State v. Bobbitt

275 P.3d 187, 249 Or. App. 181, 2012 WL 1113971, 2012 Ore. App. LEXIS 406
CourtCourt of Appeals of Oregon
DecidedApril 4, 2012
DocketF15567; A142610
StatusPublished
Cited by1 cases

This text of 275 P.3d 187 (State v. Bobbitt) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bobbitt, 275 P.3d 187, 249 Or. App. 181, 2012 WL 1113971, 2012 Ore. App. LEXIS 406 (Or. Ct. App. 2012).

Opinions

[183]*183BREWER, J.

The state appeals pretrial orders suppressing evidence and granting defendant’s motion for return of seized property. Defendant was charged with conspiracy to commit delivery of marijuana for consideration, ORS 475.862, manufacture of marijuana within 1,000 feet of a school, ORS 475.860(1), delivery of marijuana within 1,000 feet of a school, ORS 475.860(1), and possession of marijuana, ORS 475.864. Before trial, defendant filed a motion to suppress and to controvert, as well as a motion to require the state to produce seized items for inspection by the defense, and a motion for return of seized items, described in more detail in the discussion below. The trial court granted the motions in pertinent part, and the present appeal ensued. ORS 138.060(l)(c). We conclude that the trial court properly suppressed the evidence in question and ordered the return of monies seized from defendant’s safe deposit box. Accordingly, we affirm.

The state makes two arguments. First, the state argues that defendant’s statutory rights under the banking privacy laws, former ORS 192.550 to 192.595,1 were not violated when a bank employee turned over defendant’s financial records to a police officer, which, in turn, led to the seizure of defendant’s safe deposit box containing a significant amount of cash. Second, the state argues that defendant did not establish a due process violation based on the destruction of exculpatory evidence when the state converted the cash that had been found in defendant’s safe deposit box into a check and deposited it in an interest-bearing account. As explained below, we conclude that the trial court correctly determined that the violation of defendant’s rights under the banking privacy laws entitled defendant to suppression of all evidence pertaining to the safe deposit box. Accordingly, we need not address the state’s arguments concerning the alleged destruction of exculpatory evidence.

In reviewing a trial court’s decision on a motion to suppress, we view the record, and all the inferences that it [184]*184will support, in the light most favorable to the trial court’s findings, if there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or 66, 74-75, 854 P2d 421 (1993). In the absence of express findings, we presume that the trial court decided factual issues in a manner consistent with its ultimate conclusions. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). There are no significant factual disputes at issue here, at least with regard to the dispositive questions relating to the banking privacy laws.

On May 22, 2008, Officer Conner of the Drug Enforcement Section of the Oregon State Police executed a search warrant — not the warrant at issue in the present appeal — at defendant’s residence. In the course of doing so, Conner found more than eight pounds of marijuana, more than $11,000 in cash, and records indicating that defendant had approximately $80,000 in a checking account at the Community Bank. On May 23, 2008, Conner sent to the Joseph Branch of the Community Bank a “Notice of Intent to Seize Bank Accounts” listed under defendant’s name.2

Later that day, Conner received a call from a bank employee telling him that defendant was there seeking access to his safe deposit box, and asking Conner if “the notice of intent to seize also was for the safe deposit box.” Conner replied to the bank employee, “Yes, everything that is in [defendant’s] name we need to seize at this point through the State Police.”

On May 29, 2008, in anticipation of applying for the search warrant at issue here, Conner went to the Community [185]*185Bank and spoke with an operations supervisor, Johnson, “got the actual address for where the safe deposit box was held,” and “asked her for the number on the safe deposit box so I could specify the safe deposit box that we wanted to search.” Johnson provided that information, which Connor then incorporated into an affidavit in support of a search warrant, along with details of his training and experience, to support a conclusion that individuals who traffic in drugs often secrete proceeds of their drug crimes in safe deposit boxes.

On May 30, 2008, Conner obtained a search warrant authorizing him to seize the specified safe deposit box. Pursuant to that warrant, Conner seized the safe deposit box, determined that it had a large amount of cash in it, and transported it to his office. At some point thereafter, another officer’s drug-detection dog alerted to the safe deposit box. On July 29, 2008, defendant filed a motion requiring the state to produce for inspection various items seized, including the safe deposit box with the cash in it. The following day, the state converted the cash into a cashier’s check and deposited it into a bank account. Defendant thus was not afforded an opportunity to inspect the cash in the safe deposit box.

As pertinent to this appeal, defendant’s motion to suppress and controvert was based on the theories that (1) the bank turned over his financial records — in particular, details about the existence of and details about his safe deposit box — in violation of Oregon’s banking privacy laws, former ORS 192.550 to 192.595; and (2) the state’s disposal of the cash contained in the safe deposit box violated his due process rights. The trial court agreed with defendant on both points, and accordingly, granted defendant’s motion to suppress all evidence pertaining to the safe deposit box and ordered the return of money seized from the safe deposit box.

As an initial matter, we note what is not at issue in this case. The pertinent events described above occurred as a result of Conner’s issuance of a “Notice of Intent to Seize” that he issued to defendant’s bank, citing ORS 131.561, a provision of the criminal forfeiture law. The state does not assert that ORS 131.561, or any other provision of the criminal forfeiture laws, see ORS 131.550 through 131.604, authorized the disclosure of defendant’s financial records or seizure of [186]*186defendant’s safe deposit box, or that the criminal forfeiture laws in any way override the banking privacy laws. The question presented, then, is simply whether defendant is entitled to suppression of the evidence pursuant to former ORS 192.590

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Related

State v. Bobbitt
275 P.3d 187 (Court of Appeals of Oregon, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
275 P.3d 187, 249 Or. App. 181, 2012 WL 1113971, 2012 Ore. App. LEXIS 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bobbitt-orctapp-2012.