State v. Weaver , 121 Or. App. 362 ( 1993 )

De MUNIZ, J.

Defendant owns a secondhand store that sells guns. He was indicted on 52 counts of failing to register the transfer of handguns and on 249 counts of failing to register the transfer of used firearms. ORS 166.420; ORS 166.427. The state appeals an order granting defendant’s motion to suppress evidence that was seized during a warrantless search of his store. ORS 138.060(3). We affirm.

We take the facts from the trial court’s findings that are supported by the evidence and the evidence that is consistent with those findings. State v. Davis, 313 Or 246, 250, 834 P2d 1008 (1992); State v. Huckaba, 115 Or App 728, 730, 839 P2d 768, rev den 315 Or 272 (1992).

On October 19, 1990, Multnomah County sheriffs deputies and Portland police officers, armed with a warrant, searched defendant’s store. They were looking for stolen property that had been sold to the store by a known burglar. During that search, Deputy Hutchison asked Sergeant Merrill to demonstrate how to check for compliance with an ordinance that regulates record keeping by secondhand dealers. The ordinance requires the dealer, when purchasing regulated property, to record the identity of the seller and a description of the property on a form called a secondhand dealer report.¹ Multnomah County Code § 6.81.080. The ordinance also requires the dealer to keep regulated items in the store for 15 days after purchasing them. Multnomah County Code § 6.81.090.

With defendant’s cooperation, Hutchison and Merrill examined 31 secondhand dealer reports. The officers found irregularities on eight of the reports and seized them.²

Hutchison decided to do a more extensive “compliance check.” He returned to defendant’s store on November 28,1990, with 12 or 13 officers. According to Hutchison, they arrived around noon. Defendant was not at the store, but the manager, Laudum, was there. The officers began conducting the compliance check. They soon discovered that the firearms transfer forms required by ORS 166.427 were not in the store. Hutchison then asked Laudum for permission to search the store, and Laudum said that Hutchison would have to ask defendant.

Hutchison spoke with defendant on the telephone. Defendant asked Hutchison to come and speak to him in person at the fire station where he was working. Hutchison and Sergeant Beamer went to the fire station and asked defendant if they could search his store. Defendant called his attorney, Alterman, and spoke with him while the officers waited. Alterman then spoke with Hutchison and negotiated an amendment to a written consent form. Alterman then advised defendant to sign the form. A notation on the form indicates that defendant signed it at 2:00 p.m.

Merrill testified and explained how the search was conducted. A deputy took the Acquisition Disposition Register (ADR), a federally required record, to the sheriffs office, made photocopies of it and brought them back. The officers checked the brands and serial numbers of the guns that were in the store. Then, they checked the ADR to ascertain the secondhand dealer report number for each gun and asked the employees for each report. Most of the reports were not available, and some reports did not match the guns listed on the ADR. The officers seized most of the guns in the store. Merrill testified that the officers began examining the ADR, the guns and the secondhand dealer reports 30 to 45 minutes after arriving at the store.

Detective Howe testified about the property receipts that were filled out while the guns were being seized. He said that he put an identification tag on each gun while another officer entered a description of the gun and the tag number on the property receipt. After the officer entered the information about a gun in the property receipt, another officer removed the gun to the property truck. Two of the three property receipts listed 12:15 p.m. as the “occurrence” time and the third receipt did not list any occurrence time. Howe examined one of the receipts and identified it. He said that the 12:15 time might not be accurate, but he indicated that he probably started tagging the guns by 1:00 p.m.

The trial court granted defendant’s motion to suppress all of the evidence seized during the November 28 search on two grounds. First, the court found that the officers began searching for evidence and seizing it before Hutchison obtained defendant’s consent. Second, the court concluded that the seizure of the ADR and the guns exceeded the scope of the consent that defendant had granted, because defendant had not consented to the seizure of evidence of record keeping violations.³

The state contends that there is no evidence to support the court’s finding that the officers began their search before Hutchison obtained defendant’s consent. The state is wrong. Hutchison and Merrill testified that the officers arrived at defendant’s store around noon. Merrill’s and Howe’s testimony indicates that the seizure of evidence began no later than 1:00 p.m. The consent form indicates that defendant purportedly consented at 2:00 p.m. The evidence supports a finding that the officers began searching for and seizing evidence well before defendant signed the consent form. The officers invaded defendant’s constitutionally protected privacy interests when they began searching and seizing evidence without a warrant, without consent and without any other exception to the warrant requirements of Article I, section 9, and the Fourth Amendment. The fact that defendant subsequently consented does not vitiate the unlawfulness of a search and seizure that violated the state and federal constitutions at its inception.⁴

The state contends that the court abused its discretion by refusing to allow the state to present additional evidence to clarify when the search began. To preserve that alleged error, the state was required to make an offer of proof on what evidence it would have presented. State v. Busby, 315 Or 292, 298, 844 P2d 897 (1993). The state did not make an offer of proof, nor did it attempt to do so. Compare State v. Rodriguez, 115 Or App 281, 840 P2d 711 (1992) (reversible error when the defendant had a right to make an offer of proof and the court refused to allow him to make the offer). The state has waived any objection it may have had to the court’s decision to not allow the state to reopen the evidentiary phase of the hearing.

It is possible that some of the searching and seizing occurred after defendant consented. However, nothing in the record suggests which items were seized after 2:00 p.m., nor does the record indicate which evidence was seized without the benefit of information contained in the ADR.⁵ If any of the evidence was lawfully seized, the state has not met its burden of proving it.

Because the state did not prove that the search for and seizure of evidence followed defendant’s consent, we need not decide whether the seizure exceeded the scope of defendant’s consent.

In a separate motion, defendant moved to suppress the ADR on the ground that federal law forbade the officers from asking defendant for permission to examine it. The court denied that motion. That ruling is the subject of defendant’s cross-appeal. We need not address separately the issues raised in his cross-appeal, because the court correctly granted his motion to suppress all of the evidence that was seized on November 28. The cross-appeal is moot.

Affirmed on appeal and on cross-appeal.

1 The form is also referred to as a PS51.

2 The court denied defendant’s motion to suppress those reports. That ruling is not before us.

3 The court found that defendant consented to the seizure only of stolen property.

4 The dissent’s presentation of this case as a fairy tale is indeed entertaining, but it relies on a phenomenon that can happen only in fairy tales — time travel. The dissent apparently concedes.that the record supports the trial court’s finding that the officers began searching and seizing before Hutchinson obtained defendant’s consent. When the “queen’s soldiers” (the police) began searching Weaver’s pawn shop and seizing evidence, they had no exception to the warrant requirement.

Hutchinson obtained defendant’s consent at 2:00 p.m. The dissent contends:

“A knowing consent made subsequent to the inception of the search and seizure could relate back to the beginning of the search and act as a waiver of defendant’s section 9 rights regarding the privacy interests that were invaded before the consent form was signed.” 121 Or App at 372.

The dissent concedes that from 12:30 to 2:00 p.m., the “queen’s soldiers” were unreasonably searching and seizing. The dissent asserts: “The moral of this fable is that ‘reasonable’ really means ‘unreasonable.’ ” 121 Or App at 371. That assertion could only be correct if we accept the dissent’s proposition that the magic wand of voluntary consent transported the defendant and the “queen’s soldiers” back in time so that the consent preceded the concededly unreasonable search and seizure.

But this is not Wonderland; “unreasonable” still means “unreasonable,” and neither we nor Officer Hutchinson can travel back in time to alter the past. Even if we could, the record would not support a finding that defendant consented to a search that was already in progress. The state admits that defendant did not know about the ongoing search when he signed the consent form. He could not possibly have ratified the unreasonable and unconstitutional search and seizure, and the state failed to prove that any evidence was seized after defendant consented.

5 Evidence seized because of information contained in the ADR would require suppression, unless the state proved that it would have been discovered independently by lawful means. ORS 133.683.