DocketNumber: L91-0440CR; CA A75914
Judges: Deits, Riggs, Durham
Filed Date: 4/20/1994
Status: Precedential
Modified Date: 11/13/2024
Defendant was charged with first degree manslaughter and felon in possession of a firearm. ORS 163.118; ORS 161.610. The state appeals a pretrial order suppressing evidence. ORS 138.060(3). We reverse.
We take the facts from the trial court’s findings 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 June 14, 1991, Lake County Sheriff Reed and Deputy Cates, both of whom are also deputy medical examiners, went to defendant’s home in Paisley, Oregon, to investigate a reported suicide. They approached the residence, knocked and, after receiving no answer, opened the unlocked front door.
They entered as medical examiners to see if the victim was alive and to render aid, if necessary. They found the victim lying in a pool of blood in the kitchen. Reed checked the victim’s vital signs, which revealed that he was dead, while Cates made a cursory search for weapons, and found none. After two or three minutes they heard defendant and a companion in the back yard. Reed and Cates left the house through the kitchen door and met defendant.
Defendant, who was victim’s father and resided in the house, told Reed and Cates that he had found his son dead on the floor that morning. Defendant also said he had not touched the body and had not seen a weapon. Reed then asked if he could re-enter the house to use the phone, and defendant consented.
Reed then called Detective Sergeant Stroup and asked Stroup to prepare a search warrant to search defendant’s residence, and for, inter alia, hair, blood samples, fingernail scrapings and gunshot residue from defendant. Both the Lake County District Attorney and the Lake County Circuit Court judge were unavailable, so Stroup requested a search warrant from a Klamath County District Court judge who was acting as a Lake County Circuit Court judge pro tempore.
Later that same day, Officer Lee went to defendant’s home and requested that defendant accompany him to Lake District Hospital so that the search warrant could be executed. Lee did not have a copy of the search warrant with him and did not read or give a copy of the warrant to defendant, as required by ORS 133.575(3).
When defendant was released from the hospital the following morning, Lee met defendant, brought him to the sheriffs office and advised him of his Miranda
Defendant moved to suppress all evidence discovered as a result of the warrantless entries into his house. The trial court found that ORS 146.107
The trial court found that the officer’s re-entry in order to search was illegal. However, the trial court also found that Reed asked for, and received, consent before he reentered the house. When Reed re-entered the house, he stepped directly into the kitchen where the victim’s body lay on the floor. Once lawfully on the premises through defendant’s consent, any observations Reed made, without intruding further into defendant’s privacy, were permissible and could properly form the basis for a search warrant. State v. Paulson, 313 Or 346, 352, 833 P2d 1278 (1992). Those lawful observations would also have allowed Reed to seize any evidence in plain view. State v. Dowdy, 117 Or App 414, 419, 844 P2d 263 (1992).
ORS 146.103(3),
The dissent disagrees with our conclusion that ORS 146.103(3) authorized Reed to roll the body over and that the resulting observations were admissible. However, the dissent does agree that Reed, as a medical examiner, could “exercise control over” the dead body. Nevertheless, the dissent argues
“It is the location and behavior of the police officer, not the officer’s motivations, that determine the existence of a search for Article I, section 9, purposes.
“The Oregon Constitution does not require an inquiry into the observing officer’s thoughts to determine whether the officer’s conduct unconstitutionally violates a defendant’s Article I, section 9, rights.” 310 Or at 620-21. (Emphasis supplied.)
The dissent incorrectly concludes that, in this case, the exercise of control over a dead body was an unlawful search.
By way of cross-assignment of error, defendant contends that the warrant was invalid, because the issuing judge is a Klamath County District Court judge who did not have authority to issue a search warrant for execution in Lake County. We disagree. ORS 1.615(1) authorizes the Supreme Court to assign any regularly elected and qualified judge of the district court to serve as a judge pro tempore of any circuit court. ORS 1.615(3) provides that ajudge pro tempore has all the “powers and duties” of a regularly elected and qualified judge. In Supreme Court Order No. 90-168 the Supreme Court appointed all district court judges as judges pro tempore of the district and circuit courts of all other districts and counties. Therefore, the judge was within her authority as a judge pro tempore of the circuit court of Lake County to issue a warrant for execution in Lake County.
Defendant next contends that evidence seized pursuant to the warrant should be suppressed for violation of ORS 133.575(3). The trial court found that the executing officer failed to read the warrant to defendant and failed to give him a copy of the warrant. Nevertheless, the trial court also found that those failures did not invalidate the warrant because the omissions were insignificant under the circumstances of this case. We agree. Unless there is an express exclusionary remedy, a statutory violation in obtaining or executing a warrant does not require suppression of evidence. State v. Brock, 294 Or 15, 21, 653 P2d 543 (1982); State v. Cortman, 251 Or 566, 571, 446 P2d 681 (1968), cert den 394
Defendant’s final cross-assignment is that the court erred by not suppressing statements he made after the search of his home. Defendant contends that statements that follow an illegal search, even those made after a defendant’s voluntary waiver of Miranda rights, may be suppressed. See State v. Munro, 96 Or App 238, 244, 772 P2d 1353 (1989). Because the search was not illegal, defendant’s argument fails, and he offers no other argument to exclude the statements.
Reversed and remanded.
Reed’s testimony played a significant role in this case. Defendant’s motion to suppress this evidence was originally denied, based on Reed’s testimony that he had asked for, and received, defendant’s consent to search for a weapon when he re-entered the house. The trial court reversed its decision on the motion to suppress when Reed recanted his earlier testimony after the prosecutor brought to light earlier statements by Reed to a defense investigator indicating that Reed had never asked for consent to perform a search. However, at both hearings, Reed testified that he asked for and received consent to re-enter defendant’s house to use defendant’s phone.
ORS 133.575(3) provides:
“Except as provided in ORS 133.619 [execution of warrant authorizing mobile tracking device], before undertaking any search or seizure pursuant to the warrant, the executing officer shall read and give a copy of the warrant to the person to be searched, or the person in apparent control of the premises to be searched. If the premises are unoccupied or there is no one in apparent control, the officer shall leave a copy of the warrant suitably affixed to the premises.”
Miranda v. Arizona, 384 US 436, 88 S Ct 1602, 16 L Ed 2d 694 (1966).
ORS 146.107(1) provides:
“A medical examiner, deputy medical examiner or district attorney may enter any room, dwelling, building or other place in which the medical examiner, deputy medical examiner or district attorney has reasonable cause to believe*386 that a body or evidence of the circumstances of death requiring investigation maybe found.”
Defendant does not challenge that ruling.
OES 146.103(3) provides:
“A medical examiner, district attorney or deputy medical examiner shall take custody of or exercise control over the body, the effects of the deceased and any weapons, instruments, vehicles, buildings or premises which the medical examiner, district attorney or deputy medical examiner has reason to believe were involved in the death, in order to preserve evidence relating to the cause and manner of death.”
ORS 146.107 now provides, in part:
“(1) A medical examiner, deputy medical examiner or district attorney may enter any room, dwelling, building or other place in which the medical examiner, deputy medical examiner or district attorney has reasonable cause to believe that a body or evidence of the circumstances of death may be found.
“(2) If refused entry, the medical examiner, deputy medical examiner or district attorney may apply to any judge authorized to issue search warrants for an order to enter such premises, search for and seize a body or any evidence of the cause or manner of death.
“(3) Upon application supported by an affidavit setting forth facts and circumstances tending to show that a body or such evidence of death is in the place to be searched, the judge shall issue such order to enter and seize.
“(4) To preserve evidence, a medical examiner, deputy medical examiner or district attorney may:
“(a) Place under the custody or control of the medical examiner, deputy medical examiner or district attorney, or enclose or lock any room, dwelling, building or other enclosure for a period of not more than five days.
“(b) Rope off or otherwise restrict entry to any open area.
“(c) Forbid the entrance of any unauthorized person into the area specified under paragraphs (a) and (b) of this subsection.”