State v. Drummond

903 P.2d 925, 137 Or. App. 168, 1995 Ore. App. LEXIS 1451

• Court: Court of Appeals of Oregon
• Decided: October 11, 1995
• Docket: 941127; CA A85867; 941128; CA A85868
• Status: Published

Opinions

WARREN, P. J.

In this consolidated case, the state appeals a pretrial order suppressing evidence. We affirm.

Defendants were indicted on six counts of manufacture, delivery and possession of a controlled substance. They moved to suppress evidence seized in a search of their residence, arguing that the state had not proved that the search was conducted pursuant to a warrant. The trial court granted their motion, and the state appeals.

The relevant facts are not in dispute. Officer Pitcher of the Florence Police Department obtained a warrant to search defendants’ residence. Later, he and other officers searched the residence, and seized evidence of a marijuana grow operation. After the search, Pitcher filed with the court a Return of Search Warrant, to which was attached a list of the evidence seized. The return recited:

“I, John E. Pitcher the officer by whom this warrant was executed, say that the attached inventory contains a true and detailed account of all the property taken by me on the warrant issued 03-01-94 by Charles P. Littlehales, Circuit Court Judge and executed at 1012 on 03-02-94 at 2753 Canal Creek Road, Waldport, Lincoln County, Oregon.”

Pitcher did not attach the original search warrant or a copy of the search warrant to the return, as required by ORS 133.615(2).¹ Both the trial court administrator and the issuing magistrate told Pitcher to return the original warrant. Some time later, the trial court administrator received in the mail a copy of the warrant. The copy arrived in an envelope bearing a return address of the Florence Police Department, but the copy was not accompanied by any letter or any other indication that it came from Pitcher or that it was a copy of the warrant that was executed at defendants’ residence. The trial court administrator did not file the copy, because it was a copy rather than the original.

At the hearing on the motion to suppress, the assistant district attorney told the trial court that the officer had failed to return the original warrant, as required by ORS 133.615. The state offered into evidence the unfiled copy of the warrant. The trial court sustained defendants’ objection to that evidence, concluding that there was no foundation laid that the proffered copy was a copy of the warrant that was actually served. Defendants then argued that the defect in the return of service made it impossible for the court to determine whether defendants’ residence had been searched pursuant to a lawfully issued warrant. The trial court agreed and granted defendants’ motion to suppress the evidence.

On appeal, the state assigns error to the granting of the motion to suppress. It asserts that the basis for the trial court’s suppression was that the state violated ORS 133.615(2) by failing to make a proper return of the search warrant. According to the state, the court erred, because a technical statutory violation does not warrant the suppression of the evidence. Defendants respond that the state mischaracterizes the trial court’s ruling. They assert that the basis for the trial court’s suppression was “actually one of an absence of proof, i.e., proof that the original warrant was served and utilized as a basis for conducting the search.”

The trial court’s order provides:

“1) The State offered into evidence the following documents: (a) Affidavit for Search Warrant; (b) a Return of Search Warrant, the same having been duly filed with the Court; and (c) an unfiled copy of a Search Warrant.

“2) Items (a) and (b) were received without objections, but counsel for the Defendants] objected to the receipt of item (c), the unfilled copy of the Search Warrant, on the grounds and for the reason there was no foundation whereby it is shown or established that such copy of the Search Warrant is the Warrant that was utilized to conduct the search, or that the search warrant, or true copy of the Search Warrant was actually served upon the Defendant and utilized as the basis and entitlement for the conduct of the search in this matter.

“3) The State then offered evidence in support of the admission of such copy of a Search Warrant.

“4) On such evidence and such showing before the Court, the Court found that the objection was well taken and sustained the objection.

“5) Whereupon, the State represented there was no further evidence to be offered to establish what Warrant, if any, and in what form was served and utilized as a basis and entitlement for the search and that the State could not support the validity of a warrantless search.

“6) The State did not move the court for a continuance, nor did the State offer any explanation why the officer who ostensibly served the warrant was absent at the hearing.

“7) The State did not present any evidence explaining why the statute requiring the return of the search warrant (ORS 133.615) was not complied with by the officer, nor did the officer who ostensibly served the warrant testify as to why the warrant was not returned in accordance with ORS 133.615.

“WHEREFORE, the Court being fully informed, finds that the State has not proven that the search was conducted pursuant to a valid Search Warrant and the State has not proved the validity of a warrantless search.” (Emphasis ' supplied.)

The court’s order shows that it suppressed the evidence not because there had been a mere technical violation of the statute, but because the court found that, in this case, the statutory violation resulted in the state being unable to prove a lawful search pursuant to a warrant.² Therefore, the question on review is not whether the technical statutory violation justifies suppression of the evidence as a matter of law, but whether the trial court’s finding that the state had not proved that the search was conducted pursuant to a valid warrant is supported by the evidence. See State v. Ehly, 317 Or 66, 854 P2d 421 (1993).

The dissent asserts that, before we can reach that issue, we should first answer a legal question: Did the trial court err in excluding the copy of the warrant from evidence in the suppression hearing? It relies on State v. Wright, 315 Or 124, 843 P2d 436 (1992), to conclude that the trial court erred in refusing to admit the copy. Although the admissibility of the copy would be the preliminary question had it been properly raised, here it has not been properly raised. Unlike in Wright, here the state does not assign error to the trial court’s ruling excluding the copy of the warrant. Therefore, that ruling is not properly before us, and we may not consider it. ORAP 5.45. We proceed then to determine whether, based on the evidence that was admitted, the trial court’s finding is supported by the evidence.³

The return of warrant form signed by Pitcher said that “the attached inventory contains a true and detailed account of all the property taken by me on the warrant issued 03-01-94 by [the issuing magistrate].” However, there was an absence of any evidence that the warrant issued on March 1, 1994, was the same one that was served at defendants’ residence or that the copy of the warrant that was received in the mail was a copy of the warrant that was executed at defendants’ residence.⁴ There was also no evidence regarding why the original warrant was not returned. There was evidence that Pitcher was told by both the trial court administrator and the issuing magistrate that he needed to return the original warrant. The state had several months to remedy that defect or to secure some evidence about why the original warrant was unavailable. Further, the state had no explanation to offer in response to the court’s question why the state had failed to offer an affidavit or testimony from the officer that “this [warrant] was the one that he actually served.” As the trial court said:

“[W]e’re left with the noncompliance with the statute. And now it looks — what we have here is, we don’t have the warrant returned, we [don’t] have the explanation for why the warrant wasn’t returned. And I’m supposed to accept, on faith, that that document, Court Exhibit 1 [the copy of the warrant], which showed up in the Court Administrator’s office is, in fact, the same warrant that was given the officer. And — I think this is what’s missing — that that is the one he read to the defendants when he executed it.” (Emphasis supplied.)

The court’s concern was not that the unfiled copy did not match the original warrant; it was that the copy could not prove what, if anything, the officer served when he searched defendants’ residence.

On this record, the court could find that the state had failed to prove, as a matter of fact, that the officer searched defendants’ home pursuant to an authorized warrant. Because there is evidence in the record to support that finding, we are bound by it. Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). The trial court did not err in suppressing the evidence.

Affirmed.

1 ORS 133.615(2) provides:

“An officer who has executed a search warrant shall, as soon as is reasonably possible and in no event later than the date specified in the warrant, return the warrant to the issuing judge together with a signed list of things seized and setting forth the date and time of the search.”

2 It is apparent that the trial court understood that a technical statutory violation does not necessarily require suppression of the evidence. During the hearing on the motion to suppress, the trial court discussed and distinguished several cases that involved whether statutory violations warranted suppression of the evidence. The court observed that, in those cases, there was “extrinsic evidence addressing the issue or the complained violation of the statute.” See, e.g., State v. Evans, 110 Or App 46, 54, 822 P2d 1198 (1991); State v. Nunn, 99 Or App 503, 783 P2d 26 (1989). The court observed that, in this case, there was no such extrinsic evidence. Thus, the tried court understood that the defect in the return could be corrected by extrinsic evidence. The court simply concluded that what the state offered was not sufficient to cure the defect.

3 Even if the court had considered the copy, however, it appears that the court’s concern would not have been met. The evidence could show that the copy was the same as the warrant that was issued; it did not provide any evidence that the original warrant was served.

4 The court said that it believed that the copy was of the warrant that the magistrate had issued. The court said, however, that “[t]he problem is, what did the officer serve?” (Emphasis supplied.)