that conviction at the time of his arrest. Defendant filed a pretrial motion to suppress evidence. In his motion to suppress, defendant moved, pursuant to Article I, section 9, for an order suppressing “the stop and seizure of the defendant, search of defendant’s residence and personal room, and the seizure of any and all evidence obtained as a result therefrom, including the firearms and explosive device, and all oral derivative evidence.” Citing State v. Miller,
In a brief in supрort of his motion to suppress, defendant discussed UTCR 4.060, Miller, and related cases at length. It was his position that his motion complied with the rule and that, in view of the rule and applicable case law, “the burden of production shifts to the state upon a claim that the search was warrantless, and the defendant’s motion must be granted unless and until the state produces evidence and argument to overcome the per se unreasonable search against which the defendant has constitutional protections.”
At a pretrial scheduling hearing, defendant’s counsel discussed scheduling for the suppression motion. The following exchange ensued:
“THE COURT: Is this one of those motions where you didn’t file the affidavit, all that stuff? Didn’t comply with the [.] TCRs?
“[COUNSEL]: It’s hard to say. I believe I am complying with [.] TCR.
“THE COURT: So this is one of those motions. I think your answer to my question is, yes, it is one of those. I just want to make sure, so I get a good idea of which judge I need to send it to * * * to make sure it’s dismissed without even being heard [.] ”
At a later hearing relating to the motion to suppress, the court observed that the state had not moved to strike and it appeared that the state did not intend to file such a motion. However, the court, on its own motion, struck defendant’s motion, stating that, “as far as the Court is concerned, what you filed in this case is not sufficient.”
Thereafter, as noted, defendant wаs convicted of felon in possession, unlawful manufacture of a destructive device, and unlawful possession of methamphetamine. In addition, the court revoked defendant’s probation on his existing felon-in-possession conviction, based on the finding that defendant had “violated the terms and conditions of his probation by committing new crimes (in [the consolidated case,] C140104CR).”
On appeal, defendant asserts that the court erred in striking the motion to suppress. We review the trial court’s ruling in this case for legal error. See State v. Roth,
UTCR 4.060(1) provides:
“All motions to suppress evidence:
“(a) must cite any constitutional provision, statute, rule, case, or other authority upon which it is based; and
“(b) must include in the motion document the moving party’s brief, which must sufficiently apprise the court and the adverse party of the arguments relied upon.”
As noted, defendant asserts that his motion satisfied the requirements of that rule and was “sufficient under Miller and this court’s decisions.” The state responds that the motion was insufficient to frame the issues in the case. We conclude that defendant has the better argument: The motion satisfied the requirements of the UTCR and was sufficient to require shifting the burden to the state to demonstrate the legality of the warrantless search.
We begin by observing that, in our view, the requirements of UTCR 4.060(1) are
That understanding is consistent with the purposes that are to be served by a defendant’s motion to suppress. As we have explained, “[a] written motion to suppress ‘serves dual functions [:] [i]t frames the issues that the court will be required to decide, and it notifies the state of the contentions that it must be prepared to address at the hearing on the motion.’” State v. Parnell,
It is undisputed that, “[u]nder Article I, section 9, warrantless entries and searches of premises are per se unreasonable unless falling within one of the few ‘specifically established and well-delineated exceptions’ to the warrant requirement.” State v. Baker,
In Miller, the Oregon Supreme Court considered circumstances similar to those presented in this case. There, the trial court had denied the defendant’s motion to suppress on the ground that the motion failed to conform with a local court rule that required that a motion to suppress be “accompanied by an affidavit or affidavits on behalf of the defendant setting forth аll facts within his knowledge upon which he intends to rely in support of the motion.”
Here, as required by UTCR 4.060(l)(a), defendant’s motion cited authority on which defendant relied, specifically, Article I, section 9, and Miller. It apprised the court and the state that defendant challenged specific searches and seizures: the state’s “stop and seizure of the defendant,” and the state’s “search of the defendant’s residence and personal room.”
Reversed and remanded.
Notes
Pursuant to UTCR 4.060(1):
“All motions to suppress evidence:
“(a) must cite any constitutional provision, statute, rule, case, or other authority upon which it is based; and
“(b) must include in the motion document the moving party’s brief, which must sufficiently apprise the court and the adverse party of the arguments relied upon.”
Article I, section 9, provides, in part, that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.”
We acknowledge that there could be cases in which the materials before the court at the time the supрression motion is filed would mean that averments like these would not adequately “frame [] the issues that the court will be required to decide.” Parnell,
We note that the state asserts that, even if defendant’s motion was sufficient to proceed, he is entitled only “to reversal of his convictions and remand for the trial court to hold a suppression hearing, with a new trial to be held only if it grants suppression.” We decline the state’s invitation to specifically limit the remand in this case. Under the circumstances, we conclude that it is appropriate to leave it up to the trial court to determine, after considering defendant’s motion to suppress, whether a new trial is required or appropriate. See State v. Baughman,
As noted, the judgment revoking defendant’s probatiоn was based on the finding that defendant had “violated the terms and conditions of his probation by committing new crimes (in [the consolidated case,] C140104CR).” Thus, it is undisputed that, if defendant’s convictions are reversed and remanded, the probation revocation judgment should be reversed and remanded as well.
Dissenting Opinion
dissenting.
In State v. Miller,
In this case, as in Miller, defense counsel filed a motion stating that “defendant was subject to a search and seizure without a warrant.” Counsel added: “Warrantlеss searches and seizures are per se unreasonable and the state has the burden of proving otherwise.”
In my view, however, the majority opinion is not so circumscribed. It does not merely apply Miller’s holding regarding the level of factual detail that may be required in a motion to suppress. Instead, the majority appears to suggest that, as long as a motion to suppress includes an assertion that the defendant has been subjected to a warrantless search and seizure, a trial court may not require any further explanation of the defendant’s argument, even if the court justifiably concludes that the motion does not “sufficiently
Like the trial court in this case, I do not read Miller that broadly. Miller dealt with a defendant’s burden of coming forward with facts to support a motion to suppress—it did not hold that a defendant could simply invoke the phrase “warrantless search and seizure” and thereby be relieved of any further obligation to give the state and trial court notice of the contentions being raised. Furthermore, the majority’s suggestion that requiring such notice is constitutionally impermissible will unnecessarily hamper courts in their efforts to manage their dockets and address meritorious motions to suppress, while inevitably lowering the quality of representation that some defendants receive. Thus, even though I agree that, in some instances, a motion that merely states that the defendant has been subjected to a warrantless search will marginally satisfy the requirements of UTCR 4.060, I do not agree that the trial court erred in concluding that defendant’s motion failed to do so here. Accordingly, I must respectfully dissent.
To better understand why I do not believe that it was error to strike defendant’s motion to suppress, it is helpful to review how the issue developed in the trial court. The first judge to address defendant’s motion observed that it was not accompanied by an “affidavit, all that stuff,” and that, in his view, it therefore did not comply with the Uniform Trial Court Rules. That judge set it for hearing before a second judge, with the expectation that defendant’s motion would be “dismissed without even being heard.”
At the ensuing hearing, however, the deputy district attorney assigned to defendant’s case did not ask the court to deny defendant’s motion without a hearing. Instead, she provided the court with the following background:
“And, Your Honor, regarding the Motion to Suppress *** it does not specify with particularity what [defense counsel] is going to be contesting. He and I have had several conversations about this issue. I let him know that I need to know for purposes of court efficiency and for preparation which points in which he will be contesting. And he has indicated to me that he is going to be contesting the initial entry by the officer into the apartment and then the entry into the defendant’s bedroom for a search. So I told him that if he’s going to commit to those two points of entry—I’m sorry, those two issues as to Motion to Suppress, that I can now prepare myself for the motion, and I would be ready to proceed on that. So, with those comments in mind, we are ready to proceed on the Motion to Suppress regarding what [defense counsel] has told me in the past, which is the entry into the apartment, and then later on the entry into [defendant’s] bedroom.”
(Emphases added.) Thus, although defendant’s written motion contended that he had been “subject to a search and seizure without a warrant” (emphasis added), counsel had, before the hearing began, explained to the state—but not to the court—that, in fact, he was contending that multiple unlawful searches had occurred. Moreover, defense counsel continued at the hearing to clarify the intended scope of his motion:
“And if I just might be a little more clear about that. There were multiple officers who entered the apartment, and so technically each of them—of their entries into the apartment, as well as, yes, definitely the entry into the defendant’s bedroom.”3
In other words, even though defense counsel had notified the state that he would be contending that more than one act constituted an unlawful search, his comments at the hearing suggested that he had not yet fully
“So, [defense counsel], I’m sure you’re aware that the Court has had conversations about the Motion to Suppress that you have or have not filed in this case. This is an interesting turn of events in the sense that at least yоu and the State have had conversations about what your particular issues are. So, it sounds like the State is not going to strike or move to strike, but, frankly, as far as the Court is concerned, what you filed in this case is not sufficient.
“As to what is required under the UTCRs, for purposes of the brief, and adequately apprising the Court as to what the issues are, given what is now transpiring, frankly, I’m not quite sure what the Court’s going to do as far as what you filed in this case. I have read your eight-page memo as to why you don’t think you need to file anything further. Frankly, I’ve also read State v. Miller. I disagree with you as to what Miller says.
“So, I’m curious as to why, if you were willing to give the State information about what your issues are with the search, why you didn’t tell the Court what the issues were.”
(Emphasis added.)
The trial court’s uncertainty “as to what the issues [were]” is not at all surprising. Defendant’s motion sought an order
“suppressing the warrantless search and seizure of the defendant: the stop and seizure of the defendant, search of the defendant’s residence and personal room, and the seizure of any and all evidence obtained as a result therefrom, including the firearms and explosive device, and all oral derivative evidence.”
From the exchange at the hearing, it is evident that neither the state nor the court understood from defendant’s written motion to suppress what exactly he was contesting. True, the motion made it clear that defendant contendеd that there had been a search for which there was no warrant, but how many searches? Of what? Or of whom? The state, at least, was able to learn from defense counsel that defendant was contending that at least two distinct searches had taken place—-one when the first officer entered his apartment, and another upon the entry into his bedroom—but the trial court, of course, was not privy to that conversation until the prosecutor related it to the court.
Thus, before commencing the hearing, the trial court could reasonably have had in mind the following questions, among others:
• Is the “search of the defendant’s residence and persоnal room” a single search, requiring only a single justification, or multiple searches, each requiring its own justification?
• Is the phrase “search of the defendant’s residence and personal room” intended to describe in greater detail “the search and seizure of the defendant” (emphasis added), or is defendant contending that there was a search of his person in addition to the search(es) of his home?
• Is the language following the colon in defendant’s motion intended to further describe the “warrant-less search and seizure of the defendant,” and, if so, what does defendant mean when he uses “stop and seizure” to describe a search?
• If the “stop and seizure of the defendant” is intended to identify an event distinct from any search and seizure, does defendant contend that warrantless stops, like warrantless searches, are presumptively invalid, and, if so, what authority does defendant rely on for that proposition?
• Assuming that defendant is, in fact, challenging a temporary detention (the “stop and seizure”), what conduct does he contend constituted a stop?
In my view, a motion to suppress that, on its face, raises at least that many questions does not “sufficiently apprise the court and the adverse party of the arguments relied upon.”
In Miller, the trial court denied the defendant’s motion to suppress because “(1) it was unsupported by an affidavit sufficient to apprise the court and the state of the facts on which defendant relied and (2) it alleged ‘conclusory legal theories unsupported by facts.’”
In reversing the triаl court, the Supreme Court acknowledged the state’s argument that, under LCCC Rule 7.015, a defendant was required to submit an affidavit setting forth “all facts within his knowledge upon which he intends to rely in support” of his motion to suppress. Miller,
Several points stand out in Miller. One is that its focus is on the factual sufficiency of a motion to suppress the fruits of a single warrantless search—it does not say that a trial court could not require greater specificity if, for example, the defendant intended to argue that more than one search occurred or that the search exceeded its lawful intensity; in such a case, it appears a trial court could require the defendant to provide more. Id. (stating that other facts are immaterial unless the defendant intends to rely on them in support of his motion).
Another notable point is that, because Miller focuses on the defendant’s factual allegations, that decision provides little guidance regarding the requirement, under LCCC Rule 7.015, that the defendant’s brief “be adequate reasonably to apprise the court and the [state] of the *** arguments and authorities rеlied upon.” In this case, the trial court evidently relied on the corresponding language in UTCR 4.060(l)(b) when it struck defendant’s motion.
The final salient point about Miller is that it cites with approval—and quotes at considerable length—our decision in State v. Johnson/Imel,
Indeed, given the prosecution’s willingness to go forward with the motion hearing in this case, the only undue burden here was on the trial court and its docket. In addition to having to speculate as to what defendant’s contentions might be—with no opportunity to review those issues in advance of the hearing—the trial court was at the mercy of the state and its willingnеss to proceed. That is, the prosecutor indicated that, based on her conversation with defense counsel, she felt that she was prepared to respond to his contentions. But, given the evolving nature of defense counsel’s motion, the court could reasonably have foreseen a request by the state to continue the hearing to allow it a meaningful opportunity to address some new issue that emerged midway through the proceeding, a request that the trial court could not reasonably deny. The resulting delays and needless consumption of judicial resources are readily imagined. In my opinion, neither Miller, nor any other authority, rеquires trial courts to cede control of their dockets in that way.
Finally, I recognize that one could argue that, because defendant’s motion was sufficient to challenge “a” search on the grounds that it had been warrantless, the trial court erred in striking defendant’s motion in its entirety. See Miller,
For the foregoing reasons, I respectfully dissent.
Other than citing Miller in support of that proposition, the only statement of authority in defendant’s motion is a single line: “Authority: Oregon Constitution Art. [I] sec. 9.” Presumably this is intended to comply with the requirement under UTCR 4.060(l)(a) that all motions to suppress “cite any constitutional provision * * * or other authority upon which it is based!.] ” See State v. Jacinto-Leiva,
In Miller, the defendant’s assertion that the challenged search had been conducted without a warrant was stated in an affidavit, as LCCC Rule 7.015 contemplated. Under UTCR 4.060, however, there is no specific requirement that factual assertions be submitted in any particular form and, for purposes of this opinion, I assume that the assertions of defendant’s motion satisfy the same purpose that the defense’s affidavit did in Miller.
On appeal, defendant explains that officers arrived at his home in response to a 9-1-1 call that he had made after his roommate suffered a drug overdose; that another acquaintance showed thе first officer in and led him to defendant’s bedroom where he was administering CPR to his roommate; that other officers and medical professionals also arrived; and that one of those other officers told defendant that he was investigating the overdose and obtained defendant’s consent to search his bedroom, leading to the discovery of evidence of illegal possession of firearms, explosives, and drugs.
As noted above, in advising defense counsel that his motion was not sufficient, the trial court cited the UTCRs and stated that, “for purposes of the brief, and adequately apprising the Court as to what the issues are,” what was filed was “not sufficient.”
The Suрreme Court also quoted our suggestion that the degree of specificity required is at least as great as in an objection raised in the course of trial:
‘“At least as much specificity should be required in a pretrial objection to the admissibility of evidence, i.e., a motion to suppress, as is required in an oral objection made during the course of a trial. In fact, even more specificity could reasonably be required because the pretrial objection can be researched and written under relatively calm circumstances, as distinguished from an extemporaneous objection made in the heat of trial. We merely point out, however, that broadly worded and vague objections are inappropriate in either context.’”
Miller,