*1 reversed, Argued Appeals suppression order of and submitted March Court proceedings further reinstated and remanded to circuit court for circuit court November OREGON, OF STATE Review, Respondent TANNER, WILLIAM CALVIN Petitioner on Review. S33523)
(TC A36777; 84-0973; CA SC P2d 757 Thomas, Portland, peti- cause for Raymond argued F. & Royce, him on the brief was Swanson tioner on review. With Thomas, Portland. Salem, Peifer, Attorney General, F. Assistant
Stephen *2 for on review. argued respondent the cause LENT, J. J.,
Campbell, opinion. concurred and filed an Gillette, J., part, specially part concurred in concurred in opinion. and filed an
Peterson, J., and filed an opinion. C. dissented Jones, J., dissented and filed an opinion.
LENT, J.
The issue is whether one who entrusts an effect to Oregon I, Article section another has under against an unlawful search that discovers the Constitution effect.1We hold one does. tapes equipment video from his
Defendant took employer’s place pledged them Charles and of business acting officers, collateral for a loan. Police under Lori Best as an invalid during warrant, these items a search of discovered discovery led to defendant’s indict- the Best residence. ment for theft. relying
Defendant, 9, of the on Article suppress Oregon Constitution, moved to evidence uncovered granted by ing motion, search. The circuit court conclud- privacy expectation “an in the Best that defendant had fact the home was the residence repository virtue of the appeal collateral.” On the state’s
of defendant’s Appeals suppression order, Court of reversed. from the App Tanner, P2d 47 That court State v. held that a “thief has no prop- protected interest in stolen erty.” petition App Or at 300. allowed defendant’s We *3 applicability 9, I, section review to consider the of Article persons. effects entrusted to other
I. presented make this In order to clear issue pre- emphasize case, several issues that are not we note and sented. the search
First, there is no issue of the lawfulness of court ruled that the warrant of the Best residence. The circuit invalid, and the under which the search was conducted was appeal. challenged ruling What the state state has not that nonetheless that the evidence obtained should does contend is ground the unlawful search admissible on the that have been I, 9, of defendant. the Article section did not violate 1 9, I, provides: Article section persons, right people be secure in their “No law shall violate seizure; effects, search,
houses, papers,
against
no war-
unreasonable
or
and
and
affirmation,
cause,
oath,
supported by
upon probable
and
or
rant shall issue but
searched,
person
thing
particularly describing
place
to be
and the
or
to be
seized.”
315
rule,
exclusionary
Amendment
the Fourth
Unlike
years
recent
on deterrence
predicated in
has been
which
Leon,
897,
see,
States v.
468 US
misconduct,
e.g., United
(1984),
exclusionary
3405,
2d
905-08, 104
82 L Ed
677
S Ct
right of a crimi
personal
on the
predicated
rule
section 9 is
search,
“unreasonable
free from an
nal defendant
to be
Davis,
227, 231-37,
Second, there is no issue of standing defendant’s challenge the unlawful search of the Best A residence. crimi- nal always defendant has standing challenge the admission the state. State v. of evidence introduced McMurphy, 782, 785, (1981). Or P2d The question whether a personal defendant’s were violated an unlawful search or seizure is often mislabeled a question of “standing,” question goes but the to the suppress. merits of motion to The term “standing” only should be used in the narrow sense of capacity legal to make a challenge.
Third, although
Appeals’
the Court of
decision was
based on its conclusion that “a thief
protected
has no
in
property,”
App
stolen
82 Or
the character
given by
Bests,
effects
defendant
to the
particular
and in
they
stolen,
whether
were
is irrelevant
in this instance.
Searches and seizures are separate
calling
separate
acts
Owens,
See State v.
analysis.
196, 205-07,
302 Or
II. general issue that must be addressed in this case The person entrustment of an effect to another is is whether the sufficient to establish an Article against right an example, that the effect. For are the unlawful search uncovers rights guest valuables to the hotel of a hotel who entrusts unlawfully break into the hotel’s safe violated if the person rights are Are the of a who where the valuables stored? hunting rifle if the rifle is dis loans a to another violated during person’s auto covered an unlawful search of the other general mobile? If the issue cannot be decided in the affirmative, there no basis for defendant’s is contention specific his section 9 of this case. were violated circumstances Only cases decided under section two 9 have touched upon Laundy, supra, case, this issue. In the first State v. syndicalism being defendant was convicted of criminal (IWW). member of the Industrial Workers of the World One assignments appeal of his of error on was the trial court’s petition among evidence, denial of his for the certain return of songbook which was an IWW taken from the desk of one Myers. Myers’ large desk was across room from the defen- organization separate desk, dant’s from the disposing in an area subleased organization for whom defendant worked. In aspect assignment error, of this of the defendant’s any unlawfully stated, the court “If articles were taken from Myers’ complain desk, the defendant cannot for the reason itself, recognized protects Even as to the effect this court has that section 9 See, Owens, e.g., possessory property State v. interests in contraband. 302 Or Elkins, (1986); 279, 290, 422 (1966). State v. P2d 524 P2d 250 There is extent, any, constitutionally protected if no occasion here to decide to what interests note, however, property may in stolen differ from those in contraband. We do that the Appeals’ troubling procedural Court of formulation of the issue raises a number of Among questions parties difficulties. this court submitted to the were: analysis Appeals’] “Does the mean that the trial court must determine [Court guilty whether the defendant of theft before the court can rule on the defen- suppress prosecution alleges dant’s motion to items of evidence whenever adequate hearing find all defendant stole the items? Must the court conduct a not, proven beyond proved doubt? If what must be elements of theft a reasonable suppress ground evidence on the that defen-
before the trial court can decline to object dant cannot to an unlawful seizure of the evidence?” any person Myers that if the was violated it was that of person, that of some other third and not that of the defen- Or at 498. dant.” 103 opinion does not state whether the defendant songbook Myers any
had entrusted the or had other connec- trial, songbook tion with it. At the state had introduced the evidence, espoused by into in order to establish the doctrines IWW, not to show that the defendant was a member. songbook a connection between the and the defen- Absent dant, Laundy dispositive is not of the issue before us. Hoover,
More relevant is State 347 P2d Hoover, police stopped officers an automobile *6 report occupants driven the defendant after a that the had threatened someone with a the gun. During stop, one of to an officer that the defendant had occupants whispered wife, sitting to his who was on it. The officer given gun car, the woman aside and seized pushed then reached into the subsequently charged with a gun. being The defendant was firearm, he moved for the return possession felon in of a and gun ground on the that it was obtained suppression and of by the state in violation of section 9. This court stated: having
“The revolver was concealed
the device of
Mrs.
Thus,
easily
might
defendant’s
sit on it.
we
Hoover
wife]
[the
search,
dispose
by ruling
if in
of the case
fact
unlawful,
person
a
of Mrs. Hoover’s
and not of the
was search
rights
be her
that were
automobile. Were this the case would
standing make a
violated and the defendant would have no
* * * However,
Laundy, supra.
complaint. State v.
since the
think
the search was
lying
revolverwas
on the car seat we
party
equally
the car and of Mrs. Hoover. Neither
a search of
argument
just suggested,and we
has raised the line of
we have
search as of the automobile alone.”
will treat the
the court’s statement was dictum
Although
Both
inter-
possessory
are limited to
that section 9 interests
notion
Laundy,
In
thing
in a
seized.
a
searched or
place
ests in
only
infringed upon Myers’
have
Myers’ desk could
search of
possessory
to have had a
only Myers was shown
rights because
in Hoover the
Similarly,
at 498.
in the desk. 103 Or
interest
her
only
infringed upon
have
of
Hoover could
search Mrs.
possessory
a
interest
have had
only
because
she could
rights
the automobile
But
search of
at 296-97.
body.
her
219 Or
because, rights
upon the defendant’s
infringed
could have
bailee,
out, he was a
point
pains
went to some
the court
sub-
be “an interest of sufficient
the court deemed to
which
By
at
Id.
296.
protection.”
stance to fall within constitutional
upon
infringed
search could not have
implication,
thus
occupant
if
had been a mere
defendant’s
he
possessory
a
interest
the automobile.
lacked
Hoover, however,
Laundy
Since the decisions
recognized that
interests
frequently
section
this court has
places
things.
possessory
limited to
interests
are not
288-92,
Elkins,
at
court noted three
supra,
State v.
protected by
property,
9:
and “some
privacy,
interests
nebulous,
right
protected
from
poorly-defined
sort of
person,”
citing
forceable violations of the
undignified,
72 Ct
96 L Ed
California,
latter Rochin v.
US
S
(1952).
opinion
property
The court’s
concerned with
was
seizures,
court
against
interests
unlawful
but the
identified
privacy
principal
protected against
as the
unlawful
searches, stating
privacy
“recently
that the
had
been
subject
291. This was
great emphasis.”
probably
ongoing
reference to the then
transformation
analysis
an
jurisprudence
Fourth Amendment
search
from
protection
possessory
places
based on the
interests in
interests,
analysis
privacy
on the
a trans
protection
based
later
formation that was to culminate a few months
in Katz
507, 19
2d
United
S Ct
L Ed
*7
(2d
2.1,
1987);
LaFave,
1
and Seizure
at 302-05
ed
See
Search
§
Amendment,
Amsterdam,
on the Fourth
58 Minn
Perspectives
4
349, 356-58,
L Rev
381-83
4
Katz,
emphasis
protection
possessory
in
on
interests
Prior to
the Court’s
the
of
v.
places
between Goldman United
as
had led to absurd distinctions such
that
Virginia,
993, 86 L
v.
Clinton
and
US
S Ct
Ed 2d 1322
377
Goldman,
(1964): In
the
held
use of an
84 S Ct
320
Subsequent opinions of this have court continued to recognize privacy of the protected by one interests section See, Owens, e.g., 9. v. supra, 206; Louis, State 302 Or v. at State 57, 60-61, 296 Or 672 P2d (1983); State v. Blackburn/ Barber, 28, 34, (1973). Owens, P2d a search was explicitly defined in terms privacy “A interests: ‘search’ occurs person’s when a privacy interests are invaded.” 302 Or at 206. We therefore do not regard prior this court’s state Laundy ments in and helpful Hoover as resolving issue before us.5
The extent
to which
by
actions
state officials are
governed by
by
section 9
general privacy
is defined
inter-
people”
ests of “the
than
privacy
rather
interests of
particular
individuals.6
telephone conversations,
Houses and
for example, are
“private,”
considered
and for that
reason
police
when
officers enter
or eavesdrop
telephone
houses
on
they
conversations
do
conformity
must
so in
with section 9.
Section 9
presents
thus
with a
web
rules that are
protect
privacy
meant to
people,”
interests of “the
and the
police violate
9 and
if
only they
section
if
violate
rules.
these
It
otherwise,
cannot be
be expected
cannot
to act
interests,
on
privacy
they
individual
ordinarily
which
have no
of ascertaining.
question
means
The
privacy rights
of whose
logically separate
have been violated is
question
from the
whether section 9 has been violated.
blush,
I,
9, might
support
At first
the text of Article
section
seem to
the conclu
protects only possessory
Appeals empha
sion that section 9
interests.
Court
The
protects
right
people
persons,
sized that section 9
“the
of the
to be secure in their
houses, papers,
Tanner,
App
and
v.
effects.” State
Or
298 n
person
her)
houses, papers,
person,
be
secure in his
“the
and effects” or
persons, houses,
people
papers,
Compare
be secure
their own
and effects.”
* * *
quartered
any house,
Article
“No
shall
28:
soldier
without the
**
owner,
added.)
(Emphasis
consent of the
Once it is determined that the state
security
houses,
effects,”
people’s “persons,
papers,
has violated the
question
infringed by
remains
been
whose
have
that violation. The text is not
helpful
score.
Owens,
privacy
protected by
Interests other than
are
section 9. See State v.
206-07;
supra,
Elkins, supra,
n
n
State
321 search a warrantless correct, then, say that It is not A’s privacy violated it section 9 because A’s house violated of that say accurate be more It would in the house. interests it violated 9 because section A’s house violated of the search have violated police that the Given of the house. privacy that arises whether house, then question of the privacy If the interests. anyone’s privacy upon infringed has violation violated abandoned, may have police to be proves house rights. 9 anyone’s section violating section 9 without to be a uniformly deemed in a house Residence privacy violation that the concluding sufficient basis interests, but there privacy residents’ of the house violated privacy with persons the class assume that reason to is no B to If A invites to residents. house is limited interests in a dinner, in on the burst police A’s house and dinner at infringed have police that ludicrous to contend would be privacy a interest upon A but not a interest of upon privacy dinner 11.3(b) guest that a LaFave, (arguing supra, B. 4 § Cf. a zone home to constitute reasonably the host’s expect could unreasonable would be free from guest where the privacy hand, interference). B’s interest On the other governmental of A. as extensive as that of the house would not be privacy B an inter- necessarily give An invitation to dinner would also that if B were may the basement. It privacy est in the interest. privacy recognizable B not have a trespasser, a would id.Cf. has no B, guest, as a dinner
It is true that else) in, but in (or if A invites them anyone exclude the 9 at all. A section violated section that case the have not state; it is not an against interest is an interest privacy Blackburn/Barber, See State v. parties. against private interest 444-45, Hilton, 249 P 34; State v. supra, house does not access to the (1926). That A controls state against interest privacy asserting B from preclude of the house.7 privacy if it violates privacy place precludes a argument of control over that the absence States’ place largely Court of the United is based See, Rawlings e.g., v. Ken analysis. privacy” “expectation of Fourth Amendment employed tucky, 98, 105, 100 2556, 65 This court L Ed 2d 633 S Ct Holt, Amendment, State v. Or analysis decided under the Fourth a case privacy adopted analyzing interests. it for but has never P2d 854 “expectations” analyzing privacy is that difficulty in terms of interests with
One if, any Should the result be invit- different instead of Bing dinner, B premises? A allows to store effects on A’s both cases A has allowed B to make of A’s privacy use house. The nature what is from shielded unlawful searches *9 of no significance. Again, is B’s section 9 interests be will not if A violated the the allows to enter house and discover effects, the but is house, that because A controls access to the not B because not have a privacy against does interest the state. And again, only B’s 9 interests are as extensive A’s explicit implied permission as to store the effect. B’s privacy by interests would not be an illegal violated search of A’s house to the extent that the search did not the uncover permission. LaFave, effects stored with A’s 4 supra, § Cf. 11.3(c) (arguing that one who entrusts effects to another has a “justified expectation privacy items”). vis-a-vis those argues
The state person that a who entrusts effects to another can privacy against discovery have no interest the by the effects designates par- state unless the entrustor a place kept. designa- ticular where the effects are But to be particular place of a tion has to the no relevance entrustor’s privacy interests B asks A an against state. If to store drawer, effect A’s bedroom closet and A it in a desk stores seriously argued cannot that privacy against B’s interest any may the state is less substantial. The state no more invade may A’s desk than it invade A’s bedroom closet. The state perhaps by failing specific fears that a designate location B storage, gain interest, but, will somehow a greater privacy as above, By A, noted this is not so. an has entrusting effect to B made use of much only privacy protects so as the effect from expectation. by right, Rights issue is one not under section 9 are defined not government. privacy expects by privacy expect one but one has a from by private That access to an area is controlled makes it no with someone else less by respect entry government. to an unlawful Professor Amsterdam As wrote subjective privacy expectations rights, government if were determinative of “the subjective privacy person’s expectation merely by announcing could diminish each half-hourly being on television 1984 was a decade were advanced and that we Amsterdam, being placed comprehensive forthwith under all electronic surveillance.” Amendment, Perspectives (1974). on the Fourth 58 Minn L Rev difficulty “expectations” approach Another somewhat related with that it is easily privacy secrecy. person guests private too confuses with A invites 100 to a who party private reasonably expect at a residence cannot much about the residence to may private, persons secret. is no less Uninvited not remain enter, The residence however. may except properly enter under a and the state not without consent authorized exigent warrant or under circumstances. house unlawfully enter a in A’s room the state. If the stored, B is but do not discover which effect entrusted harmed. effect, interests have been privacy B’s III. an effect then, the entrustment general, privacy establish
another
is sufficient
an unlawful
through
the effect is discovered
violated when
question
privacy
defendant had
search. The final
is whether
this
the circumstances of
case.
interest under
gave
found that defendant
video
The circuit court
security
Lori
for a
tapes
to Charles and
Best
equipment
facts, there is
might
loan.
we
have found different
Though
this
we are bound
support
finding,
record to
so
evidence
Gladden,
Or
by it
in Ball v.
under the
announced
Warner,
(1968).
487-88,
Had circuit court that defendant given effects, might a sufficient away that have been no concluding longer privacy basis that defendant had discovery effects, that could violated 116-17, LaFave, 11.3(c), 4 at 305-06 nn but a supra, & § cf. person as collateral is in much the same pledges who effects pur- position one who entrusts effects another for other poses. The state contends that defendant had no immediate equipment, access to the and but that fact alone tapes does preclude continuing defendant’s entrustment possibility as there that defendant long effects. So remained effects, sufficiently would reclaim the the entrustment was illegal search of the Best resi- viable to demonstrate that the 9. privacy dence violated his interests under section reversed; is Appeals The decision of the Court is The suppression order of circuit court reinstated. case is further proceedings. remanded to the circuit court for J., CAMPBELL, concurring. Davis, opinion. In State v. majority
I concur with the
opinion by
I
then
227,
joined
295
I agree still the dictum pages 230-37 of the opinion Davis unnecessary. However, was it was a correct statement of the law and for that reason I have no hesitation in joining the majority in this case.
GILLETTE, J., concurring part, specially con- curring in part. join
I in the court’s disposition of this case. I write separately only to disassociate myself—for the time being—from the “personal right” v. “deterrent” struggle into which this case has developed.
As to
struggle,
I choose to remain a noncomba-
tant. Justice Jones makes some good points when
questions
he
the doctrinal antecedents of this Court’s embarkation on the
“personal
right” journey in State v. McMurphy,
291 Or
But such an argument,
taken,
even if well
does noth-
ing
explain why
concept
of a “personal right” enforcea-
*11
ble under Oregon
I,
Constitution Article
section
is not valid.
example,
For
explain
it does not
why
specific
language * *
viz.,
section,
right
“the
the people to be secure
(emphasis supplied) is not significant. Compare, e.g., State v.
Henry,
If I compelled choose, were I probably should approach majority, to take the McMurphy/Davis choose approach at least over the deterrent of the dissent. I am more by the of the former. The vacillation persuaded logic years retraction in recent in the United States its inex jurisprudence, leading Court’s Fourth Amendment exclusionary rule, see plicable “good exception faith” Leon, States v. S L Ed 2d United US Ct me satisfies that the “deterrence” rationale does I, adequately not vindicate the interests to which Article sec 9, speaks. tion compelled
But I am not competing to choose between juncture. place, doctrines this In the first another theory—that it is the court’s independent duty to enforce the constitution, admitting and that evidence improperly seized separate would be a constitutional violation the court— thought. aside, that, deserves some That it seems to me even rationale, under its deterrence the dissent agree should on the outcome of this case. placed This defendant had for goods safekeeping had, someone else’s home. That house purposes, search and seizure storage same status as a vault, airport luggage locker or rented storage facility. “Title” to the property placed any such location is irrelevant. Defendant protected would be if the property placed even he there was illicit drugs which no one could have title. the
When entered the house in this case with- legal authority, out the resulting search was no more permissi- ble than would have illegal been a similar search of the other places just Suppression required mentioned. should be under only Article even if our purpose were deterren- ce—magistrates need to be deterred from issuing invalid war- just rants as much as officers need to be deterred from making invalid searches.
I concur.
PETERSON, J.,C. dissenting. Jones, join J.,
I in the dissent of but wish to make these specific comments.
The exclusionary rule is a court-made sanction stem-
from the
ming
persons
to be free from unreasonable
scope
searches and seizures. The
of the rule should
limited
purpose.
its
*12
The
of the rule is to deter unreasonable
searches and seizures. “The rule is calculated to prevent, not
repair.”
206, 217,
to
v.
Elkins
United
US
80 S Ct
(1960).
1437,
I
not sure that
correct in
saying
am
majority’s approach
will
the reason for an
“[viscerate]
suggestions
rule” or “will lead to
that the exclu-
sionary
operate
‘adequate’
rule should not
when there are
concern,
Except
alternatives.”
JONES,
J., dissenting.
question
I dissent. This is a case which raises the
whether,
9,
Oregon
under Article
section
Constitu-
tion, an
proprietary rights
individual’s
under section 9 extend
an individual has stolen and
to
objects
pledged
then
another
a loan.
secure
property
question
was stolen
defendant
employer
pledged
party
from his
and
to a third
to secure a
employer’s property
during
loan. The
was recovered
a raid of
home,
persons’
property
pledged.
the third
where the
had been
home,
Defendant did not own that
he did not live at that
home,
present
and he was not
at that home when it was
pledged property
searched or when the
was seized
been
police.
suppressed.
The evidence seized should
have
suppress
solely
Defendant’s motion to
was based
Article
and he concedes that he lacked a constitu-
tionally protected
property
in the
under
federal
See,
e.g., Rawlings Kentucky,
authorities.
448 US
S
(1980);
Illinois,
L Ed
Rakas v.
Ct
2d 633
hand,
99 S Ct
The trial court were both oral written. from the bench the suppress hearing, After the motion to following findings court made the and conclusions: all, already I spoken, guess, as to a version of “First of I’ve pass Scheeland was I all came to when Officer how believe this call, telephone I there was a to the house. We know summoned believe, relayed him that dispatch. Information was He went there and shooting at the residence. there had been opened it I There was no answer. He knocked on the door. is, again who he was and my recollection he announced believe inside, to the effect that ‘I’ve there was a voice from words been shot.’ communication, course, in. the radio
“He rushed Of from *13 believe that someone had been shot and that he had reason to by been confirmed the voice. had Best, Mr. been shot. He Mr.
“He found who had found Best, believe, in I on the floor. He found Mrs. Best seated a chair, obviously bleeding from a wound.
“He brief with her and fell had some word she from chair. hand, quickly through in he went the house. one “Gun room, bedroom, I referred to as the southwest he saw believe plain marijuana, quantity, in view a substantial and the Court plain by in believes it was view and it was seen him in that search, suspects initial search. I’ll call it a search for and victims. particular entry premises permissible
“That into the any in Oregon and not violation of statute in or the U.S. plain in Constitution and what he saw was view. “Thereafter, other officers arrived at the scene. * * * attempted investigation
What started out as an murder, assault—analyzing samples, thing, blood that sort of became, period metamorphosis frankly, through a and went contraband, property, a search for and was in fact an stolen impermissible crime scene search.
“Thereafter, warrant, obtained, search warrant was first Unfortunately, probable search cause was used in warrant. warrant; by obtaining that search is statements made Vallery investigating given information to Officer from other by illegal officers was tainted search that had been con- observed, and, therefore, seized, ducted the evidence that was whatever, suppressed. first search is to be as a result of that necessarily “In that the second warrant is tied to the first * * * seized, —anything evidence that was obtained that was suppressed. as a result of the second search is also to be <<* * * * * standing, remaining
“The issue has to do with whether or complain this, not Mr. Tanner can be heard to about what I’ve illegal determined be an pretty ques- search and it’s a close really been—apparently tion that hasn’t hasn’t been decided here in Oregon. the State of my analysis
“I can recall I questioning earlier and think in Ms. when any Burris she said that she didn’t believe he had all, ground complain I through analysis kind of went that I ago again did here a few moments if that’s one has property gives person and sells or it per- to another and that in son has it his house and it’s contraband and it’s discovered by search, an unlawful person, then the first giver so to speak, grounds complain has no later on. hand, opposite
“On the other is also obvious and that if is one has contraband their own house and it’s discovered then, obviously, you as a result of unlawful search do. “Here we prop- have sort of a mixture involved. We have erty purpose and it’s I analysis believable and find for the this employer case that it was taken Mr. Tanner from his you go say impermissible taking, can even far so was him, Bests, not to be allowed. It given was taken to the permanently, securing but for the an indebtedness and that’s what I’ve heard.
“We paid debt, have to believe that had he not then they keep would have been allowed to it and so on. So respect, property. he has some akin to an owner by right He’s taken it not given of the owner and it to another *14 other, creditor, going with the idea that the to be able to keep paid. certainly it if the debt isn’t He has in an interest property. replac- He in getting has an interest it back and ing it so that he—so that won’t be discovered.
“You would have to believe under those circumstances continuing property that he has a interest and he has a continuing privacy; interest its that is that the Bests aren’t going everybody in to blab to town that he’s taken it from his employer they security and that have it and it’s for a loan or they going put are big sign it out on a sidewalk with a saying, holding security property ‘We are this as for an indebt- edness.’ obviously that; privacy yet
“He has of he private protecting privacy has a interest or an interest particular property of that and a belief that the Bests’ resi- protected. dence where it’s stored is also to be very said, artfully rough analysis my “It’s not but it’s a way expectation I saying of think he does have an of privacy residence, place, both in the Best because it’s a it’s a depository property of that he still maintains some interest in. by voluntary
“It’s been left there at his will his act and he obviously expectation privacy has an interest and insofar as personal property, cassettes, both recording equipment place stored, and the where it’s the Best residence.
“Anyway, I think he standing. may does have It be a close question, but I analysis think under an given that would be Supreme Court, they our would find that he does have the privacy property.” added.) insofar (Emphasis Subsequently, the court made findings written as follows: “1. gave That defendant Charles and Lori Best stolen
property from loan; Tower Records as collateral for a “2. That property aforementioned pur- was seized 5,1984 suant to a search May warrant executed on at the Best home; May “3. That the upon warrant was based information during obtained the execution of the search warrant at the May 2,1984; Best home on 2,1984 May
“4. That the warrant is invalid.” concluding: That the defendant expectation Tanner has an “[1.]
privacy in the Best residence virtue of the fact that home was repository collateral; of defendant’s “2. That expectation defendant has privacy in the property because, although stolen, seized pledged he had it as collateral; result,
“3. That as a defendant Tanner has standing to object to the residence; search of the Best “4. property That the seized from the May Best home on 5,1984 suppressed.” is ordered (Emphasis added.)
The majority opinion contends that:
“Unlike the
rule,
Fourth
Amendment
which
predicated
has been
years
in recent
on deterrence of
misconduct, see, e.g.,
Leon,
United States v.
905-
S Ct
L Ed 2d 677
predicated
section 9 is
personal right
on the
of a criminal
defendant to
search,
seizure,’
be free from an ‘unreasonable
*15
Davis,
State v.
227, 231-35,
(1984);
295 Or
State
expressed
such
U. S.
Court cases as
(1914)).
232 US
S Ct
lenge the unlawful search of the Best residence. always challenge standing has the admission of defendant McMurphy, 291 the state. State v. Or evidence introduced 782, 785, question P2d The whether a defen- rights search personal were violated an unlawful dant’s question ‘standing,’ but the is often mislabeled a seizure suppress. The term question goes to the merits of a motion to capacity only in sénse of ‘standing’ should be used the narrow legal challenge.” Id. to make a
concluding:
“* * *
Appeals’
was based
[Although the Court of
decision
in
protected
thief has no
on its conclusion that ‘a
App
effects
property,’ 82 Or
at
the character of the
stolen
Bests,
particular
whether
given by
to the
defendant
* * *”
stolen,
Id.
they
irrelevant in this instance.
were
is
majority,
asserting
rights
protect
personal
of an
rule is to
holding
attempts
parallel
between this
accused,
to find
attempt
Supreme
Court. This
the United States
decisions of
McMurphy,
predicated
pure
v.
dictum State
citing
court, in
United
where this
785,
States
* * *”
omitted.)
(Footnote
(1980), tracing its antecedents.
*16
Davis,
then cites State v.
The majority
(1983),
666 P2d
proposition.
for the same
Again,
the
majority opinion in Davis starts out
an attempt
with
to trace
purposes
the
for the federal exclusionary
expressed
rule as
in
Weeks v. United
US
34 S Ct
L Ed
(1914), claiming
that
the
exclusionary
for the
rule as
expressed in Weeks
protect
was to
some personal
right and
Laundy,
case of State v.
early
that our
204 P
There is Weeks that language no the rule is predicated personal on the right of a criminal defendant to be free from an unreasonable search and seizure. In Weeks petitioned defendant had for the return of papers seized in violation of the Fourth Amendment. The central holding the case was upon the defendant’s motion the trial court should have returned all wrongfully seized If papers. Weeks decision is to be seen as a discussion of an indi- how rights vidual’s can protected by courts, remedy by created this decision should be limited to the Supreme Court’s order to return the wrongfully seized evidence.
On the question of the defendant’s motion to exclude trial, evidence from the the Weeks court had little say. only oblique reference to an exclusionary rule comes when the points Court out that:
«* * * tendency of those who execute the criminal laws country of the to obtain conviction means of unlawful * * * seizures should find no judgments sanction of the courts charged which are support at all times with the of the people Constitution and to which of all conditions have a appeal for the maintenance of such fundamental rights. “* * * 4th Amendment was intended to secure the [T]he person property
citizen in against unlawful invasion of sanctity law, of his acting home officers of the under legislative judicial protection equally sanction. This government extended to the action of the and officers of the acting proceedings law under it. To such sanction would be to by judicial affirm neglect, open decision a manifest if not an defiance, prohibitions Constitution, of the of the' intended for protection people against of the such unauthorized Weeks, US
action.” at 394. origins I find the in this discussion of duty people by refusing protect the courts’ acts, separate question unlawful and not to sanction protecting an individual’s concerning before the Weeks court rights by returning wrongfully property. seized Oregon have interpretations
Prior Weeks in no language conclusions. There is in State v. offered different Laundy, predicates exclusionary rule of Article supra, that Indeed, interpretation on a different Weeks. court, Weeks, Laundy citing holds that whenever a defendant * * * unlawfully seized “he is discovers that evidence is return directing to an order of the court entitled at time *17 order, Laundy, Or at 494. such an property.” of the While a have the same effect as vindicating rights, might defendant’s returning wrongfully excluding without contemporary courts’ evidence, than such an order has different seized an exclu- holding establishing does the alternative Weeks sanctioning or sionary prevent rule as a means to the courts’ unlawful behavior. encouraging rule in exclusionary announcement of the The first necessary guaran- of the recognized part it was Weeks Nevertheless, the exclusion- tees of the Fourth Amendment. of the fully formed from the mind ary spring rule did not only it principles, other constitutional Court. As with most fully and on a defined form it was defined gradually took development culmination this in different cases. The tested rationale for the present refinement is the deterrent Court, of initial through years The deci- exclusionary rule. sions, recognize that each individual violation has come to to fail made ineffective because constitutional must be vio- encouraging the effect of further to do so would have lations. States early opinions did the United
In none of theory rights” discovered “personal Court find the Davis, of these McMurphy any nor did by this court for the any “deterrence” rationale expressly cases set forth exclusionary As Yale Kamisar observes: rule. thirty-five following little years
“In Weeks the Court had say about the rationale and abso- lutely nothing say about the relative merits exclu- sionary enforcing rule and alternative methods fourth only amendment. Often Court remarked that the evidence be violating rights had to excluded because was obtained secured to the defendant under the fifth fourth amend- and/or or ments because use of the evidence or would violate one other both these amendments. Sometimes Court simply acquired declared that a conviction based on evidence by a violation of the fourth amendment ‘cannot stand’ or that prosecution the use of such evidence in a criminal cannot ” Kamisar, system.’ ‘tolerated under our constitutional Does (Did) (Should) Exclusionary “Principled Rule Rest on a “Empirical Basis” Rather Than an Proposition16 Creighton (footnotes omitted). L Rev 601-02 theory so-called deterrence first surfaced on the Colorado, federal level L93 Ed 1782 Wolf summarized Weeks: where Justice Frankfurter first States, [supra], “In Weeks v. United this Court held that prosecution a federal the Fourth Amendment barred the through illegal use of evidence secured search and seizure. ruling This made was for the first time in 1914. It was not explicit requirements from derived of the Fourth Amend- ment; it was legislation expressing Congressional not based on policy in the enforcement of the Constitution. The decision * * *” judicial was a matter implication.
After summary, pro- this the Court declared that against tections unreasonable searches and seizures afforded by the Fourth Amendment extended to the were states Due Process Clause of the Fourteenth Amendment. The Court refused, however, to extend the rule to the states *18 as a part of the Due requirements Process of the Fourteenth Amendment. gives The of the Court into reasoning insight the development theory of the strengths deterrent and its over a rationale based rights: on individual jurisdictions
“The the Weeks doctrine rejected which have right protection. not left have without other means of Indeed, directly remedy exclusion of evidence is a which only upon protect person premises serves those whose cannot, something incriminating has been found. We there- fore, regard departure it as from basic standards to remand search, emerge those of who scathless from a to the remedies private protection discipline action such and as the internal police, eyes public may opinion, under of an alert
334 practice Granting that in the exclusion evidence afford. searches,
may way deterring unreasonable be an effective falling the minimal is for this Court to condemn as below not by Due Clausea State’s reliance standards assured Process which, enforced, consistently if upon would other methods *” * * equally Id. at 30-31. effective. Upon examination the Court determined that further did on the individual’s other remedies not serve to focusing public’s in the Fourth Amendment. Not protect deter, they did only remedies fail to also did such other protected the Fourth Amend- preserve the basic freedoms ment. 206, States, 217, 80 S
In v. United 364 US Ct Elkins (1960), 1437, 2d Justice Potter Stewart delivered 4 L Ed Court, rule is calcu opinion emphasizing “[t]he not to Its deter—to prevent, repair. lated to only in the respect guaranty for the constitutional compel way—by removing the incentive dis effectively available Ohio, Mapp landmark case of v. 367 US regard it.” (1961), Clark, speaking Justice S L Ed 2d 1081 815 Ct Court, the contradiction contained for the noted Wolf. rule has been consistent since Court noted that federal required of “This ever since federal law Weeks. Court has to that command which this Court a strict adherence officers clear, specific, constitutionally has held to be á safeguard judicially implied—deterrent if. required—even Fourth Amendment would upon insistence which the without ” (quoting Id. at 648 have been reduced to ‘form words.’ S Co. v. United Silverthorn Lumber (1920)). L Ed Ct inconsistency, Mapp Court over- of this
Because the exclusion- part apply which refused turned the Wolf grant hold is to ary rule to the states. “To otherwise enjoyment. Only reality privilege its but to withhold purpose recognized year last the Court itself for the con- compel respect ‘is to deter—to only effectively way—by in the available guaranty stitutional ” disregard (quoting it.’ Id. incentive to removing the Elkins). Ohio, Ct 20 L US 88 S Terry
Again, Court, for the spoke Warren Ed 2d 889 Chief Justice *19 stressing inception, excluding that since rule its the “[e]ver evidence seized in violation of Fourth Amendment has recognized been as a mode of principal discouraging lawless States, police conduct. See Weeks v. United [supra]. Thus its Id. thrust major is a deterrent one.” at 12. sure,
To be other reasons have been stated Supreme exclusionary rule, Court for the such as a reference Elkins protect “the of imperative judicial integrity,” namely, that the courts not “accomplices become the willful they disobedience of a uphold.” Constitution are sworn to v. McNabb United (quoting US at 318 US 345, 63 608, 87 (1942)).1 S Ct L Ed 819 None of these cases can be read to that suggest one of several purposes the exclu sionary rule predicated personal on a of a right criminal defendant from be free an unreasonable search seizure.
Indeed, the Court
explicitly
has
rejected
idea that
necessary
exclusion is
prevent further violations of an indi-
to.
Calandra,
In United
v.
vidual’s rights.
States
338, 354,
414 US
Ct
(1974),
94 S
view
operation
opportunity
of the exclu-
to benefit from the
dant’s
Supreme
sionary
Court refers to
rule,
United States
what the
“standing.”
Court
context that the
It was
this
piece of historical dictum
what is a small
in Salvucci offered
suggesting
remedy
rule is one form of
“[t]he
*20
337 however, rule, has ‘prime established that the purpose’ one, if not the sole ‘is to deter future con- unlawful ”). duct.’ majority
The vast
states
which have addressed
for the
rule have stated that
for the exclusionary
rationale
rule is to deter
miscon
See, e.g.,
State,
(Ala
v.
Taylor
1981);
duct.
S2d 881
399
State v.
578, 623
(1981);
State,
127 Ariz
Alfaro,
P2d 8
v.
Harrington
287
(1985);
Court,
Ark
697
899
Lockridge
Superior
SW2d
v.
3
Cal
474
Rptr
(1970);
3d
P2d
89 Cal
731
People v.
(Colo
Zindros,
Briggs,
1985);
338 courts, differ or some of these same courts at
Other
exclusionary
times,
rule serves
ent
have announced that the
personal
purposes,
additional
but not as
of a criminal
(Alaska 1986) (deter
Malkin,
v.
722 P2d
defendant. State
943
judicial integrity);
preservation
People Cahan,
rence and
v.
(deter
P2d
44 Cal 2d
905
and relieve the courts
conduct);
compelled
participate
illegal
being
from
in such
(1984) (has
Page,
P2d
State v. Le
102 Idaho
630
674
judicial integ
primary purposes
preserving
of deterrence and
(Iowa 1980) (to
rity);
Campbell,
State v.
Although
621, 629,
in State v.
Or
561 P2d
(1977),
the defendants
that the
argued
search and seizure
131.615,
was a violation of ORS
this court did not limit its
discussion of the
rule to the statute because
present
protect
“the
statute is to
interests of
protected by
the kinds which are
the Fourth Amendment
I,
the United States
Art.
Constitution and
[sec]
Oregon
only practical
Constitution. So far the
method which
protect rights
has been devised to
this kind is the exclusion
evidence which is the fruit of violation.”
deciding
defendant’s
under Article
Warner,
Constitution,
Oregon
this court in State v.
147, 166,
authority
These decisions from and from other courts across the nation demonstrate that rule is *23 properly explained preserve as a means to the freedoms guar- I, by anteed Article section it or removes because reduces to violate the restrictions of section 9. incentives It true that talk of some to encourages is deterrence empirical exclusionary think in terms of evaluations that the its suggests rule. To extent term deterrence that prove advocates must actual instances where the have a not conducted search or seizure because the evidence would excluded, is it unfortunate that this term has become exclusionary means of a rationale for the expressing short-cut depend empirical rule which does not on an demonstration of validity. Allowing unconstitutionally its seized evidence into ignore court would be an incentive for the the limita- tions of Article because it would tell them that practical these limitations have no effect.3 The exclusion of police. exclusionary this evidence is a disincentive to the The depend empirical proof prevents rule does not on that cer- tain Each types of behavior. act of exclusion is a reaffirmation and, of the limits which section 9 law imposes on enforcement such, as serves as a message future violations will be treated in the same manner. exclusionary preserves principles rule of sec- by inhibiting tendency
tion 9 of those who execute the “[t]he country by criminal laws of the to obtain conviction means of Weeks, unlawful seizures.” It designed 394. society’s by future violations of protect discouraging and I that an individual’s majority agree section 9. The protection by under section 9 deserve the courts of diligent However, exclusionary I feel that the rule has Oregon. because society, I independent purpose reject for the courts and for exclusionary position rule to a majority’s relegation ways personal as one of several that an individual can assert rights under section 9. majority as the has looked to the decisions
Insofar justify parallels the United States Court for rule, they I believe misread those cases. Oregon’s Kamisar, (Should) (Did) Exclusionary “Principled Rule Rest on a See Does “Empirical Proposition”?, Creighton L Rev Basis" Rather Than an
341. justification Oregon’s fashioning Further, new exclu- sionary majority rule, done a I believe that the has disservice diluting importance peo- rule its to the to the ple Oregon. justify attempting the conclusion that the exclu- rights, sionary protects personal major- a defendant’s language, being ity Weeks, contains relies which no such Laundy, only adopted this which a refer- court contains McMurphy Weeks, as the for the dicta found in ence to basis adopted theory Oregon’s in Davis. The whole exclu- sionary predicated personal right rule is somehow on a simply any Any opinion *24 defendant falls for lack of foundation. essentially on the merits of this case should be based on the theory exclusionary opposed per- deterrent of the rule as to a right. “personal pursue right” If a sonal the court wishes to justification, steps trap viscerating into the of the reason for exclusionary rights may rule. Personal be vindicated with state or federal civil tort actions. majority rights giving confuses the violation of operation exclusionary
rise the of the rule with the Certainly exclusionary operative of the rule. the rule becomes a violated, when designed defendant’s have been but it is not remedy as a defendant’s for that violation. If it is remedy easy suggest defendants, seen as a for it will too be society that because a defendant has other remedies can dis- pense exclusionary with the rule, inconvenience of the at least particular any provide in some case where it will not effective given for a relief defendant.4 preview arguments, suggestions Burger’s aFor of these see the Chief Justice Agents, in Bivens v. Six Unknown Named
dissent
91 Ct
L Ed
403 US
S
J.,
(Burger,
dissenting).
problems
suggestions
2d 619
C.
For the
with such
deterrent,
LaFave,
exclusionary
an affirmation of the value
rule as a
see
Search
(2d
1987).
and Seizure 31-43
ed
theory
suggested
proponents
Some recent critics of the deterrence
have
that its
See,
e.g., Morris,
actually
opponents
exclusionary
The Exclu-
are
secret
the
of
rule.
Rule,
Law,
sionary
Analysis
Deterrence and Posner's Economic
57 Wash L Rev
of
(1982); Kamisar, supra
n 2.
question
suggestion
I
the
that all
rationale seek to
advocates of
deterrence
Ohio,
example, Mapp
rule,
how,
exclusionary
weaken
I cannot
because
see
regarded
opposing
815 S Ct
The intent of Article and seizures are searches rights by ensuring vidual independent magistrate. of an prior approval to the subject intended, I am imply mean to that this result is I do not While rationalization of the exclusion- majority’s that the concerned rule suggestions ary rule will lead alternatives. “adequate” when there are operate should not purpose for “personal rights” reject majority’s I is, best, that a defendant exclusionary rule and conclude pur- for the when exclusion occurs beneficiary an incidental I have future violations. frequency deterring pose misin- majority’s question on the because dwelt in detail federal deci- parallel prior Oregon caselaw terpretation of validity question future courts to I do not wish sions. misreading it is now based on exclusionary rule because are at least prior these decisions decisions. Because previous majority to be interpretations, I take differing subject they read to be exam- which cases as illustrations using these oper- character of of the remedial ples ation. Pitt, in William the merits of this case.
I now turn to remarks, stated: oft-quoted his all bid defiance to may, cottage, in his poorest man “The shake; frail; may may be its roof the Crown. It
the force of enter; may it; may the rain through the storm may wind blow enter; may all his force enter; England King of but the the ruined tenement.”5 *25 the threshold of dares not cross in this people to equally applicable statement grand This they deterrence, language only are forced to use. they the because that is do this suggesting reality rule are to discard the In those who seek by raising remedy again merely easily discarded individual rule is Supreme Court States argument remedies which the United individual of alternative Ohio, experiences, practical supra. other courts rejected Mapp on their v. Based these acceptance the failure of rationale on of the deterrence rested their have also society’s rights protection free of unreason actually to be to serve as alternatives only practical been devised to method which has seizures. “So far able searches and fruit of which is the protect the evidence rights kind is the exclusion of of this 626, (1977); Valdez, 621, “[Ojther remedies P2d 1006 561 State v. violation.” provisions.” Peo compliance completely with the constitutional failed to secure have 905, Cahan, ple P2d 911 v. 44 Cal 2d 282 5 288) 1401-03, (Correspondence William Pitt Parliamentary History XV Vol Lasson, Development (as History Amendment to of the Fourth quoted and (1937)). Constitution 49-50 United States
343 action. governmental protected oppressive from being state not defen- case, third house was However, persons’ in this did not enter defendant’s “cottage,” “government” dant’s fact, property. did not own the premises and defendant found, property. stole the trial defendant judge “standing,” has as defined agree I that this defendant Along challenge this search and seizure. majority, precedent, e.g., from federal majority, depart I would with Kentucky, Rawlings supra, v. holding that where a defen- possession property claim to legitimate dant with some another, that defendant retains a property entrusts property. uncovers the an unlawful search which right against in this case demonstrate I dissent because facts in the any protected did have interest that defendant property If he had been the lawful owner of the things seized. persons, it to the third question, pledged but had bailed it or object illegal govern- have a agree I that he would Similarly, if proprietary mental interference with his interest. home, the kept property government he had stolen in his own circumstances, not, exigent could without a valid warrant or property enter home to for or seize the because of his search interest in his home. But the trial privacy proprietary his property court found that defendant had stolen the from his stored it employer pledged person it to a third who turn privacy no premises proprietary where defendant had right. property.
A-thief has
in stolen
privacy
no
Quinn,
v.
Williams
383, 393,
(1981);
State
Therefore, reject any majority I association with sum, property that a thief can steal which, public tells the and, in the money by placing it for employer, pledge from his to claim that his own party, hands of a third then be allowed state the have been violated. To personal property is to refute it. proposition