State v. Baumeister , 80 Or. App. 626 ( 1986 )

723 P.2d 1049 (1986) 80 Or. App. 626

STATE of Oregon, Respondent,
v.
Brian Keith BAUMEISTER, Appellant.
STATE of Oregon, Respondent,
v.
Jeffery L. BAUMEISTER, Appellant.

85-0367 (D01), 85-0367 (D02); CA A36520.

Court of Appeals of Oregon.

Argued and Submitted January 31, 1986. Decided August 13, 1986. Reconsideration Denied October 17, 1986.

Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for appellants. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Jeff Bennett, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

In this consolidated appeal, defendants appeal their convictions for burglary in the first degree. ORS 164.225. Their sole contention is that the trial court erred in denying their motion to suppress evidence that the police seized from defendant Jeffery Baumeister's car without a search warrant. We hold that the police searched the car and seized the evidence with his consent and affirm.

Defendants had been arrested as suspects in the burglary for which they were convicted, and Jeffery was in custody at the police station when a police officer requested permission to search his car. He signed a consent form giving permission to do so. Immediately before the officer requested the permission, he had read Jeffery the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and had asked him whether he wished to talk.^[1] Jeffery said: "No." Approximately one and one-half to two hours before that, the police officers who had originally stopped and arrested defendants had read them Miranda warnings. Jeffery had at that time said that he did not want to speak to the police, and there is some evidence that he said that he would not speak to the police until he had spoken to an attorney.

Defendants argue that, after Jeffery invoked his right to silence and right to counsel, the police were required to honor those requests and were foreclosed from asking him for permission to search his car. See Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981); Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). They contend that that request and the use of the evidence found during the search violated his right against compelled self-incrimination guaranteed by Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the federal constitution.

Those provisions protect the right against testimonial self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); State v. Cram, 176 Or. 577, 160 P.2d 283 (1945). A defendant's consent to search is not an incriminating statement subject to suppression for Miranda violations. Cody v. Solem, 755 F.2d 1323 (8th Cir.), cert. den. ___ U.S. ___, 106 S. Ct. 104, 88 L. Ed. 2d 84 (1985); Smith v. Wainwright, 581 F.2d 1149 (5th Cir.1978); United States v. Lemon, 550 F.2d 467 (9th Cir.1977); See also 2 La Fave, Search and Seizure: A Treatise on the Fourth Amendment 671-74, § 8.1(j) (1978).

" * * * Simply put, a consent to search is not an incriminating statement. [The defendant's] consent, in and of itself, is not evidence which tends to incriminate him. While the search taken pursuant to that consent disclosed incriminating evidence, this evidence is real and physical, not testimonial. * * * " Cody v. Solem, supra, 755 F.2d at 1330. (Citations omitted.)

Jeffery's consent to the search was not in itself an incriminating statement^[2] and the admission of evidence obtained in that search did not violate either defendant's state or federal constitutional rights.^[3]

Affirmed.

WARDEN, Judge, specially concurring.

I concur because the police had probable cause to search defendant's car and because the recently-discovered automobile exception to the warrant requirement of Article I, section 9, of the Oregon Constitution excuses their failure to obtain a warrant. State v. Brown, 301 Or. 268, 721 P.2d 1357 (1986); State v. Bennett, 301 Or. 299, 721 P.2d 1375 (1986). Whether defendant could properly consent to the search after requesting a lawyer is therefore irrelevant. I do not necessarily agree with my colleagues' resolution of that issue. Neither do I think that it was necessary for them to discuss it. See State v. Bradbury, 80 Or.App. 613, 723 P.2d 1051 (decided this date) (Warden, J., specially concurring).

NOTES

[1] Article I, section 12, of the Oregon constitution also requires that Miranda warnings be given. State v. Kell, 77 Or.App. 199, 712 P.2d 827 (1986); State v. Smith, 70 Or.App. 675, 691 P.2d 484 (1984), rev. allowed 298 Or. 704, 695 P.2d 1371 (1985).

[2] In State v. Williams, 248 Or. 85, 432 P.2d 679 (1967), the court, in a 4-3 decision, held that, under the Fifth Amendment, a defendant who is in custody and is a focal suspect in a case must be informed of his constitutional rights before evidence seized pursuant to his consent to search is admissible at trial. The court stated: "In effect, the request to search is a request that defendant be a witness against himself which he is privileged to refuse under the Fifth Amendment." 248 Or. at 93, 432 P.2d 679. Neither party cites Williams, perhaps because it has been significantly undercut, if not effectively overruled. In United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976), and Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), the Supreme Court rejected the argument that a consent search is unlawful unless the police have informed the person in custody of his right to refuse to consent. In State v. Flores, 280 Or. 273, 570 P.2d 965 (1977), the court rejected the same argument as a matter of state constitutional law. The majority quoted with approval Judge Holman's dissent in Williams, in which he had argued that Miranda and Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), should not apply to searches and seizures. 280 Or. at 281-82, 570 P.2d 965. In the light of the later cases, we do not believe that the quoted statement from Williams is controlling in this case.

[3] Defendant does not argue that his consent was involuntary.