State v. Barnum

902 P.2d 95, 136 Or. App. 167, 1995 Ore. App. LEXIS 1167

• Court: Court of Appeals of Oregon
• Decided: August 23, 1995
• Docket: 92 CR 0200; CA A79301
• Status: Published

Opinions

ARMSTRONG, J.

Defendant was indicted on two counts of first degree arson, four counts of first degree burglary and one count of second degree burglary. The state appeals from a pretrial order suppressing evidence seized pursuant to ten search warrants. We review for errors of law, ORS 138.220, and affirm.

In January 1991, defendant was arrested during a break-in at a doctor’s office. Defendant’s arrest caused police to reopen an earlier investigation that had involved a series of threatening phone calls and letters sent to one of the doctor’s employees and other letters forged on the doctor’s stationery. Based on their investigation, police believed that defendant was the person who had composed all of the letters.

In February 1991, police searched defendant’s home. They seized several legal files belonging to a local law office and a two-page letter that appeared to be handwritten by defendant. The police contacted the law firm, and it confirmed that the files had been stolen from its office along with some of its letterhead stationery. Two letters had been forged on the stationery.

Police officers sent the handwritten letter seized from defendant’s home to the Oregon State Crime Laboratory (the lab) for analysis to determine whether defendant had forged the two letters on the legal stationery and the two letters on the doctor’s stationery. The lab reported that the samples of defendant’s handwriting did not contain enough handwritten material to determine whether defendant had written the forged letters. The lab suggested that the police send additional samples of defendant’s handwriting for further examination.

In August 1991, defendant appeared in circuit court for a pretrial hearing on charges related to the break-in at the doctor’s office. Officers Grow and Runyon attended the hearing. They intended to arrest defendant on a charge of theft by receiving, based on the stolen legal files recovered from his home. During the hearing, the detectives observed defendant writing on several sheets of paper and in a small spiral notebook. He later placed the papers in two manila folders and the notebook in his shirt pocket. At the conclusion of the hearing, at the request of the prosecutor, the court ordered defendant to provide a handwriting exemplar.

As defendant was leaving the courtroom, the detectives approached him to escort him downstairs to the police station to provide the handwriting sample. Defendant refused. Runyon then arrested defendant on the charge of theft by receiving and seized the manila folders. As Runyon was handcuffing defendant, defendant motioned to his attorney to retrieve the notebook from his pocket. When the attorney tried to take the notebook, Grow seized it.

The officers briefly read the notebook and then sent it to the lab for comparison with the earlier letters. The examiner issued a report stating that the notebook had been examined and that, based on that examination, defendant was “not identified as writing the questioned documents.” After the notebook was returned to the officers, they read it at length and discovered facts that led them to procure and execute ten search warrants. The officers never sought nor obtained a warrant to read the notebook.

Defendant moved to suppress all evidence that resulted from the officers’ reading of the notebook. The trial court found that the officers had probable cause to believe that defendant’s papers and notebooks contained evidence of a crime and that exigent circumstances justified the officers’ seizure of the notebook. The court went on to find, however, that a “valid privacy interest still existed in the contents of the notebook,” and that the officers’ “detailed examination of the notebook after the seizure was improper without a search warrant.” Thus, the court granted defendant’s motion to suppress the contents of the notebook as well as all evidence derived from the contents.

On appeal, the state agrees with the trial court’s conclusion that the initial seizure of the notebook was lawful, but argues that the trial court erred in determining that the subsequent reading of it was improper. It contends that the officers were entitled to peruse briefly the contents of the notebook to look for appropriate handwriting samples. The state concludes that, “[biased on the information they lawfully observed in plain view during the initial examination, the police were entitled to scrutinize the entire contents of the notebook more closely at any time they wanted.”

Defendant argues that all reading of the notebook was unlawful. Additionally, as an alternative basis for affirming the suppression order, defendant argues that the initial seizure of the notebook was unlawful, because there were not exigent circumstances to justify the warrantless seizure. Because we determine that the officers’ conduct in reading the notebook to look for examples of defendant’s handwriting constituted an unlawful search, and therefore affirm the trial court’s suppression order, we need not address defendant’s contention that the seizure was unlawful.

Article I, section 9, of the Oregon Constitution provides:

“No law shall violate the right of the people to be secure in their person, 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.”

It provides safeguards against searches and seizures and, hence, protects both privacy and possessory interests. State v. Owens, 302 Or 196, 205, 729 P2d 524 (1986); State v. Binner, 131 Or App 677, 680, 886 P2d 1056 (1994). As a general rule, a warrantless search or seizure is per se unreasonable unless it falls within one of the limited exceptions to the warrant requirement. State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991); State v. Follett, 115 Or App 672, 675, 840 P2d 1298 (1992), rev den 317 Or 163 (1993).

We first address whether the initial opening of defendant’s notebook and the reading of its contents to look for handwriting samples was a “search” under the Oregon Constitution and, if it was, whether it was justified under one of the few, carefully circumscribed exceptions to the warrant requirement. Defendant argues that he had a valid privacy interest in the contents of his notebook and that this interest was invaded when the officers opened and read the notebook. The trial court agreed and determined that a “valid privacy interest still existed in the contents of the notebook.”

Under Article I, section 9, a search occurs when a government agent intrudes upon a person’s privacy interests. State v. Wacker, 317 Or 419, 425, 856 P2d 1029 (1993); State v. Rhodes, 315 Or 191, 196, 843 P2d 927 (1992); Owens, 302 Or at 206. Here, the officers’ actions constituted an intrusion. The officers opened the cover of the notebook, exposing the contents to an inspection that could not have been achieved without the intrusion. See Rhodes, 315 Or at 196-97 (opening car door from three to four inches open to completely open constituted a search). The question, then, is whether defendant had a privacy interest in the contents of the notebook.

The privacy protected by Article I, section 9, is “not the privacy one reasonably expects but the privacy to which one has aright.” State v. Campbell, 306 Or 157, 164, 759 P2d 1040 (1988).

“The privacy interests protected from unreasonable searches under Article I, section 9, are defined by an objective test of whether the government’s conduct ‘would significantly impair an individual’s interest in freedom from scrutiny, i.e., his privacy.’ ”

State v. Wacker, 317 Or at 425 (quoting State v. Dixson/Digby, 307 Or 195, 211, 766 P2d 1015 (1988)). If no privacy interest is affected, no search has occurred under Article I, section 9.

The state argues that reading the notebook to look for handwriting samples did not intrude upon a valid privacy interest defendant had in the notebook and, thus, was not a search. It contends that handwriting exemplars, like fingerprints and voice exemplars, are evidence of identity and, as such, do not involve a privacy interest. See State v. Fisher, 242 Or 419, 422, 410 P2d 216 (1966) (handwriting); State v. Davie, 56 Or App 507, 517 n 5, 642 P2d 680, rev den 293 Or 146 (1982) (voice).

The basis of its contention is that “evidence of identity is not testimonial or communicative” and does not implicate a privacy right. See Fisher, 242 Or at 422 (court unable to find reason to hold that “person whose handwriting has been secured for comparison has had his constitutional * * * privilege against self-incrimination invaded”). Thus, the state reasons that the compelled production of a handwriting exemplar does not implicate an Article I, section 9, privacy right.

A determination that a handwriting exemplar is not testimonial or communicative would allow for its compelled production without violating the Article I, section 12, protection against self-incrimination. But the process by which the exemplar is obtained still must satisfy the strictures of Article I, section 9. For instance, just because an officer may fingerprint a suspect during booking does not mean that the officer may search any of that individual’s belongings for fingerprint evidence without a warrant. Likewise, although a person may be required to speak in court to allow his or her voice to be heard, officers may not tape record the individual’s telephone conversations to obtain voice exemplars without a warrant.

There are ways to obtain handwriting samples that would not constitute a search. It would not have been a search to compel defendant to produce a standard handwriting exemplar pursuant to the trial court’s order. The state’s argument is that, because the object of the search, samples of defendant’s handwriting, could have been obtained by conduct that would not have been a search, then the officers’ conduct here was not a search. So stated, the state’s argument is a non sequitur. That information “may be legally obtained does not mean that every method that can be used to obtain the same information does not invade an individual’s privacy interest or constitute a search.” State v. Casconi, 94 Or App 457, 460, 766 P2d 397 (1988). See Campbell, 306 Or at 172 (although following a car on public roadway not a search, attaching a tracking device to car was a search in violation of Article I, section 9).

As the state admits, it is “unreasonable and unrealistic” to read words in a document for handwriting samples while ignoring the words’ content. Thus, we hold that, before such an intrusion may be made into a person’s private papers,¹ the police must have a warrant or some recognized exception to the warrant requirement that authorizes the intrusion.

Because the police did not have a warrant to examine the notebook, we look to see if the search of it falls within one of the exceptions to the warrant requirement. For purposes of our analysis in this case, we have assumed that the notebook was seized under exigent circumstances. The exigent circumstances exception to the warrant requirement recognizes that practical necessity may require evidence to be seized before a warrant can be obtained. State v. Brown, 301 Or 268, 274, 721 P2d 1357 (1986); State v. Nicholson, 89 Or App 306, 748 P2d 1028, rev den 305 Or 672 (1988). However, searches and seizures are separate acts that must be analyzed separately. State v. Tanner, 304 Or 312, 316, 745 P2d 757 (1987); State v. Peterson, 114 Or App 126, 129, 834 P2d 488, rev dismissed 315 Or 272 (1992). When no emergency exists or the emergency has ceased to exist, for example, when officers have property in secure custody, a warrant must be obtained before a search of the property is authorized.

In State v. Sears, 69 Or App 260, 264, 684 P2d 1240 (1984), the police seized property from the defendant upon his arrest. They placed the property in an envelope and gave the envelope to jail custodians. The police later searched the contents of the envelope without a warrant, and the defendant moved to suppress the evidence obtained from the search.

In suppressing the evidence, we noted that the evidence “was not of an ephemeral nature,” the defendant did not have access to the envelope and he could not have removed evidence from it. Id. at 264. We stated:

“In short, there was no justification for the failure to obtain a search warrant beyond the fact that it was inconvenient to do so or that the police did not believe that they could obtain one on the basis of information that they had.” Id.

Likewise, in this case, although exigent circumstances may have justified the warrantless invasion of defendant’s possessory interest in the notebook, they did not justify the warrantless invasion of defendant’s privacy interest in it. Once the police had the notebook in their possession, the officers no longer had reason to fear that the contents would be lost or destroyed; the exigency had expired. Absent another justification for the ensuing search of the notebook without a warrant, the search was invalid.

The state offers no other justification for opening and reading defendant’s notebook to look for handwriting samples. The state makes arguments in relation to the later re-readings of the notebook. Those arguments are premised, however, on a determination that the initial reading was valid. Because we have determined that the initial reading was a search and was invalid without a warrant, we do not address the state’s remaining arguments. If the officers had probable cause to believe that defendant’s notebook contained evidence of a crime, they were required to obtain a warrant before opening and reading it. Consequently, the trial court correctly ruled that the search was illegal, and any evidence that flowed from that search must be suppressed.²

The state argues that, even if suppression of some of the evidence was proper, the trial court’s order suppressing “the evidence of the contents of the documents seized from the defendant on August 26, 1991, and any evidence derived from the examination of those documents” is too broad. The state urges us to remand the case for “specific factual findings on the issues of plain view observation and inevitable discovery.” The state’s plain view argument fails because is it based on the assumption that the use of information obtained from the initial perusal of the notebook was lawful.³

In order for the doctrine of inevitable discovery to apply, the state must establish by a preponderance of the evidence that, absent the unlawful conduct by the police, the police inevitably would have discovered the disputed evidence through proper and predictable investigatory procedures. State v. Miller, 300 Or 203, 225, 709 P2d 225 (1985). The state asserts that it would have discovered certain evidence through the officers’ investigation. On the contrary, in its memorandum opposing defendant’s motion to suppress, the state conceded that “[i]t is doubtful that the evidence providing probable cause for [the ten search warrants] would have been discovered without the inspection of defendant’s 3" by 5" spiral notebook seized on August 26, 1991.” Grow testified at the suppression hearing that he agreed with that concession. The trial court properly suppressed the evidence.

Affirmed.

1 The state argues that defendant’s notebook “displayed no observable manifestation that defendant intended to keep the contents private; it was not labelled ‘diary’ or anything to indicate it was private, and it was not secured with a lock (as many diaries are) or even a rubber band.” Thus, the state concludes that the notebook was subject to examination while it was in police custody. We disagree. “Papers” are specifically protected under Article I, section 9, against unreasonable search and seizure. A person is not required to label his or her papers as private or otherwise secure them against inspection in order to protect them against governmental scrutiny.

2 In his concurring opinion, Judge Edmonds concludes that the initial examination of the notebook was not a search, because “defendant had no privacy interest in the fact that the notebook contained his handwriting.” 136 Or App at 182. He cites State v. Herbert, 302 Or 237, 729 P2d 547 (1986), and State v. Owens, 302 Or 196, 729 P2d 524 (1986), as support for that conclusion. Those cases are readily distinguishable from this case, and do not support the conclusion for which they are cited.

In Herbert and Owens, the court held that the searches at issue did not invade a privacy interest, because they simply sought to confirm information about the contents of the objects to be searched that the objects themselves conveyed about their contents. Significantly, there was no reason to believe that the search would disclose anything other than that the objects contained that which they were believed to contain, so the search would not invade any remaining privacy interest in the contents. That is because the objects themselves already had communicated everything that was private about their contents. Here, in contrast, the information known about the contents of the notebook before the search did not constitute everything that was private about them, because the notebook was expected to contain something more than a random combination of letters on which to make a handwriting comparison. The state concedes that reading the notebook for handwriting samples necessarily required the officers to read the content of the writing. Hence, scrutiny of the notebook to confirm its use for a handwriting comparison necessarily would intrude on defendant’s privacy, which distinguishes this case from Herbert and Owens.

3 Had the officers not illegally searched the notebook to look for handwriting samples, they never would have seen notations about storage units, which notations ultimately led them to search those units and discover evidence of defendant’s criminal conduct. There is no evidence to suggest that the police would independently have looked for storage units connected with defendant. Had they not searched the first several storage units, they would not have seen evidence in “plain view” that led them to procure the later warrants.