State v. Rodriguez

823 P.2d 1026, 110 Or. App. 544, 1992 Ore. App. LEXIS 47
CourtCourt of Appeals of Oregon
DecidedJanuary 8, 1992
DocketC89-01-30382; CA A62825
StatusPublished
Cited by11 cases

This text of 823 P.2d 1026 (State v. Rodriguez) 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. Rodriguez, 823 P.2d 1026, 110 Or. App. 544, 1992 Ore. App. LEXIS 47 (Or. Ct. App. 1992).

Opinions

[546]*546DE MUNIZ, J.

Defendant appeals his convictions on two counts of being an ex-convict in possession of a firearm. ORS 166.270. He assigns as error the trial court’s denial of his motion to suppress evidence seized during a warrantless search of his residence. We conclude that defendant’s consent to the search was obtained by exploitation of illegal police conduct, and we reverse.

The facts are undisputed. Defendant was subject to deportation, because he was an alien who had been convicted of possession of a controlled substance.1 United States Immigration and Naturalization Service (INS) Agent Valladolid obtained an administrative warrant for defendant’s arrest.2 Valladolid assembled members of a “regional crime narcotics task force,” including six Portland police officers and an FBI agent, to accompany him to defendant’s residence. Valladolid knocked on the door, and defendant opened it. Valladolid showed defendant his identification and the arrest warrant. Speaking in Spanish, he identified himself and told defendant that he had an arrest warrant and that defendant was under arrest. Defendant said, “Okay,” and stepped back, which [547]*547Valladolid interpreted as an invitation to enter. Valladolid stepped in and read defendant the Miranda warnings in Spanish. Defendant said that he understood his rights. Val-ladolid asked, “Do you have any drugs or guns in the house?” Defendant responded, “No, go ahead and look.” Valladolid asked whether they could search, and defendant said, “Yes, go ahead.”

Valladolid and the other officers searched the house. The FBI agent found a 9 mm pistol under defendant’s pillow. A Portland police officer found a .25 caliber pistol in his closet. In response to questioning, defendant said that the 9 mm pistol was his. He said that, although the .25 caliber pistol did not belong to him, his fingerprints would be found on it. Defendant moved to suppress his statements and the pistols that were seized during the search. The trial court denied the motion.

Defendant does not argue on appeal that any of his statements should have been suppressed. Instead, he contends that the arrest warrant was invalid under the Fourth Amendment, and under Article I, section 9, of the Oregon Constitution, “because it was unsupported by oath or affirmation.” He argues that the state failed to prove that his consent to the search was valid and that the pistols should have been suppressed. He also argues that the pistol found by the Portland police officer should have been suppressed, because the police officers lacked authority to assist in an administrative deportation arrest.

The state concedes that the administrative warrant was not supported by oath or affirmation, but argues that the warrant did not require an oath or affirmation. Alternatively, the state argues that the requirement was sufficiently satisfied, because Valladolid presented a certified copy of defendant’s conviction to the INS assistant director, who issued the warrant. The state also argues that Valladolid could have arrested defendant without a warrant and that, even if the arrest was invalid, defendant’s consent to the search was valid.

The threshold issue is whether an administrative warrant, issued without a supporting oath or affirmation, is constitutionally valid. The United States Supreme Court has [548]*548never expressly determined the constitutionality of administrative deportation warrants. See Abel v. United States, 362 US 217, 233, 80 S Ct 683, 4 L Ed 2d 668 (1960). However, the Court noted that:

“Statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time.” 362 US at 230.

Additionally, the Court observed that it had often upheld deportation proceedings that were initiated pursuant to administrative arrest warrants. 362 US at 233-34.

An administrative warrant may be lawful for deportation purposes. However, state rules of evidence control the admissibility of evidence in state courts. See Ker v. California, 374 US 23, 31, 83 S Ct 1623, 10 L Ed 2d 726 (1963). The Oregon Constitution dictates that

“all citizens, including criminal defendants, have constitutional rights, and the state may not prove, over objection, any crime with unconstitutionally obtained evidence.” State v. Isom, 306 Or 587, 595, 761 P2d 524 (1988).

State constitutional protections deserve at least as much respect as the Oregon Rules of Evidence. For the purpose of prosecuting state offenses in state courts, the validity of an arrest is measured by state standards.

Defendant does not argue that ORS 133.245(1)3 controls this case. Instead, he argues that Article I, section 9, invalidates an administrative arrest warrant that is not supported by oath or affirmation. We recently said that,

“By its express language, Article I, section 9, does not limit its application. It states that ‘no warrant shall issue, but upon probable cause, supported by oath, or affirmation.’ ” State v. Brown, 96 Or App 171, 175, 772 P2d 429 (1989). (Emphasis in original.)

[549]*549We recognized that

“The guarantee of Article I, section 9, that no individual’s liberty be deprived by a warrant unless supported by oath or affirmation would be frustrated if a court could issue a warrant unsupported by a sworn statement* * *.”96 OrApp at 175.

It makes no difference that a court did not issue the arrest warrant, that the warrant was an “administrative” warrant or that defendant was arrested by a federal agent. Agent Valladolid deprived defendant of his liberty by arresting him. “No” still means “no.” For the purpose of state prosecutions in state court, an arrest warrant is invalid if it is not supported by oath or affirmation.4 The oath or affirmation must be presented to a neutral and detached magistrate. Accordingly, we reject the state’s contention that a certified copy of defendant’s prior conviction satisfied the oath or affirmation requirement in this case.

Next, we address the issue of whether Valladolid could have arrested defendant without a warrant. Defendant does not deny that Valladolid had probable cause to arrest him for deportation. However, defendant was in his home when Valladolid came calling. In the absence of exigent circumstances, police may not make a nonconsensual entry into a person’s home to arrest a person without a valid warrant. State v. Olson, 287 Or 157, 165, 598 P2d 670 (1979). The state’s reliance on United States v. Santana, 427 US 38, 96 S Ct 2406, 49 L Ed 2d 300 (1976) is misplaced. The defendant in Santana was “standing directly in the [open] doorway” when police spotted her. 427 US at 40 n 1. The Court held that she was in a public place,

“not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.” 427 US at 42.

The state contends that

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State v. Rodriguez
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Cite This Page — Counsel Stack

Bluebook (online)
823 P.2d 1026, 110 Or. App. 544, 1992 Ore. App. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rodriguez-orctapp-1992.