Emery v. State , 297 Or. 755 ( 1984 )

CAMPBELL, J.

The plaintiffs brought this action in Lake County to collect damages for the cost of repairs to their pickup truck. The issue of liability was submitted to the trial court on stipulated facts and cross motions for summary judgment. The trial court found for the plaintiffs and entered a judgment for damages in the amount of $2,000. The Court of Appeals affirmed. We reverse and remand.

The basic issue is framed by the parties’ stipulation:

“This case presents an issue of law, which is whether or not the State of Oregon is obligated to pay just compensation to the owners of private property which is seized for use as evidence in a criminal case, and is damaged in the course of reasonably necessary tests performed in the state’s investigation, and which is returned to its owners in its damaged condition when no longer needed for evidentiary purposes.”

The plaintiff, Lorena Emery, is the mother of the plaintiff, Richard Emery. The plaintiffs are the owners of a 1977 Ford pickup truck.

On or about December 2, 1979, an altercation occurred between Richard Emery and David Sanchez near Paisley in Lake County, Oregon. The incident took place in and around the Emery pickup truck and resulted in the death of Sanchez.

Richard Emery was arrested and charged with murder. The pickup truck was seized by the state as evidence on a warrant. The state police crime laboratory officers dismantled portions of the pickup truck including the roof, headliner and door panels. A bullet hole was found in the headliner. State officers used the roof panel for ballistics tests to determine the caliber of the firearm and angle of fire.

The murder prosecution was dismissed when Richard Emery entered a negotiated plea of guilty to second degree manslaughter. The pickup truck was then returned to the plaintiffs in a dismantled condition with the roof and other parts removed. An auto body shop estimated that the cost of reasonable and necessary repairs to the pickup truck was the sum of $2,290.90.

This is not a tort case. No party has ever contended that it is. The parties stipulated:

“The seizure of the pickup truck, the dismantling of it and the tests performed by the state on the truck and its parts were reasonably necessary in the course of the state’s criminal investigation.”

The plaintiffs contend that they are entitled to recover under either of two chief alternate theories: (1) The state is required by ORS 133.623 to 133.663 to return or restore property seized as evidence to its rightful owners in substantially the prior condition or pay damages, or (2) The state’s acts were in effect an inverse condemnation wherein the pickup truck was “taken for public use” and the plaintiffs are entitled to “just compensation” under Article I, section 18, of the Oregon Constitution.¹

The trial court found that the plaintiffs were entitled to prevail under their statutory theory while the Court of Appeals found that the state had “taken” the plaintiffs’ property for public use and was required to pay “just compensation” under the Oregon Constitution.²

We find that the plaintiffs are not entitled to recover under either theory and reverse and remand to the trial court to enter summary judgment for the defendants.

THE PLAINTIFFS’ STATUTORY CLAIM

ORS 133.633 in part provides:

“(1) Within 90 days after actual notice of any seizure,

“(a) An individual from whose person, property or premises things have been seized may move the appropriate court to return things seized to the person or premises from which they were seized.”

“(b) Any other person asserting a claim to rightful possession of the things seized may move the appropriate court to restore the things seized to the movant.” (Emphasis added.)

The plaintiffs contend under ORS 133.633(1)(b) the legislature intended that in addition to restoring possession of the seized property to the owner, the state is also required to restore the property to its previous condition.³ In other words, they argue that the defendants are required to give the 1977 pickup truck back to them in the same condition it was at the time of the seizure or pay damages. The trial court so held.

The legislature by enacting ORS 133.633 set out two separate classes of people who can file a motion to reclaim property seized by a search warrant: (a) “An individual from whose person, property or premises things have been seized”, and (b) “Any other person asserting a claim to rightful possession of the things seized.” People in the first class may file the motion “to return things seized”, while people in the latter class may file the motion “to restore the things seized.” (Emphasis added.)

The use of the different terms of “return” and “restore” by the legislature was not a slip of the pen. The phrase “the return or restoration of things seized” appears in each of the three sections that make up the balance of the statutory scheme (ORS 133.643,133.653, and 133.663).

The defendants concede that the term “restore” may mean to repair or to bring something back to its previous condition, but point out that it may also mean to “give back or bring back.”⁴ The term “return” is a synonym of “restore.” “Return” also means “to give back.” Websters Third New International Dictionary (unabridged) 1941 (1971).

We determine that the legislature used the term “return” in ORS 133.633(l)(a) and the term “restore” in ORS 133.633(1)(b) because it perceived a distinction in the classes of people moving to reclaim the possession of property that had been seized. It placed a tight and limited definition on the term “return” and in effect used it to mean that property could only be “returned” to people and premises from whence it came. Having used a tight definition of “return” in ORS 133.633(1)(a) then the legislature needed a broader term to define the giving back of property to other persons claiming the right to possession under subdivision (b) and chose the word “restore.” People in the latter category include the owners of stolen property — their “rightful possession of the things seized” may be “restored.”

We hold that the legislature intended that persons under ORS 133.633(1)(b) are entitled only to the restoration of possession of the things seized and that the state is not required to repair or pay damages for any physicial injury to the things during the seizure. To hold otherwise and follow the plaintiffs’ contention would mean that persons claiming under ORS 133.633(1) (a) would be entitled only to the return of possession of the property seized while those qualifying under ORS 133.633(1) (b) would be able to collect damages. There is no logical basis for such a distinction and we hold that the legislature did not so intend.

Our conclusion in this matter is supported by the Criminal Law Revision Commission’s commentary in drafting ORS 133.633:

“This subsection distinquishes the two sources from which * * * demands for return or restoration of property, may issue:

“(a) The person who is the object of the search and from whose possession the seizure was made, and

“(b) Some other person asserting rights of possession, generally on the ground that the person who was the object of the search had stolen the things. * * *.

“(2) * * * in most if not all circumstances, the legality of the search or seizure is not relevant to the disposition of a motion for return or restoration of the property. If possession of the things seized is unlawful, the state retains the things no matter how it got them. If stolen goods are involved and the true owner is on hand with undisputed evidence of title, he should have them restored whether or not the seizure by the police from the thief was proper or improper. If the seizure is for evidentiary purposes of things innocent in themselves, as for example an identifying garment or incriminating records, the lawfulness of the seizure goes only to the question of when they should be returned; when their evidentiary utility is exhausted, the owner should have back his overcoat or his business ledger. * * Criminal Law Revision Commission, Part II. (Emphasis added.) Pre-Arraignment Provisions, Article V, Search and Seizure, Preliminary Draft No. 2, p. 65-66.

The statutory scheme as a whole (ORS 133.623-.663) is keyed to the question of the return or restoration of the “rightful possession” of the property seized. This is particularly true of ORS 133.643 which sets out the grounds for motions seeking the return or restoration of the property seized.⁵ The statute sets out five separate grounds for a motion to support a “valid claim to rightful possession.” Nowhere does the statutory scheme make any reference to the restoration of the property seized to its former physical condition.⁶

THE PLAINTIFFS’ CONSTITUTIONAL CLAIM

The Oregon Constitution, Article I, section 18, provides in part:

“Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation * * *.”

The Constitution of the United States, Amendment V, provides in part:

“* * * nor shall private property be taken for public use, without just compensation.”

In Cereghino et al v. State Highway Com., 230 Or 439, 444-45, 370 P2d 694 (1962), this court said: “The Fifth Amendment to the Constitution of the United States and Article I, section 18, of the Oregon Constitution are identical in language and meaning.” Later in Suess Builders v. City of Beaverton, 294 Or 254, 259 n. 5, 656 P2d 306 (1982), we qualified that statement: “* * * the criteria of compensable ‘taking for public use’ under art I, §18, are not necessarily identical to those pronounced from time to time by the United States Supreme Court under the fifth amendment.”

With the above background in mind, we examine the United States Supreme Court case of Hurtado v. United States, 410 US 578, 93 S Ct 1157, 35 LEd2d 508, (1973). Hurtado and other petitioners were citizens of Mexico who entered this country illegally. To assure the petitioners’ presence as material witnesses at the criminal trials of others accused of bringing them into this country, the petitioners were required to post bail. When they failed to post bail, they were put in jail and were paid only one dollar for every day of their confinement. The petitioners filed an action for damages and argued that when the Government incarcerates material witnesses it has “taken” their property, and that the one dollar a day is not just compensation for this “taking” under the Fifth Amendment. Mr. Justice Stewart in writing for seven members of the court said at 410 US 588-89.

“But the Fifth Amendment does not require that the Government pay for the performance of a public duty it is already owed. See Monongahela Bridge Co. v. United States, 216 US 177, 193 [30 S Ct 356, 54 L Ed 435] (modification of bridge obstructing river); United States v. Hobbs, 450 F.2d 935 (Selective Service Act); United States v. Dillon, 346 F. 2d 633, 635 (representation of indigents by court-appointed attorney); Roodenko v. United States, 147 F. 2d 752, 754 (alternative service for conscientious objectors); cf. Kunhardt & Co. v. United States, 266 U. S. 537, 540 [45 S Ct 158, 69 L Ed 428]. It is beyond dispute that there is in fact a public obligation to provide evidence, see United States v. Bryan, 339 U.S. 323, 331 [70 S Ct 724, 94 L Ed 884]; Blackmer v. United States, 284 U. S. 421, 438 [52 S Ct 252, 76 L Ed 375], and that this obligation persists no matter how financially burdensome it may be. The financial losses suffered during pretrial detention are an extension of the burdens borne by every witness who testifies. The detention of a material witness, in short, is simply not a ‘taking’ under the Fifth Amendment, and the level of his compensation, therefore, does not, as such, present a constitutional question. ‘[I]t is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned, and for performance of which he is entitled to no further compensation than that which the statutes provide. The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public.’ Blair v. United States, 250 U. S. 273, 281 [39 S Ct 468, 63 L Ed 979].” (Footnotes omitted.)

In Daly v. Multnomah County, 14 Or 20, 12 P 11 (1886), this court faced a similar question. Daly sued Multnomah County to recover the sum of $2.20 for one day’s attendance and mileage as a witness in a criminal case. A statute in effect at that time provided “in all criminal actions * * * witnesses residing within two miles of the place of trial, * * * shall not be entitled to recover witness fees or mileage.” The plaintiff contended that the statute was in direct conflict with that portion of Article I, section 18, of the Oregon Constitution which provides “nor [shall] the particular services of any man be demanded, without just compensation.” This court through Chief Justice Lord said:

“We are unable to assent to this construction. In Israel v. State, 8 Ind. 467, it was held that the services of witnesses, in criminal cases, are not ‘particular services’ within the meaning of the constitution, but are of the class of general services which every man is bound to render for his own and the general good. The Court say: ‘It is as much the duty and interest of every citizen to aid in prosecuting a crime, as it is to aid in subduing any domestic or foreign enemy; and it is equally the interest and duty of every citizen to aid in furnishing to all, high and low, rich and poor, every facility for a fair and impartial trial when accused; for none is exempt from liability to accusation and trial. These are matters of general interest and public concern — are vital, indeed, to the very existence of free government, and render the services of witnesses on such occasions matters of general public interest, and not particular in the sense of the constitution.’ ” 14 Or at 21.

Although this court in Daly v. Multnomah County, supra,⁷ considered a different phrase of Article I, section 18 of the Oregon Constitution than that involved in this case, it is interesting to note this court’s reasoning in 1886 was similar to the United States Supreme Court’s reasoning in the Hurtado case in 1973. Further, we can see no logical reason to make a distinction in the consideration of the taking of property and the demanding of services under our state constitution. Reasons which prevent certain acts or things from being a demanding of services under Article I, section 18, should also prevent similar acts or things from being a taking of property.

8 Wigmore, Evidence §2194, 76 (McNaughton rev, 1961) provides:

“If a person, by virtue of his very existence in civilized society, owes a duty to the community to disclose for the purposes of justice all that is in his control which can serve the ascertainment of the truth, this duty includes not only mental impressions preserved in his brain and the documents preserved in his hands, but also the corporal facts existing on his body, and the chattels and premises within his control. There can be no discrimination. The latter forms of disclosure, though more rarely asked for, may be no less necessary. They are included in the general duty.

“Apart from specific privileges, * * *, a person is bound, if required to furnish evidence by submitting his corporal features, his chattels and his premises to the inspection of the tribunal or its duly delegated officers, and to do or exhibit any other thing which may in any form furnish evidence.” (Footnote omitted; emphasis in original.)

Hurtado v. United States, supra, has been cited with approval in the following cases: Williamson v. Vardeman, 674 F2d 1211, 1215 (8th Cir 1982) (Requiring a lawyer to serve without compensation in a criminal defense is not taking property without just compensation); In re Grand Jury No. 76-3 (MIA) Subpoena Duces Tecum, 555 F2d 1306, 1308 (5th Cir 1977) (“As a general rule, a witness or the recipient of a subpoena duces tecum is required to bear the cost of compliance.”); United States v. Friedman, 532 F2d 928, 935 (3rd Cir 1976) (No constitutional requirement that banks be paid for furnishing copies of its records pursuant to summonses); Haldeman v. Freeman, 558 F Supp 514, 519 (DC 1983) (Denied former White House Chief of Staffs action to collect damages for the seizure and retention of his personal diary); In re Grand Jury Investigation, 459 F Supp 1335, 1341 (E D Penn 1978) (Corporation denied costs of $2,199.80 to comply with subpoena); In re Grand Jury Subpoena Duces Tecum, etc., 436 F Supp 46, 51 (D Md 1977) (“The bank’s cost of compliance ($1,858) with this Grand Jury subpoena is part of the ncessary contribution to the welfare of the public.”); United States v. Covington Trust & Banking Co, 431 F Supp 352 (E D Ken 1977) (Bank denied costs of $4,739.00 to comply with Internal Revenue Service summons).

It is apparent from the above cases that the federal law requires citizens to furnish without any compensation or adequate reimbursement services and things necessary to the support system of criminal trials.

We agree with the United States Supreme Court’s reasons and analysis in Hurtado v. United States, supra, and adopt the same as our own in construing Article I, section 18, of the Oregon Constitution. We also agree with Wigmore that every citizen must make available to the State chattels within his or her control for purposes of evidence without expectation of reimbursement.⁸ We can see no reason to make a distinction between the giving of oral testimony and the furnishing of physical evidence. The damage suffered by the plaintiffs’ pickup truck while it was in the custody of the defendants simply was not “taking” within the meaning of our constitution.

This case boils down to the proposition that the Oregon Legislature has not seen fit to allow recovery for damages to property which has been lawfully seized. The legislature could have easily done so when it enacted ORS 133.623 through ORS 133.663.* **⁹

Reversed and remanded to the trial court for entry of summary judgment for the defendants.

1 The plaintiffs, as respondents, in their brief in the Court of Appeals make the bare statement: “There is also the common law right to compensation under the law of bailment.” The argument is not renewed in the plaintiffs’ response to the defendants’ petition for review in this court. Even so, it appears that the plaintiffs’ position is that if this court cannot affirm the judgment entered by the lower courts then the trial court was in error in failing to award them a judgment under the common law bailment. In Artman v. Ray, 263 Or 529, 533, 501 P2d 63, 502 P2d 1376 (1972), this court said:

“When the respondent is seeking to sustain the judgment he should not be required to cross-appeal from the judgment in order to preserve the appellate court’s consideration [of] alleged errors by the trial court. * * * Although no cross-appeal is necessary, it is essential that the respondent unequivocally make the alleged error an issue on appeal and clearly contend that if the judgment cannot be sustained, the respondent is entitled to * * * other relief because of the alleged error of the trial court.”

We have given the plaintiffs the benefit of the doubt and find that they fit within the Artman v. Ray, supra, rule, and that the common law bailment question is before this court. In that connenction we have reexamined the trial court file including the trial court briefs and the transcript of the oral argument before the trial judge and hold that the plaintiffs cannot prevail under the theory of common law bailment.

There is no express bailment. Assuming there was an implied bailment, the parties stipulated that the seizure of the pickup truck, the dismantling of it and the tests performed by the state were reasonably necessary in the course of the state’s investigation. Some fault is necessary to recover on an implied bailment theory. Although the return of property in a damaged condition has been held to support recovery, Carte v. Flury Buick-Jeep, Inc., 264 Or 479, 490, 506 P2d 701 (1973), in light of the parties’ stipulation we can draw no inference of fault.

2 The plaintiffs in their brief in the Court of Appeals cite and rely upon the Fifth Amendment of the United States Constitution in addition to Article I, section 18 of the Oregon Constitution. The Court of Appeals decided the case based solely upon the Oregon Constitution without any reference or mention of the Fifth Amendment. The plaintiffs have not cited or relied upon the Fifth Amendment in this court.

3 The defendants in their opening brief in the Court of Appeals state:

“Plaintiffs rely upon the language of subsection (l)(b) [ORS 133.633(1)] which authorizes any person, other than the individual from whose person or property the item was seized, to move the court to ‘restore,’ a seized item. They contend that by use of the term ‘restore,’ the legislature contemplated not just that possession of the seized property would be restored to the owner, but that the property itself would be restored to its original condition.”

The plaintiffs in their answering brief in the Court of Appeals do not question the above statement. The answering brief in part states:

“ORS 233.623-633 creates a summary statutory procedure in criminal trial courts under which the owners of seized property can regain possession, including a procedure for resolving conflicting claims for possession of the same property. These statutes speak in terms of the property being returned or restored to the owner when no longer needed for evidentiary purposes. * * * ORS 133.623-633 evidences a legislative intent that the private property used as evidence in criminal cases shall be returned or restored to its rightful owners when no longer needed by the State.” (Emphasis in original.)

4 Cases from other jurisdictions have recognized that the term “restore” may vary depending upon the particular statute or contract. In Redmon v. United States, 471 F2d 687, 689 (6th Cir 1972), it was defined as “to give back (something which has been lost, or taken away); to make restitution of; to return.” In Leonardi v. Furman, 83 Ariz 61, 65, 316 P2d 487, 490 (1957), the court held that a thing “is restored when it is put back to a former, original, normal or unimpaired condition.”

5 ORS 133.643:

“A motion for the return or restoration of things seized shall be based on the ground that the movant has a valid claim to rightful possession thereof, because:

“(1) The things had been stolen or otherwise converted, and the movant is the owner or rightful possessor; or

“(2) The things seized were not in fact subject to seizure under ORS 133.525 to 133.703; or

“(3) The movant, by license or otherwise, is lawfully entitled to possess things otherwise subject to seizure under ORS 133.525 to 133.703; or

“(4) Although the things seized were subject to seizure under ORS 133.525 to 133.703, the movant is or will be entitled to their return or restoration upon the court’s determination that they are no longer needed for evidentiary purposes; or

“(5) The parties in the case have stipulated that the things seized may be returned to the movant.”

6 The Maryland Court of Special Appeals in the case of In re Special Investigation No. 228, 458 A2d 820, 54 Md App 149 (1983), examined a similar statute, Md. Ann. Code Art. 27 §551 (1982 Repl. Vol.) which provided in part:

“(b) If the criminal case in which property of a person was seized pursuant to a search warrant issued under subsection (a) of this section is disposed of because of (i) an entry of nolle prosequi, (ii) dismissal, or (iii) acquittal, or if the State does not appeal such a criminal case or if the time for appeal has expired, all property of the person, except contraband or any property prohibited by law from being recoverable, may be returned to the person from whom it belongs without the necessity of that person instituting an action for replevin or any other legal proceedings against the agency having custody of the property.

“(c)(1) If at any time, on application to a judge * * * it is found that property rightfully taken under a search warrant is being wrongfully withheld after there is not further need for retention of the property, the judge must cause it to be restored to the person from whom it was taken.” 458 A2d at 822-823.

It is interesting to note that the above statutes use both the terms “return” and “restore.” The Maryland court in describing the statutes said:

“Subsections (b) and (c) deal exclusively with possessory rights separate and apart from any question of unconstitutional or otherwise unlawful searches. They are easy to understand and to apply.” 458 A2d 829.

7 In Morin v. Multnomah County, 18 Or 163, 22 P 490 (1889), the plaintiff sued to collect damages in the amount of $44 for being held in the county jail for a period of 14 days as a material witness without pay. The trial court entered a judgment for the plaintiff. This court reversed citing Daly v. Multnomah County, supra.

8 Hurtado v. United States, supra, 410 US at 589, n. 10 is as follows:

“ ‘[I]t may be a sacrifice of time and labor, and thus of ease, of profits, of livelihood. This contribution is not to be regarded as a gratuity, or a courtesy, or an ill-required favor. It is a duty not to be grudged or evaded. Whoever is impelled to evade or to resent it should retire from the society of organized and civilized communities, and become a hermit. He who will live by society must let society live by him, when it requires to.’ 8 Wigmore, Evidence §2192, 72 (McNaughton rev 1961).”

9 The Oregon Legislature has at least partially solved the witness fee problem raised in Daly v. Multnomah County, supra, to the extent that witnesses are now paid $5.00 per day and 8 cents per mile. ORS 44.410 and 44.430.

In State v. Apodaca, 252 Or 345, 449 P2d 445 (1969), the petitioner was a lawyer appointed to represent an indigent defendant. He spent 33 days in trial, eight other days away from his office, and 212 hours in additional trial preparation. The trial court awarded the petitioner the sum of $450 which was the maximum fee allowed by the existing statute. This court affirmed. The legislature has since amended the statute. See ORS 135.055.