In this criminal case, defendant seeks review of his conviction for being a felon in possession of a firearm. ORS 166.270(1). He contends that the trial court erred in denying his motion to suppress evidence seized in a warrantless search of an automobile in which he was a passenger. The Court of Appeals affirmed.
State v. Tucker,
In this court, defendant argues that the trial court erred both on constitutional and statutory grounds. We resolve the case on the statutory ground, ORS 133.693(4). We hold that, under that statute, the state had the burden of proving the validity of the warrantless search. Because the state failed to meet that burden, we reverse and remand.
We take the following facts from the trial court’s findings and the record. Defendant was the sole passenger in an automobile involved in a single-automobile accident. The automobile rolled over, and the force of the accident scattered some of the contents of the automobile across the roadway. Defendant and the driver were taken to the hospital. The state trooper who investigated the accident and the tow truck driver who was to tow the automobile from the scene gathered up the scattered items and put them back in the automobile. The tow truck driver then towed the automobile to the tow truck driver’s house.
The trooper had reason to believe that defendant had identified himself falsely during the accident investigation. Without first requesting or obtaining a search warrant, the trooper chose to call the tow truck driver at home and to ask him to look through the papers and mail inside the automobile to help determine defendant’s identity. Although the tow truck driver was unable to find defendant’s name among the items in the automobile, the tow truck driver did find a gun in a camera case after opening the case to look for identifying items. The trooper eventually discovered defendant’s identity and the fact that defendant was a convicted felon. Ultimately, defendant was charged with, among other *88 things, being a felon in possession of a firearm. ORS 166.270(1).
Before trial, defendant moved to suppress evidence of the gun, contending that the search by the tow truck driver at the behest of the trooper violated Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution. 1 Responding to defendant’s motion, the state first argued that the search by the tow truck driver did not constitute state action. The state next argued that defendant had the burden of asserting a protected interest in the gun or the camera case, and that he had failed to meet that burden. The state argued that that was so because, under Article I, section 9, a court will suppress evidence obtained through an illegal search or seizure only if the actions of the police invade a constitutionally protected interest of a defendant. Finally, the state also argued that á passenger in an automobile has no protected privacy or property interest in the automobile or its contents. Defendant responded that he was not required to establish first that he had a protected interest in the gun, the camera case, or the automobile. In defendant’s view, the state bore the burden under ORS 133.693(4), quoted below, of proving that the warrantless search and seizure were valid. The trial court denied defendant’s motion to suppress and thereafter found defendant guilty of being a felon in possession of a firearm.
Defendant appealed to the Court of Appeals. In affirming the conviction, that court reasoned that, because defendant had not shown a protected interest in the automobile or its contents, the search did not violate his constitutional rights.
Tucker,
As noted, we need consider only defendant’s statutory argument.
See Leo v. Keisling,
“Where the motion to suppress challenges evidence seized as the result of a warrantless search, the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution.”
OEC 307 provides:
“(1) The burden of producing evidence as to a particular issue is on the party against whom a finding on the issue would be required in the absence of further evidence.
“(2) The burden of producing evidence as to a particular issue is initially on the party with the burden of persuasion as to that issue.”
In this case, the “particular issue” is the validity of the warrantless search. ORS 133.693(4) places the burden of proof as to that issue on the state. Under OEC 307(2), the state had the burden of producing evidence showing that the search was valid. If the state failed to produce such evidence, and no other evidence independently met the state’s burden, then OEC 307(1) requires the court to find against the state.
In this court, the state makes two arguments. First, the state argues that the tow truck driver’s search of the automobile was the act of a private individual and therefore did not implicate either ORS 133.693(4) or Article I, section 9, of the Oregon Constitution. It is true that Article I, section 9, prohibits only state action that infringes on a citizen’s constitutional rights.
See State v. Tanner,
*90 Here, the trooper asked the tow truck driver to look in the automobile to see if any paper or mail revealed defendant’s name. The ensuing search thus was not simply the independent volitional act of a private citizen. This court has not addressed previously when Article I, section 9, applies to a search by a private citizen. The answer is not difficult, however. We now hold that, if a state officer requests a private person to search a particular place or thing, and if that private person acts because of and within the scope of the state officer’s request, then Article I, section 9, will govern the search.
Under that standard, insofar as the evidence produced at the suppression hearing shows, the tow truck driver responded to the trooper’s request by searching the interior of the automobile. The tow truck driver acted within the scope of the trooper’s request when he looked into the camera case, because such a container reasonably could have held an identification card, papers, or mail. Therefore, we hold that Article I, section 9, applies to the tow truck driver’s search of the automobile. 2 It follows that the terms of ORS 133.693(4) apply to this case.
Second, the state argues that it met any burden that it had under ORS 133.693(4) by proving that the state did not invade any constitutionally protected interest of defendant. That is so, the state posits, because defendant failed to assert a protected interest in the gun or the camera case. The state’s argument misstates its statutory burden and misconstrues this court’s case law. In
State v. Morton,
As in Morton, here the state failed to prove that defendant lacked a protected interest in the camera case or gun. ORS 133.693(4). Defendant never had the burden of asserting an interest in the item that formed the basis of the criminal charge and that was derived from the warrantless search.
In sum, because the state failed to meet its burden of proving that the warrantless search was valid, defendant was entitled to a ruling that the search was illegal and that the gun discovered as a result of the search must be suppressed. The contrary ruling of the circuit court was error. Defendant’s conviction must be reversed.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Notes
Article I, section 9, of the Oregon Constitution, provides:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
The Fourth Amendment to the United States Constitution provides, in part:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated!. 1”
The state argues that a statement by the trial court that the tow track driver exceeded the scope of the trooper’s request when the tow truck driver searched the camera case is a finding of fact and, as such, we are bound by the statement.
See State v. Herrin,