State v. Tanner

JONES, J.,

dissenting.

I dissent. This is a case which raises the question whether, under Article 1, section 9, of the Oregon Constitution, an individual’s proprietary rights under section 9 extend to objects an individual has stolen and then pledged to another to secure a loan.

The property in question was stolen by defendant from his employer and pledged to a third party to secure a loan. The employer’s property was recovered during a raid of the third persons’ home, where the property had been pledged. Defendant did not own that home, he did not live at that home, and he was not present at that home when it was searched or when the pledged property was seized by the police. The evidence seized should not have been suppressed.

Defendant’s motion to suppress was based solely on Article I, section 9, and he concedes that he lacked a constitutionally protected interest in the property under federal authorities. See, e.g., Rawlings v. Kentucky, 448 US 98, 100 S Ct 2556, 65 L Ed 2d 633 (1980); Rakas v. Illinois, 439 US 128, 99 S Ct 421, 58 L Ed 2d 387 (1978). On the other hand, the state concedes that the search was conducted under an invalid warrant but contends that defendant’s rights were not violated.

The trial court findings were both oral and written. After the motion to suppress hearing, from the bench the court made the following findings and conclusions:

“First of all, I’ve already spoken, I guess, as to a version of how I believe this all came to pass when Officer Scheeland was summoned to the house. We know there was a telephone call, I believe, to dispatch. Information was relayed to him that there had been a shooting at the residence. He went there and knocked on the door. There was no answer. He opened it and I believe my recollection is, he announced again who he was and there was a voice from inside, words to the effect that ‘I’ve been shot.’

“He rushed in. Of course, from the radio communication, he had reason to believe that someone had been shot and that had been confirmed by the voice.

“He found Mr. Best, who had been shot. He found Mr. Best, I believe, on the floor. He found Mrs. Best seated in a chair, obviously bleeding from a wound.

“He had some brief word with her and she fell from a chair.

“Gun in hand, he went quickly through the house. In one room, I believe referred to as the southwest bedroom, he saw in plain view marijuana, a substantial quantity, and the Court believes it was in plain view and it was seen by him in that initial search. I’ll call it a search, search for suspects and victims.

“That particular entry into the premises is permissible and not in violation of any statute in Oregon or the U.S. Constitution and what he saw was in plain view.

“Thereafter, other police officers arrived at the scene. What started out as an investigation for * * * an attempted murder, assault—analyzing blood samples, that sort of thing, went through a period of metamorphosis and became, frankly, a search for contraband, stolen property, and was in fact an impermissible crime scene search.

“Thereafter, a warrant, search warrant was obtained, first search warrant. Unfortunately, the probable cause was used in obtaining that search warrant; that is statements made by information given to Officer Vallery from other investigating officers was tainted by the illegal search that had been conducted and, therefore, the evidence that was seized, observed, whatever, as a result of that first search is to be suppressed.

“In that the second warrant is tied necessarily to the first * * * —anything that was seized, evidence that was obtained as a result of the second search is also to be suppressed.

<<* * * * *

“The remaining issue has to do with standing, whether or not Mr. Tanner can be heard to complain about this, what I’ve determined to be an illegal search and it’s a pretty close question that hasn’t really been—apparently hasn’t been decided here in the State of Oregon.

“I can recall my analysis earlier and I think in questioning Ms. Burris when she said that she didn’t believe he had any ground to complain at all, I kind of went through the analysis that I did here a few moments ago again and that’s if one has property and sells or gives it to another person and that person has it in his house and it’s contraband and it’s discovered by an unlawful search, then the first person, the giver so to speak, has no grounds to complain later on.

“On the other hand, the opposite is also obvious and that is if one has contraband in their own house and it’s discovered as a result of unlawful search then, obviously, you do.

“Here we have sort of a mixture involved. We have property and it’s believable and I find for the purpose of analysis in this case that it was taken by Mr. Tanner from his employer and you can even go so far to say it was impermissible taking, not to be allowed. It was taken by him, given to the Bests, not permanently, but for the purpose of securing an indebtedness and that’s what I’ve heard.

“We have to believe that had he not paid the debt, then they would have been allowed to keep it and so on. So in that respect, he has some rights akin to an owner in the property. He’s taken it not by right of the owner and given it to another with the idea that the other, the creditor, is going to be able to keep it if the debt isn’t paid. He certainly has an interest in that property. He has an interest in getting it back and replacing it so that he—so that it won’t be discovered.

“You would have to believe under those circumstances that he has a continuing interest in the property and he has a continuing interest in its privacy; that is that the Bests aren’t going to blab to everybody in town that he’s taken it from his employer and that they have it and it’s security for a loan or they are going to put it out on a sidewalk with a big sign saying, ‘We are holding this property as security for an indebtedness.’

“He obviously has interest in the privacy of that; yet he has a private interest or an interest in protecting the privacy of that particular property and a belief that the Bests’ residence where it’s stored is also to be protected.

“It’s not very artfully said, but it’s a rough analysis and my way of saying that I think he does have an expectation of privacy both in the Best residence, because it’s a place, it’s a depository of property that he still maintains some interest in.

“It’s been left there at his will by his voluntary act and he obviously has an interest and expectation of privacy insofar as both personal property, the cassettes, recording equipment and the place where it’s stored, the Best residence.

“Anyway, I think he does have standing. It may be a close question, but I think under an analysis that would be given by our Supreme Court, they would find that he does have the right of privacy insofar as the property.” (Emphasis added.)

Subsequently, the court made written findings as follows:

“1. That defendant gave Charles and Lori Best stolen property from Tower Records as collateral for a loan;

“2. That the aforementioned property was seized pursuant to a search warrant executed on May 5,1984 at the Best home;

“3. That the May 5 warrant was based upon information obtained during the execution of the search warrant at the Best home on May 2,1984;

“4. That the May 2,1984 warrant is invalid.”

concluding:

“[1.] That the defendant Tanner has an expectation of privacy in the Best residence by virtue of the fact that the home was the repository of defendant’s collateral;

“2. That defendant has an expectation of privacy in the property seized because, although stolen, he had pledged it as collateral;

“3. That as a result, defendant Tanner has standing to object to the search of the Best residence;

“4. That the property seized from the Best home on May 5,1984 is ordered suppressed.” (Emphasis added.)

The majority opinion contends that:

“Unlike the Fourth Amendment exclusionary rule, which has been predicated in recent years on deterrence of police misconduct, see, e.g., United States v. Leon, 468 US 897, 905-08, 104 S Ct 3405, 82 L Ed 2d 677 (1984), the exclusionary rule of section 9 is predicated on the personal right of a criminal defendant to be free from an ‘unreasonable search, or seizure,’ State v. Davis, 295 Or 227, 231-35, 666 P2d 802 (1984); State v. Laundy, 103 Or 443, 494, 204 P 958, 206 P 290 (1922) (in banc) (adopting the former Fourth Amendment rationale expressed in such early U. S. Supreme Court cases as Weeks v. United States, 232 US 383, 34 S Ct 341, 58 L Ed 652 (1914)). That is, the search or seizure must violate the defendant’s section 9 rights before evidence obtained thereby will be suppressed; a defendant’s section 9 rights are not violated merely by admitting evidence obtained in violation of section 9. The issue in this case is thus not whether the police violated section 9—that much is conceded—but whether the police violated defendant’s section 9 rights.” 304 Or at 315-16 (footnote omitted).

and continues:

“* * * [TJhere is no issue of defendant’s standing to challenge the unlawful search of the Best residence. A criminal defendant always has standing to challenge the admission of evidence introduced by the state. State v. McMurphy, 291 Or 782, 785, 635 P2d 372 (1981). The question whether a defendant’s personal rights were violated by an unlawful search or seizure is often mislabeled a question of ‘standing,’ but the question goes to the merits of a motion to suppress. The term ‘standing’ should be used only in the narrow sénse of capacity to make a legal challenge.” Id.

concluding:

“* * * [Although the Court of Appeals’ decision was based on its conclusion that ‘a thief has no protected interest in stolen property,’ 82 Or App at 300, the character of the effects given by defendant to the Bests, and in particular whether they were stolen, is irrelevant in this instance. * * *” Id.

The majority, in asserting that the purpose of the exclusionary rule is to protect the personal rights of an accused, attempts to find a parallel between this holding and decisions of the United States Supreme Court. This attempt is predicated on pure dictum in State v. McMurphy, 291 Or 782, 785, 635 P2d 372 (1981), where this court, in citing United States Supreme Court decisions, concluded:

“* * * [T]he deterrent effect on future practices against others, though a desired consequence, is not the constitutional basis for respecting the rights of a defendant against whom the state proposes to use evidence already seized. In demanding a trial without such evidence, the defendant invokes rights personal to himself.

“This, at least, is the rule in the federal courts. See United States v. Salvucci, 448 US 83, 100 S Ct 2547, 65 L Ed 2d 619 (1980), tracing its antecedents. * * *” (Footnote omitted.)

The majority then cites State v. Davis, 295 Or 227, 666 P2d 862 (1983), for the same proposition. Again, the majority opinion in Davis starts out with an attempt to trace the purposes for the federal exclusionary rule as expressed in Weeks v. United States, 232 US 383, 34 S Ct 341, 58 L Ed 652 (1914), claiming that the purpose for the exclusionary rule as expressed in Weeks was to protect some personal right and that our early case of State v. Laundy, 103 Or 443, 204 P 958, 296 P 290 (1922), adopted the exclusionary rule for the same reasons as expressed by the United States Supreme Court in Weeks. This historical portrayal in Davis was inaccurate, being based on McMurphy’s faulty premise.

There is no language in Weeks that the exclusionary rule is predicated on the personal right of a criminal defendant to be free from an unreasonable search and seizure. In Weeks the defendant had petitioned for the return of papers seized in violation of the Fourth Amendment. The central holding of the case was that upon the defendant’s motion the trial court should have returned all wrongfully seized papers. If the Weeks decision is to be seen as a discussion of how an individual’s rights can be protected by the courts, the remedy created by this decision should be limited to the Supreme Court’s order to return the wrongfully seized evidence.

On the question of the defendant’s motion to exclude the evidence from the trial, the Weeks court had little to say. The only oblique reference to an exclusionary rule comes when the Court points out that:

«* * * tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures * * * should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.

“* * * [T]he 4th Amendment was intended to secure the citizen in person and property against unlawful invasion of the sanctity of his home by officers of the law, acting under legislative or judicial sanction. This protection is equally extended to the action of the government and officers of the law acting under it. To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the' Constitution, intended for the protection of the people against such unauthorized action.” Weeks, 232 US at 394.

I find the origins of the exclusionary rule in this discussion of the courts’ duty to protect the rights of the people by refusing to sanction unlawful acts, and not in the separate question before the Weeks court concerning protecting an individual’s rights by returning wrongfully seized property.

Prior interpretations of Weeks in Oregon have not offered different conclusions. There is no language in State v. Laundy, supra, that predicates the exclusionary rule of Article I, section 9, on a different interpretation of Weeks. Indeed, the Laundy court, citing Weeks, holds that whenever a defendant discovers that evidence is unlawfully seized “he is * * * entitled at that time to an order of the court directing a return of the property.” Laundy, 103 Or at 494. While such an order, vindicating a defendant’s rights, might have the same effect as contemporary courts’ excluding without returning wrongfully seized evidence, such an order has a different purpose than does the alternative holding in Weeks establishing an exclusionary rule as a means to prevent the courts’ sanctioning or encouraging unlawful police behavior.

The first announcement of the exclusionary rule in Weeks recognized that it was a necessary part of the guarantees of the Fourth Amendment. Nevertheless, the exclusionary rule did not spring fully formed from the mind of the Court. As with most other constitutional principles, it only gradually took on a fully defined form as it was defined and tested in different cases. The culmination of this development and refinement is the present deterrent rationale for the exclusionary rule. The Court, through the years of initial decisions, has come to recognize that each individual violation of constitutional rights must be made ineffective because to fail to do so would have the effect of encouraging further violations.

In none of the early opinions did the United States Supreme Court find the “personal rights” theory discovered by this court in McMurphy and Davis, nor did any of these cases expressly set forth any “deterrence” rationale for the exclusionary rule. As Yale Kamisar observes:

“In the thirty-five years following Weeks the Court had little to say about the rationale of the exclusionary rule and absolutely nothing to say about the relative merits of the exclusionary rule and alternative methods of enforcing the fourth amendment. Often the Court remarked only that the evidence had to be excluded because it was obtained by violating rights secured to the defendant under the fourth and/or fifth amendments or because the use of the evidence would violate one or the other or both of these amendments. Sometimes the Court simply declared that a conviction based on evidence acquired by a violation of the fourth amendment ‘cannot stand’ or that the use of such evidence in a criminal prosecution cannot be ‘tolerated under our constitutional system.’ ” Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a “Principled Basis” Rather Than an “Empirical Proposition16 Creighton L Rev 565, 601-02 (1983) (footnotes omitted).

The so-called deterrence theory first surfaced on the federal level in Wolf v. Colorado, 338 US 25, 28, 93 L Ed 1782 (1949), where Justice Frankfurter first summarized Weeks:

“In Weeks v. United States, [supra], this Court held that in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure. This ruling was made for the first time in 1914. It was not derived from the explicit requirements of the Fourth Amendment; it was not based on legislation expressing Congressional policy in the enforcement of the Constitution. The decision was a matter of judicial implication. * * *”

After this summary, the Court declared that the protections against unreasonable searches and seizures afforded by the Fourth Amendment were extended to the states by the Due Process Clause of the Fourteenth Amendment. The Court refused, however, to extend the exclusionary rule to the states as a part of the Due Process requirements of the Fourteenth Amendment. The reasoning of the Court gives an insight into the development of the deterrent theory and its strengths over a rationale based on individual rights:

“The jurisdictions which have rejected the Weeks doctrine have not left the right without other means of protection. Indeed, the exclusion of evidence is a remedy which directly serves only to protect those upon whose person or premises something incriminating has been found. We cannot, therefore, regard it as a departure from basic standards to remand those who emerge scathless from a search, to the remedies of private action and such protection as the internal discipline of the police, under the eyes of an alert public opinion, may afford. Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State’s reliance upon other methods which, if consistently enforced, would be equally effective. * * *” Id. at 30-31.

Upon further examination the Court determined that focusing on the individual’s other remedies did not serve to protect the public’s interest in the Fourth Amendment. Not only did such other remedies fail to deter, they also did not preserve the basic freedoms protected by the Fourth Amendment.

In Elkins v. United States, 364 US 206, 217, 80 S Ct 1437, 4 L Ed 2d 1669 (1960), Justice Potter Stewart delivered the opinion of the Court, emphasizing that “[t]he rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” In the landmark case of Mapp v. Ohio, 367 US 643, 815 S Ct 1684, 6 L Ed 2d 1081 (1961), Justice Clark, speaking for the Court, noted the contradiction contained in Wolf. The Court noted that the federal rule has been consistent since Weeks. “This Court has ever since required of federal law officers a strict adherence to that command which this Court has held to be á clear, specific, and constitutionally required—even if. judicially implied—deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to a ‘form of words.’ ” Id. at 648 (quoting Silverthorn Lumber Co. v. United States, 251 US 385, 392, 40 S Ct 182, 64 L Ed 319 (1920)).

Because of this inconsistency, the Mapp Court overturned the part of Wolf which refused to apply the exclusionary rule to the states. “To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule ‘is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.’ ” Id. at 656 (quoting Elkins).

Again, in Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968), Chief Justice Warren spoke for the Court, stressing that “[e]ver since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct. See Weeks v. United States, [supra]. Thus its major thrust is a deterrent one.” Id. at 12.

To be sure, other reasons have been stated by the Supreme Court for the exclusionary rule, such as a reference in Elkins to protect “the imperative of judicial integrity,” namely, that the courts not become “accomplices in the willful disobedience of a Constitution they are sworn to uphold.” 364 US at 222, 223 (quoting McNabb v. United States, 318 US 332, 345, 63 S Ct 608, 87 L Ed 819 (1942)).¹ None of these cases can be read to suggest that one of several purposes of the exclusionary rule is predicated on a personal right of a criminal defendant to be free from an unreasonable search or seizure.

Indeed, the Court has explicitly rejected the idea that exclusion is necessary to. prevent further violations of an individual’s rights. In United States v. Calandra, 414 US 338, 354, 94 S Ct 613, 38 L Ed 2d 561 (1974), the Court stated that “[t]he wrong condemned is the unjustified governmental invasion of these areas of an individuál’s life. That wrong, committed in this case, is fully accomplished by the original search without probable cause.” Subsequent use of the evidence “work[s] no new Fourth Amendment wrong.” “In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” Id.

If taken out of the context of the case, some language in United States v. Salvucci, 448 US 83, 100 S Ct 2547, 65 L Ed 2d 619 (1980), might be interpreted to suggest that the exclusionary rule is a personal right. Because Salvucci was the case relied upon by this court in McMurphy as authority for converting the purpose of the exclusionary rule from its deterrent effect on others to a personal right of a defendant, a proper view of that case is important. Salvucci concerned a defendant’s opportunity to benefit from the operation of the exclusionary rule, what the United States Supreme Court refers to as “standing.” It was in this context that the Supreme Court in Salvucci offered what is a small piece of historical dictum suggesting that “[t]he exclusionary rule is one form of remedy afforded for Fourth Amendment violations.” 448 US at 86. Given the nature of Salvucci, this language should be read as a rather inartfully worded phrase in a discussion of a defendant’s opportunity to benefit from the exclusionary rule, rather than the construction of a new and different justification for the exclusionary rule. The Court’s focus in recent years, including the years that McMurphy and Davis were written, has been almost exclusively upon the deterrence function—and the majority opinion admits as much. 304 Or at 315.

In recent years, the debate concerning the exclusionary rule in the United Sates Supreme Court has been heated and wide-ranging. “Except for the unanimous decision written by Mr. Justice Day in Weeks v. United States, [supra], the evolution of the exclusionary rule has been marked by sharp divisions in the Court. Indeed, Wolf, Lustig [c. United States, 338 US 74, 69 S Ct 1372, 93 L Ed 1819 (1949)], Rochin [v. California, 342 US 165, 72 S Ct 205, 96 L Ed 183 (1952)], Irvine [v. California, 347 US 128, 74 S Ct 381, 98 L Ed 561 (1954)], Elkins, Mapp, and Calandra produced a combined total of 27 separate opinions or statements.” United States v. Janis, 428 US 433, 446 n 15, 96 S Ct 3021, 49 L Ed 2d 1046 (1976).

After much debate, the exclusionary rule has sharpened in focus because the Court has settled on the basic premise of the debate—that the purpose is primarily to deter or discourage governmental actions which violate constitutional rights. The debate has now concentrated on how best the Court can accomplish this purpose. This concentration has not been the result of the opinions of any one Justice, nor of one faction. All the members of the Court have recognized that the deterrent purpose of the rule is the beginning point of the Court’s discussion and application of the rule. In addition to the examples given above, the following further illustrate this conclusion: United States v. Leon, 468 US 897, 916-17, 104 S Ct 3405, 82 L Ed 2d 677 (1984) (White, J.) (“the exclusionary rule is designed to deter police misconduct”); United States v. Janis, supra at 446 (Blackmun, J.) (“The Court, however, has established that the ‘prime purpose’ of the rule, if not the sole one, ‘is to deter future unlawful police conduct.’ ”).

The vast majority of the states which have addressed the purpose for the exclusionary rule have stated that the rationale for the exclusionary rule is to deter police misconduct. See, e.g., Taylor v. State, 399 S2d 881 (Ala 1981); State v. Alfaro, 127 Ariz 578, 623 P2d 8 (1981); Harrington v. State, 287 Ark 228, 697 SW2d 899 (1985); Lockridge v. Superior Court, 3 Cal 3d 166, 474 P2d 683, 89 Cal Rptr 731 (1970); People v. Briggs, 709 P2d 911 (Colo 1985); State v. Zindros, 456 A2d 288 (Conn 1983); State v. Deputy, 433 A2d 1040 (Del 1981); State v. Le Croy, 461 S2d 88 (Fla 1985); People v. White, 117 Ill 2d 194, 512 NE2d 677 (1987); Gajdos v. State, 462 NE2d 1017 (Ind 1984); State v. King, 256 NW2d 1 (Iowa 1977); Divine v. Groshong, 235 Kan 127, 679 P2d 700 (1984); State v. Matthieu, 506 S2d 1209 (La 1987); State v. Bleyl, 435 A2d 1349 (Me 1981); Commonwealth v. Lahti, 398 Mass 829, 501 NE2d 511 (1986); People v. Chapman, 425 Mich 245, 387 NW2d 835 (1986); State v. Conaway, 319 NW2d 35 (Minn 1982); Stringer v. State, 491 S2d 837 (Miss 1986); State v. Poit, 216 Neb 635, 344 NW2d 914 (1984); Taylor v. State, 547 P2d 674 (Nev 1976); State v. Spero, 117 NH 199, 371 A2d 1155 (1977); Delguidice v. New Jersey Racing Comm., 100 NJ 79, 494 A2d 1007 (1985); People v. Adams, 53 NY2d 1, 422 NE2d 537, 439 NYS2d 877 (1981); State v. Saavedra, 396 NW2d 304 (ND 1986); State v. Burkholder, 12 Ohio St 3d 205, 466 NE2d 176, cert den 435 US 947 (1984); Turner v. City of Lawton, 733 P2d 375 (Okla 1986); State v. von Bulow, 475 A2d 995 (RI 1984); State v. Sachs, 264 SC 541, 216 SE2d 501 (1975); State v. Habbena, 372 NW2d 450 (SD 1985); State v. Jennette, 706 SW2d 614 (Tenn 1986); Self v. State, 709 SW2d 662 (Tex Crim App 1986); State v. Harbaugh, 132 Vt 569, 326 A2d 821 (1974); Walls v. Commonwealth, 2 Va App 639, 347 SE2d 175 (1986); Fondren v. State, 724 P2d 461 (Wyo 1986).²

Other courts, or some of these same courts at different times, have announced that the exclusionary rule serves additional purposes, but not as a personal right of a criminal defendant. State v. Malkin, 722 P2d 943 (Alaska 1986) (deterrence and preservation of judicial integrity); People v. Cahan, 44 Cal 2d 434, 282 P2d 905 (1955) (deter and relieve the courts from being compelled to participate in such illegal conduct); State v. Le Page, 102 Idaho 387, 630 P2d 674 (1984) (has primary purposes of deterrence and preserving judicial integrity); State v. Campbell, 294 NW2d 803 (Iowa 1980) (to deter and to preserve judicial integrity); State v Davis, 375 S2d 69 (La 1979) (the concept that courts will not encourage, participate or condone illegal acts is a subordinate purpose to deterrence); Commonwealth v. Lett, 393 Mass 141, 470 NE2d 110 (1984) (deterrence, dissociation of the courts, and preclusion of benefit to prosecution); State v. Bonds, 98 Wash 2d 1, 653 P2d 1024, cert den 464 US 831 (1982) (rule has three purposes: to protect the privacy interests of the individual from unreasonable arrest, to deter police from unlawfully obtaining evidence, and to preserve the dignity of the judiciary).

In addition to McMurphy and Davis discussed by the majority, only two other courts have been discovered which suggest that the purpose of the exclusionary rule is to prevent the courts from violating the defendant’s personal rights: see State v. Johnson, 716 P2d 1288 (Idaho 1986); and State v. Coburn, 530 P2d 442 (Mont 1974).

Contrary to the suggestion by the majority that the rationale for the exclusionary rule announced in McMurphy has been the law in Oregon since Laundy, there are numerous cases which recognize the deterrent purpose of the exclusionary rule under the Oregon Constitution. In State v. Valentine/Darroch, 264 Or 54, 67, 504 P2d 84, cert den 412 US 948 (1972), the defendants contended that the police violated their rights against unreasonable searches and seizures under Article I, section 9, of the Oregon Constitution as well as under the Fourth and Fourteenth Amendments to the federal constitution. Justice Denecke, writing for the majority of the court, observed that “[t]he reason for the federal rule excluding evidence obtained in violation of the Federal Constitution was settled in Linkletter v. Walker, 38 US 618, 85 S Ct 1731, 14 L Ed 2d 601 (1965): ‘* * * the purpose was to deter the lawless action of the police and to effectively enforce the Fourth Amendment.’ ” In answer to the defendants’ attack, this court refused to take judicial notice that law enforcement officers were perniciously disobeying Oregon’s knock and announce statute, and therefore implicitly found no need to exclude evidence based on a deterrence theory. In State v. Nettles, 287 Or 131, 597 P2d 1243 (1979), the defendant depended upon Article I, section 9, of the Oregon Constitution to challenge a police search and seizure. Justice Holman, writing for this court, quoted extensively from United States v. Calandra, supra, and cited other cases from the United States Supreme Court and the Ninth Circuit while holding that Oregon’s exclusionary rule is “designed to deter future unlawful police conduct and that the rule was not for the purpose of compensating for the unlawful invasion of a person’s privacy.” In State v. Quinn, 290 Or 383, 397, 623 P2d 630 (1981), this court held that the federal rule was adequate for Oregon’s purposes, citing Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441 (1963). This court further held that “[t]he same policy is embodied in ORS 133.683, which allows such evidence if ‘the court finds that exclusion of such evidence is not necessary to deter violations of’ the search warrant statutes.” In State v. Holt, 291 Or 343, 351, 630 P2d 854 (1981), this court stated that “[t]he purpose of exclusion is to deter unlawful police conduct by excluding evidence unlawfully obtained from the person against whom it is to be used.”

Although in State v. Valdez, 277 Or 621, 629, 561 P2d 1006 (1977), the defendants argued that the search and seizure was a violation of ORS 131.615, this court did not limit its discussion of the exclusionary rule to the statute because

“the purpose of the present statute is to protect interests of the kinds which are protected by the Fourth Amendment to the United States Constitution and by Art. I, [sec] 9, of the Oregon Constitution. So far the only practical method which has been devised to protect rights of this kind is the exclusion of the evidence which is the fruit of violation.”

In deciding a defendant’s rights under Article I, section 9, of the Oregon Constitution, this court in State v. Warner, 284 Or 147, 166, 585 P2d 681 (1978), cited Valdez as authority for suppressing the unconstitutionally seized evidence.

These decisions from Oregon and from other courts across the nation demonstrate that the exclusionary rule is properly explained as a means to preserve the freedoms guaranteed by Article I, section 9, because it reduces or removes incentives to violate the restrictions of section 9.

It is true that talk of deterrence encourages some to think in terms of empirical evaluations of the exclusionary rule. To the extent that the term deterrence suggests that its advocates must prove actual instances where the police have not conducted a search or seizure because the evidence would be excluded, it is unfortunate that this term has become the short-cut means of expressing a rationale for the exclusionary rule which does not depend on an empirical demonstration of its validity. Allowing unconstitutionally seized evidence into court would be an incentive for the police to ignore the limitations of Article I, section 9, because it would tell them that these limitations have no practical effect.³ The exclusion of this evidence is a disincentive to the police. The exclusionary rule does not depend on empirical proof that it prevents certain types of behavior. Each act of exclusion is a reaffirmation of the limits which section 9 imposes on law enforcement and, as such, serves as a message that future violations will be treated in the same manner.

The exclusionary rule preserves the principles of section 9 by inhibiting “[t]he tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures.” Weeks, 232 US at 394. It is designed to protect society’s interest by discouraging future violations of section 9. The majority and I agree that an individual’s rights under section 9 deserve diligent protection by the courts of Oregon. However, because I feel that the exclusionary rule has an independent purpose for the courts and for society, I reject the majority’s relegation of the exclusionary rule to a position as one of several ways that an individual can assert personal rights under section 9.

Insofar as the majority has looked to the decisions of the United States Supreme Court for parallels to justify Oregon’s exclusionary rule, I believe they misread those cases. Further, in fashioning a new justification for Oregon’s exclusionary rule, I believe that the majority has done a disservice to the exclusionary rule by diluting its importance to the people of Oregon.

In attempting to justify the conclusion that the exclusionary rule protects a defendant’s personal rights, the majority relies on Weeks, which contains no such language, as being adopted by this court in Laundy, which contains only a reference to Weeks, as the basis for the dicta found in McMurphy and adopted in Davis. The whole theory that Oregon’s exclusionary rule is somehow predicated on a personal right of a defendant simply falls for lack of any foundation. Any opinion on the merits of this case should be based essentially on the deterrent theory of the exclusionary rule as opposed to a personal right. If the court wishes to pursue a “personal right” justification, it steps into the trap of viscerating the reason for an exclusionary rule. Personal rights may be vindicated with state or federal civil tort actions.

The majority confuses the violation of rights giving rise to the operation of the exclusionary rule with the purpose of the rule. Certainly the exclusionary rule becomes operative when a defendant’s rights have been violated, but it is not designed as a defendant’s remedy for that violation. If it is seen as a remedy for defendants, it will be too easy to suggest that because a defendant has other remedies society can dispense with the inconvenience of the exclusionary rule, at least in some particular case where it will not provide any effective relief for a given defendant.⁴

The intent of Article I, section 9, is to preserve individual rights by ensuring that police searches and seizures are subject to the prior approval of an independent magistrate. While I do not mean to imply that this result is intended, I am concerned that the majority’s rationalization of the exclusionary rule will lead to suggestions that the exclusionary rule should not operate when there are “adequate” alternatives.

I reject the majority’s “personal rights” purpose for the exclusionary rule and conclude that a defendant is, at best, an incidental beneficiary when exclusion occurs for the purpose of deterring the frequency of future violations. I have dwelt in detail on the question because of the majority’s misinterpretation of prior Oregon caselaw and parallel federal decisions. I do not wish future courts to question the validity of the exclusionary rule because it is now based on a misreading of previous decisions. Because these prior decisions are at least subject to differing interpretations, I take the majority to be using these cases as illustrations which they read to be examples of the remedial character of the exclusionary rule in operation.

I now turn to the merits of this case. William Pitt, in his oft-quoted remarks, stated:

“The poorest man may, in his cottage, bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.”⁵

This grand statement is equally applicable to people in this state being protected from oppressive governmental action. However, in this case, the third persons’ house was not defendant’s “cottage,” the “government” did not enter defendant’s premises and defendant did not own the property. In fact, as the trial judge found, defendant stole the property.

I agree that this defendant has “standing,” as defined by the majority, to challenge this search and seizure. Along with the majority, I would depart from federal precedent, e.g., Rawlings v. Kentucky, supra, in holding that where a defendant with some legitimate claim to possession of property entrusts that property to another, that defendant retains a right against an unlawful search which uncovers the property.

I dissent because the facts in this case demonstrate that defendant did not have any protected interest in the things seized. If he had been the lawful owner of the property in question, but had bailed it or pledged it to the third persons, I agree that he would have a right to object to illegal governmental interference with his proprietary interest. Similarly, if he had kept stolen property in his own home, the government could not, without a valid warrant or exigent circumstances, enter his home to search for or seize the property because of his privacy and proprietary interest in his home. But the trial court found that defendant had stolen the property from his employer and pledged it to a third person who in turn stored it on premises where defendant had no proprietary or privacy right.

A-thief has no privacy interest in stolen property. State v. Quinn, 290 Or 383, 393, 623 P2d 630 (1981); Williams v. United States, 323 F2d 90 (10th Cir 1963); State v. Pokini, 367 P2d 499 (Hawaii 1961); Skope v. State, 18 Md App 472, 307 A2d 730 (1973); Palmer v. State, 14 Md App 159, 286 A2d 572 (1972); Slyter v. State, 246 Miss 402, 149 S2d 489 (1963); Harper v. State, 84 Nev 233, 440 P2d 893 (1968); State v. Edmonds, 462 SW2d 782 (Mo 1971). Cf. Cotton v. United States, 371 F2d 385 (9th Cir 1967); Simpson v. United States, 346 F2d 291 (10th Cir 1965) (which, however, the United States Supreme Court labeled “inexplicable” decisions. Rakas v. Illinois, supra, 439 US at 141 n 9). Because defendant had no legitimate right to the property or to the premises where the property was seized, his rights under Article I, section 9, of the Oregon Constitution were not violated and the evidence was improperly suppressed. I would not reverse the decision of the Court of Appeals.

Therefore, I reject any association with the majority which, in sum, tells the public that a thief can steal property from his employer, pledge it for money and, by placing it in the hands of a third party, then be allowed to claim that his own personal and property rights have been violated. To state the proposition is to refute it.

1 This same purpose is also recognized by the Court in Mapp, 367 US at 659, and Terry, 392 US at 12-13. A further purpose may be expressed by the dissent in United States v. Calandra, 414 US 338, 357, 94 S Ct 613, 38 L Ed 2d 561 (1974) (Brennan, J., dissenting), that “of assuring the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.”

2 These cases are included here not because they are binding on this court but because they represent the independent reasoning of other courts. Unlike lower federal courts, the United States Supreme Court and these state supreme courts have the opportunity to examine the exclusionary rule without being bound by the holdings of a higher court. Whether these courts engaged in a review under their own constitutions or adopted the reasoning of other courts, their decisions are instructive because they are an indication that a majority of courts accept the deterrence rationale as an adequate justification for the exclusionary rule.

3 See Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a “Principled Basis" Rather Than an “Empirical Proposition”?, 16 Creighton L Rev 565, 645 (1983).

4 For a preview of these arguments, see the suggestions in Chief Justice Burger’s dissent in Bivens v. Six Unknown Named Agents, 403 US 388, 91 S Ct 1999, 29 L Ed 2d 619 (1971) (Burger, C. J., dissenting). For the problems with such suggestions and an affirmation of the value of the exclusionary rule as a deterrent, see 1 LaFave, Search and Seizure 31-43 (2d ed 1987).

Some recent critics of the deterrence theory have suggested that its proponents are actually secret opponents of the exclusionary rule. See, e.g., Morris, The Exclusionary Rule, Deterrence and Posner's Economic Analysis of Law, 57 Wash L Rev 647, 650 (1982); Kamisar, supra n 2.

I question the suggestion that all advocates of a deterrence rationale seek to weaken the exclusionary rule, because I cannot see how, for example, Mapp v. Ohio, 367 US 643, 815 S Ct 1684, 6 L Ed 2d 1081 (1961), could be regarded as opposing the exclusionary rule because it stated that the exclusionary rule is a “deterrent safeguard.” I think that a better explanation of why some current attacks on the exclusionary rule couch their attack in terms of deterrence is, that while the critics speak of deterrence, they do this only because that is the language they are forced to use.

In reality those who seek to discard the exclusionary rule are suggesting that the exclusionary rule is merely an easily discarded individual remedy by again raising the argument of alternative individual remedies which the United States Supreme Court rejected in Mapp v. Ohio, supra. Based on their practical experiences, other courts have also rested their acceptance of the deterrence rationale on the failure of these alternatives actually to serve as a protection of society’s rights to be free of unreasonable searches and seizures. “So far the only practical method which has been devised to protect rights of this kind is the exclusion of the evidence which is the fruit of violation.” State v. Valdez, 277 Or 621, 626, 561 P2d 1006 (1977); “[Ojther remedies have completely failed to secure compliance with the constitutional provisions.” People v. Cahan, 44 Cal 2d 434, 282 P2d 905, 911 (1955).

5 Parliamentary History 1401-03, Vol XV (Correspondence of William Pitt 288) (as quoted by Lasson, The History and Development of the Fourth Amendment to the United States Constitution 49-50 (1937)).