Opinion
84-0973; CA A36777
Argued and submitted May 19, 1986.
Reversed and remanded November 12, 1986, reconsideration denied January 16, petition for review allowed February 3, 1987 ( 302 Or. 594). See later issue Oregon Reports
Appeal from the Circuit Court, Washington County, Alan C. Bonebrake, Judge.
Stephen F. Peifer, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Raymond F. Thomas, Portland, argued the cause for respondent. With him on the brief was Royce, Swanson Thomas, Portland.
Before Warden, Presiding Judge, and Van Hoomissen and Young, Judges.
VAN HOOMISSEN, J.
Reversed and remanded.
This case presents a question of first impression under Article I, section 9, of the Oregon Constitution: Does a thief have "standing," that is, a constitutionally protected interest, in stolen property kept in the premises of a third party so that the thief may object to a search of those premises? The answer is, No!
Defendant was charged with theft from his employer, Tower Records. The state appeals a trial court's pretrial order suppressing evidence. ORS 138.060(3). The issue is whether the use of the evidence at trial would violate defendant's rights under Article I, section 9, of the Oregon Constitution. The trial court concluded that it would. We disagree and, therefore, reverse.
Article I, section 9, of the Oregon Constitution provides, in part:
"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * *." (Emphasis supplied.)
On May 2, 1984, while lawfully in the home of Charles and Lori Best, the police saw marijuana in plain view. Later, they obtained a warrant to search the home for drug-related evidence. While executing that warrant, the police saw video tapes and electronic equipment that they believed were stolen property. On May 5, the police obtained another warrant to search the Bests' home, this time for stolen property. While executing that warrant, they seized the video tapes and electronic equipment that they had seen on May 2. Tower Records' video department manager identified the stolen property. The manager and the assistant manager, spoke with defendant on May 15. The assistant manager summarized defendant's statement to them:
"He basically just said that he had taken all of this stuff [from Tower Records] to use as collateral on a cash loan from Charley Best because he needed the cash because his wife's disability hadn't come through, and that once the loan was paid off, the disability came through and the loan was paid off, that he would return the merchandise."
Defendant was not in the Bests' home when it was searched or when the stolen property was seized by the police.
Defendant's motion to suppress was based solely on Article I, section 9. He concedes that he lacked standing to challenge the disputed evidence under federal authorities. See Rawlings v. Kentucky, 448 U.S. 98, 100 S Ct 2556, 65 L Ed 2d 633 (1980); United States v. Payner, 447 U.S. 727, 100 S Ct 2439, 65 L Ed 2d 468 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S Ct 421, 58 L Ed 2d 387 (1978); Jones v. United States, 362 U.S. 257, 80 S Ct 725, 4 L Ed 2d 697 (1960).
The state uses the word "standing" as shorthand for a constitutionally protected interest, and so will we in this case.
The state filed a memorandum opposing defendant's motion on its merits and, additionally, it challenged his "standing" to complain about any illegality at the Bests' home. The state does not dispute the trial court's ruling that the May 2 search of the Bests' home was illegal and that it tainted the May 5 search warrant. It argues only that defendant had no "standing" under Article I, section 9, to contest any police action in the Bests' home.
The trial court found:
"1. That defendant gave Charles and Lori Best stolen property from Tower Records as collateral for a loan;
"2. That the aforementioned property was seized pursuant to a search warrant executed on May 5, 1984 at the Best home;
"3. That the May 5 warrant was based upon information obtained during the execution of the search warrant at the Best home on May 2, 1984;
"4. That the May 2, 1984 warrant is invalid." (Emphasis supplied.)
The court concluded, in part:
"[1] That the defendant Tanner has an expectation of privacy in the Best residence by virtue of the fact that the home was the repository of defendant's collateral;
"2. That defendant has an expectation of privacy in the property seized because, although stolen, he had pledged it as collateral;
"3. That as a result, defendant Tanner has standing to object to the search of the Best residence;
"4. That the property seized from the Best home on May 5, 1984 is ordered suppressed." (Emphasis supplied.)
The trial court's finding that the property in question was, in fact, stolen is supported by evidence in the record, and we are bound by it. Ball v. Gladden, 250 Or. 485, 487-88, 443 P.2d 621 (1968); State v. Johnson/Imel, 16 Or. App. 560, 571, 519 P.2d 1053, rev den (1974). Also, defendant concedes that he had no interest in the Bests' home, other than his purported interest in the stolen property that was stored there. Defendant's claim for suppression of the evidence fails on the merits if his rights were not violated in the state's acquisition of the evidence. See State v. McMurphy, 291 Or. 782, 785-86, 635 P.2d 372 (1981).
The property was stolen. He had no rights in it. He was a thief. See Restatement (Second) Torts, § 895, illustration 6; cf State v. Normile, 74 Or. App. 545, 702 P.2d 1160, rev den 300 Or. 162 (1985) (defendant had rights in a rental car held after the rental term expired, but his rights were inferior to those of the police acting on behalf of the true owner).
We reject defendant's rationale. No public purpose could conceivably be served by extending the protection of Article I, section 9, to a thief in the enjoyment of stolen property. Defendant cites no authority for the proposition that a thief has a protected interest in stolen property, and our research has found none. He concedes that federal authority is directly to the contrary. The few state cases cited by the state generally support the state's position that a thief has no protected interest in stolen property. The trial court erred in suppressing the evidence.
See State v. Emery, 41 Or. App. 35, 39, 597 P.2d 375 (1979); People v. Tellez, 161 Cal.App. 3rd 1067, 208 Cal Rptr 105 (1984); Sussman v. Commonwealth, 610 S.W.2d 608 (Ky 1980); Graham v. State, 47 Mo App 287, 421 A.2d 1385 (1980); Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, cert den 385 U.S. 942 (1966); Wilder v. State, 583 S.W.2d 349 (Tex Crim App 1979), vacated on other grounds 453 U.S. 902, on remand 623 S.W.2d 650 (1981); see also Mahar v. State, 137 Ga. 116, 223 S.E.2d 204 (1975); State v. Hamm, 348 A.2d 268 (Me 1975); State v. Boutot, 325 A.2d 34 (Me 1974); Duncan v. State, 27 Md. App. 302, 340 A.2d 722 (1975); Palmer v. State, 14 Md. App. 159, 286 A.2d 572 (1972); State v. Perkins, 543 S.W.2d 805 (Mo 1976); State v. May, 613 S.W.2d 877 (Mo App 1981); State v. McFarland, 195 Neb. 394, 238 N.W.2d 237 (1976).
If, as appellant argues, the expectation of privacy test also applies under Article I, section 9, see State v. Westlund, 75 Or. App. 43, 51 n 9, 705 P.2d 208, rev allowed 300 Or. 332 (1985), we agree with LaFave:
" '[A] thief has no legitimate expectation of privacy in stolen property, as such' and that means that the thief cannot establish standing solely by virtue of his relationship to stolen property, but would have to establish that the police actually interfered with his person or with a place as to which he had a reasonable expectation of privacy." 3 LaFave, Search and Seizure, § 11.3, supp 319 (1978 and supp 1986).
Because defendant had no property or privacy interest in the Bests' home, and because the video tapes and electronic equipment were in that home, the police did not violate his reasonable expectation of privacy. He does not suggest any other test under Article I, section 9, that would give him "standing."
Reversed and remanded.