State v. Stevens

833 P.2d 318 (1992) 113 Or. App. 429

STATE of Oregon, Respondent,
v.
Donald August STEVENS, Appellant.

D901370M; CA A66794.

Court of Appeals of Oregon.

Argued and Submitted February 3, 1992. Decided June 10, 1992.

John J. Tyner III and Tyner & Associates, Hillsboro, filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

ROSSMAN, Judge.

The question presented by this case is whether one can be convicted for carrying a concealed switchblade within one's own home. We conclude that the answer is "no."

On March 27, 1990, officers went to defendant's residence to execute an arrest warrant. Defendant's wife answered the door and indicated that he was not at home. The officers asked if they could search the residence, and she consented. Defendant was found hiding under a pile of clothes in an upstairs bedroom. He was frisked, then handcuffed and taken outside to a patrol car. Before placing him in the car, another search was conducted, and a switchblade knife was found in his back pocket. He had not told the officers that he was carrying the knife.

Defendant was charged with carrying a concealed weapon. ORS 166.240.^[1] At trial, an officer testified that the arrest for that offense was predicated on defendant's having carried the switchblade in his pocket both inside and outside the house. Defendant moved for acquittal on the grounds that ORS 166.240 is not applicable to a person who carries a concealed switchblade within the confines of his own home and that any other reading of the statute would violate Article I, section 27, of the Oregon Constitution.^[2] The motion was denied, and defendant was convicted.

In State v. Kessler, 289 Or. 359, 371, 614 P.2d 94 (1980), the Supreme Court held that possession of a billy club inside one's home is protected by the constitutional right to bear arms in defense of one's person and property. In State v. Blocker, 291 Or. 255, 260, 630 P.2d 824 (1981), the court determined that "mere possession" of a billy club, even outside the home, is protected by Article I, section 27. It noted that the language of that constitutional provision is "not qualified as to place * * *." 291 Or. at 259, 630 P.2d 824. In State v. Delgado, 298 Or. 395, 400, 692 P.2d 610 (1984), the court held that a switchblade is the type of weapon that comes within the meaning of "arms" in Article I, section 27, and, accordingly, that the "mere possession or carrying of" a switchblade cannot be absolutely proscribed by the legislature.

On the other hand, the state may regulate the manner in which persons exercise their right to bear arms

"when the unrestricted exercise of th[at] right poses a clear threat to the `interests and welfare of the public in general,' and the means chosen by the government body do not unreasonably interfere with the right." State v. Boyce, 61 Or.App. 662, 666, 658 P.2d 577, rev. den. 295 Or. 122, 666 P.2d 1344 (1983). (Citation omitted; emphasis supplied.)

Indeed, to the extent that ORS 166.240 prohibits an individual from carrying a concealed switchblade in public, we have held that it does not violate Article I, section 27, because that prohibition "does not impinge on the constitutional right to possess a switchblade knife." State v. Smoot, 97 Or.App. 255, 258, 775 P.2d 344 (1989).

Nonetheless, we conclude that, in the case at bar, ORS 166.240 was applied unconstitutionally. First, the simple act of carrying a concealed switchblade within one's own home is not the type of unrestrained rights-exercising that "poses a clear threat" to public safety and that can therefore be regulated. State v. Boyce, supra, 61 Or.App. at 666, 658 P.2d 577. Second, the state's interpretation would restrict the manner in which one could carry a legal weapon from room to room within one's home and would inhibit an act that is so intrinsic to ownership and self-defense that it would unreasonably interfere with the exercise of one's constitutional right to possess the switchblade. We therefore hold that ORS 166.240 applies only to the carrying of concealed weapons outside one's own home.

Having decided that the statute is inapplicable to defendant's possession and concealment of the knife within the confines of his home, we turn to whether defendant committed the crime of carrying a concealed weapon once he went outside in custody. The state argues that ORS 166.240 is applicable to "a person whose involuntary removal from his or her own premises is lawfully attempted or accomplished—as * * * in this case." Given the state's acknowledgement and the undisputed evidence that defendant was handcuffed and removed from his home by officers executing an arrest warrant, he did not voluntarily leave his home. By entering a home and taking a person outside, the state cannot transform a lawful private act into a public offense. To hold otherwise would allow oppressive governmental invasion of citizens' privacy and personal security. The trial court erred in denying the motion for acquittal.

Reversed.

NOTES

[1] ORS 166.240 provides, in part:

"(1) * * * [A]ny person who carries concealed upon the person any knife having a blade that projects or swings into position by force of a spring or by centrifugal force and commonly known as a switchblade knife, any dirk, dagger, ice pick, slung shot, metal knuckles, or any similar instrument by the use of which injury could be inflicted upon the person or property of any other person, commits a Class B misdemeanor."

[2] Article I, section 27, provides, in part:

"The people shall have the right to bear arms for the defence [sic] of themselves * * *."