State v. Brock

RICHARDSON, J.

Defendant appeals from a judgment of conviction for theft in the first degree (ORS 164.055) entered following a jury verdict. He assigns as error the trial court’s denial of his motion for judgment of acquittal on grounds of insufficient evidence, the failure of the court to give certain requested instructions and the denial of his motion to suppress evidence seized in a nighttime search of his residence pursuant to a warrant. Additionally, he claims that the cumulative effect of certain alleged prosecutorial misconduct during the trial resulted in a denial of his due process rights. We affirm.

In material part, the indictment alleged that the defendant

"* * * did unlawfully and knowingly commit theft of one (1) General Electric brand washer, one (1) General Electric brand dryer, one (1) General Electric brand refrigerator, one (1) carpet marked 'Golden West,’ and one (1) full length mirror of the total value of more than Two Hundred Dollars ($200.00), by withholding said property from Barrett Mobile Home Transport, Inc., the owner thereof, * * *.”

The victim, Barrett Mobile Home Transport, Inc. (Barrett), maintained a lot for storage of fully equipped mobile homes which were awaiting transport. An employee of Barrett testified that from December, 1978, through February, 1979, several of the mobile homes were broken into and numerous items removed. The stolen items included several General Electric refrigerators varying in size from 14.2 to 16.5 cubic feet with a replacement cost of approximately $450 each. A General Electric washer and dryer in their original cartons were taken and had a replacement cost of $300 each. Also taken was a large roll of special order carpet marked "Golden West” and containing an individual run number, and two full length mirrors with a replacement cost of $75 each.

Dale Morford, a witness for the state under a grant of immunity, testified that he and defendant broke into mobile homes stored on the Barrett lot on several occasions during the December to February period. On one occasion they removed a General Electric refrigerator. In the process of loading the refrigerator in defendant’s van it was damaged with a crease down one side. On other occasions they removed a General Electric washer and a dryer still in the original cartons, a large roll of carpet and two full length mirrors. The refrigerator, washer and dryer and one of the mirrors were taken to defendant’s residence where they were installed for use. A portion of the large carpet roll was cut and installed in a bedroom there. Morford testified he had been in defendant’s home a number of times following the thefts and had observed the items in use there. He identified the items after they were removed from defendant’s home by the police, pursuant to the warrant, as those taken from the mobile homes and used in defendant’s residence.

Defendant was arrested pursuant to an arrest warrant at approximately 9 p.m. on June 29, 1979. On that same day a police officer submitted an affidavit for a search warrant to search his residence. It was executed shortly after 10 p.m. on June 29, 1979. The police seized a 14.2 cubic foot General Electric refrigerator with a crease on one side, a General Electric washer and dryer, a piece of carpet and one full length mirror.

Defendant’s first assignment contends that his motion for judgment of acquittal should have been granted. His principal contention under this assignment is that there was not sufficient evidence identifying the items seized in defendant’s home as the property stolen from Barrett. His first argument is that there was no evidence that the serial numbers on the appliances in defendant’s home matched serial numbers of appliances stolen from the mobile homes. The state did not produce serial numbers of the stolen appliances. He cites State v. Oster, 232 Or 396, 376 P2d 87 (1962), and contends the serial numbers are the best evidence of identification and the failure of the state to identify the appliances by serial numbers is fatal.

In Oster, the defendant was charged in Marion County with receiving and concealing check blanks stolen from the Pepsi Cola Bottling Company in Multnomah County. An accomplice testified that she observed defendant and certain other individuals hide a purse under a log in Marion County. The witness later led the police to the hidden purse. A police officer testified the purse contained Pepsi Cola Bottling Company check blanks. The checks were not further identified nor were they offered in evidence. The court held the evidence was insufficient to identify the checks in the purse as those stolen from the bottling company. The court noted that the evidence showed that each of the checks stolen bore the name and address of the company and a serial number and said that if the checks in the purse were among the checks reported stolen that fact would have appeared from a comparison of the serial numbers. It concluded:

"* * *That rule [the rule in larceny cases] is that identification of property found in the possession of the accused as that stolen in the theft with which he is charged must be by the most direct and positive testimony of which the case is susceptible * * (Citations omitted.) 232 Or at 403.

We do not read Oster as saying as a matter of law that if serial numbers are arguably available identification by comparison of serial numbers is the only proof which will be sufficient. The inquiry is whether the evidence viewed in a light most favorable to the state is sufficient for the jury to find beyond a reasonable doubt that the items in defendant’s possession were stolen from the named victim. In the case under review, Morford positively identified the appliances taken from defendant’s residence as those he and defendant had stolen from Barrett. We conclude there was sufficient evidence.

Defendant’s second argument under this assignment is that if serial number identification was not required, there was still insufficient evidence to establish that the appliances were stolen from Barrett. He contends the Barrett employee was unable to identify the property seized from defendant’s residence as that taken from the mobile homes. The witness was only able to identify the appliances as of the same brand and color taken from the mobile homes. However, the testimony of that witness in conjunction with the testimony of Morford was sufficient to identify the seized property as that stolen from Barrett.

Our conclusion that the evidence sufficiently identified the appliances disposes of defendant’s final argument in support of his motion that, absent the appliances, the remaining property was not valued in excess of $200 as required to sustain a conviction for theft in the first degree.

Defendant’s second assignment of error is that the court improperly declined to give two of his requested instructions. In substance, the two instructions were to the effect that if the state offers weaker and less satisfactory evidence when more satisfactory evidence is available, the evidence offered should be viewed with suspicion. The requested instructions, when read together, limited application of the principle to evidence submitted by the state. The instructions are based on ORS 17.250(7), which requires the jury to be instructed on all proper occasions:

"That if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust.”

The court declined to give the instructions because defendant did not testify, the instructions would not apply to him, and it would not give instructions that did not apply to both parties. An instruction pursuant to ORS 17.250(7) should be avoided in a criminal case unless limited to evidence offered by the state. State v. Holleman, 225 Or 7, 357 P2d 264 (1960). When a defendant in a criminal case requests such an instruction, it ought to be given if otherwise appropriate. To be appropriate, there must be evidence to support the instruction. If there is no basis in the record to conclude the state had evidence not produced which was arguably stronger than the proof offered, then it is not error to refuse the instruction. State v. Harwood, 45 Or App 931, 609 P2d 1312, rev den 289 Or 337 (1980); State v. Gwyther, 4 Or App 473, 479 P2d 248, rev den (1971).

Defendant argues that the instructions were justified because of the state’s failure to produce a record of the serial numbers on the appliances stolen from the mobile homes for comparison with the numbers on the appliances seized from defendant’s residence. He argues there was evidence that the serial number record was available to the state and would have been more satisfactory proof that the appliances were stolen. In order for the serial numbers to be relevant, they would have to be numbers on appliances taken from the mobile home. The Barrett employee testified that Barrett did not have a record of the serial numbers of appliances in the mobile homes on its lot. He stated that the mobile homes were delivered to Barrett completely furnished with appliances and the delivery documents did not contain serial numbers of the appliances. Consequently, evidence respecting any serial numbers was not available for the state to produce.

Defendant’s conclusion that a record of the numbers was available was based on his assumption that all appliances have serial numbers and there exists somewhere a record of those numbers. The state, he contends, could have obtained this record. We decline to hold that just because the state possibly could have by a more diligent investigation obtained the record from either the appliance manufacturer or the mobile home manufacturer, the evidence is within the power of the state to produce, as that phrase is used in ORS 17.250(7) and the instructions. We conclude the instructions were not appropriate, because there was not a sufficient basis in the evidence to support them.

In his third assignment, defendant contends his motion to suppress the evidence seized pursuant to the warrant should have been granted because the endorsement for a nighttime search was improperly given by the issuing judge.

The warrant was issued at 9:36 p.m. and provided on its face, by way of a preprinted form authorization, that it could be executed "at any time of the day or night.” The issuing judge signed the warrant twice, his second signature specifically endorsing the provision for execution at any time. The police executed the warrant shortly after 10 p.m. Defendant argues that the search at night was unauthorized and contrary to law because the judge, in allowing execution of the warrant at any time, failed to make any findings as to the necessity for a nighttime search and because the facts in this case do not reveal any justification or need for a search at night.

ORS 133.565(3) provides:

"Except as otherwise provided herein, [a] search warrant shall be executed between the hours of 7 a.m. and 10 p.m. and within five days from the date of issuance. The judge issuing the warrant may, however, by endorsement upon the face of the warrant, authorize its execution at any time of the day or night and may further authorize its execution after five days, but not more than 10 days from date of issuance.” (Emphasis supplied.)

It is the emphasized portion of the statute which is the subject of this assignment of error. The statute says the judge "may” endorse the warrant but does not say under what circumstances nighttime service may be allowed. The answer to that question is not clear from the face of the statute, and we must turn to the legislative history for assistance.

ORS 133.565(3) was enacted as part of the Criminal Code revision. Oregon Laws 1973, ch 836, § 85. Before its enactment, a search warrant could be executed at any time without specific authorization by the issuing judge. See State v. Kook, 14 Or App 594, 513 P2d 1189, rev den (1973). The official commentary to ORS 133.565 recognizes that the new statute is a modification of Oregon Law:

"Subsection (3) contains an important innovation for Oregon Law. Where possible searches should be conducted in daylight hours, the invasion of private premises in the small horns of the night smacks of totalitarian methods and is more likely to create the terror that precipitates gun battles. Obviously there are occasions when it is imperative that the search be conducted at night. Subsection (3) permits such searches if the judge so authorizes service on the face of the warrant in the nighttime hours after 10 p.m.” Criminal Law Revision Commission Proposed Criminal Code, Final Draft, 75 Commentary to § 135.

In construing the statute before us, our function is to ascertain and apply the intent of the legislature. Fifth Avenue Corp. v. Washington Co., 282 Or 591, 581 P2d 50 (1978); Salahub v. Montgomery Ward, 41 Or App 775, 599 P2d 1210, rev den 288 Or 249 (1979). "In this endeavor, we may give due consideration to legislative history.” State v. Leathers, 271 Or 236, 242, 531 P2d 901 (1975). ORS 133.565(3) by its terms indicates that daytime searches are to be the rule, and searches at night are to be the exception. The question is when the exception applies.

In the commentary quoted above, the legislature, insofar as it accepted the commentary of the Law Revision Commission, recognized that nighttime searches are a greater intrusion upon an individual’s privacy and are more likely, when compared to searches conducted during the daytime, to be met with, armed resistance. Thus, the practice of executing warrants at night is to be limited. Warrants allowing for execution at any time, day or night, must be specifically authorized by the issuing judge. It follows, from the language used by the drafters of the statute, that circumstances claimed to demonstrate the necessity for a nighttime search must be presented to the judge by the applicant. The judge must then decide if the circumstances, as presented, justify a search at any time. Unless the judge concludes they do, execution of the warrant must be limited to the daytime hours specified in the statute.

If the statute were read literally, as the state would have us do, a warrant could be executed at night merely upon the judge’s authorization and without any showing of a need for the greater intrusion. A judge might authorize a night search simply because there was no reason not to or because the application for a warrant had been presented. Subsection (3) would become meaningless if we were to make that interpretation. The limitation would be one of form only, rather than one of substance, and the 1973 addition to the Criminal Code would have made no substantive change in existing law. It would certainly not have been an "important innovation.” Legislation should be interpreted to carry out its legislative purpose. The necessity of a showing by the applicant of special circumstances before a nighttime search may be authorized is inherent in the statute.

We hold that a judge issuing a search warrant allowing execution at any time, day or night, may do so only on the basis of facts presented to him during the warrant application process which demonstrate the necessity of a nighttime search. When the police obtain a constitutionally valid warrant they ought to be allowed to search at a time when there are reasonable prospects of a safe and successful search. There may be circumstances that would reasonably lead to a conclusion that a search can only be safely or successfully conducted at night; or the circumstances of the contemplated search may be difficult to predict with accuracy and a nighttime search would bé justified to insure a reasonably successful search. The decision must be made in light of the legislative policy favoring daytime searches.

The record in this case does not disclose special circumstances justifying a nighttime search. The state argues the facts that the warrant was issued at 9:36 p.m., just 24 minutes before the 10 p.m. deadline, that defendant was in custody and that the police were unaware his girlfriend resided in the house to be searched is a sufficient basis for the endorsement. These facts do not support a conclusion that a nighttime search was reasonably necessary to insure a safe or successful search. The application sought a warrant to search for and seize large household appliances. It is unlikely those appliances would be surreptitiously removed before the search could be conducted the next morning. The fact the warrant was issued only minutes before 10 p.m. is not in and of itself a basis for a nighttime search. As a matter of convenience, it may have been desirable for the police to conduct the search immediately; however, mere convenience of the police is not a sufficient basis in light of the legislative policy that nighttime searches be limited.

Having determined that there was not a sufficient factual basis for the endorsement allowing execution of the warrant any time of the day or night, we turn to the question of whether the property seized pursuant to the warrant should have been suppressed. The Oregon Supreme Court has generally held that evidence seized in violation of a state criminal statute will only be suppressed when the violation rises to the level of a federal constitutional violation. See, e.g., State v. Bishop, 288 Or 349, 605 P2d 642 (1980); State v. Valentine/Darroch, 264 Or 54, 504 P2d 84 (1972), cert den 412 US 948 (1973); State v. Valdez, 277 Or 621, 561 P2d 1006 (1977).

The genesis of the rule limiting nighttime searches is purely statutory. In State v. Kook, supra, we held there was no constitutional requirement that a search warrant be executed during any particular time of the day or night. ORS 133.565 was enacted as a modification of Oregon statutory law — not constitutional law. Legislation may reflect constitutional principles, e.g., State v. Valdez, supra, or impose statutory restrictions on searches, but it does not create constitutional law or doctrine. The concept that the nighttime search limitation is part of the constitutionally reasonable search construct has been specifically rejected by a number of courts. See State v. Kook, supra; United States v. Searp, 586 F2d 1117 (6th Cir 1978), cert den 440 US 921 (1979); United States v. Burke, 517 F2d 377 (2nd Cir 1975); United States v. Dauphinee, 538 F2d 1 (1st Cir 1976); United States v. Ravich, 421 F2d 1196 (2nd Cir), cert den 400 US 834 (1970).

The opinion in United States v. Searp, supra, is instructive, because it discusses in detail the method of dealing with evidence seized in a nighttime search which was not properly authorized. In that case defendant was convicted in a federal court of bank robbery. He moved for suppression of evidence seized pursuant to a warrant from his mother’s residence at night on the basis that a nighttime search was not authorized. State and federal officers jointly conducted an investigation of the bank robbery. They obtained a warrant for defendant’s arrest and went to his mother’s residence to arrest defendant who resided there. He had fled the state, and his mother refused to allow a search of the residence. The local police and the federal authorities immediately obtained a search warrant from a state court based on the affidavit of an FBI agent. The warrant was issued at 11:27 p.m. and was executed later that night by local police and federal officers. No state statute or regulation restricted the execution of a search warrant to any particular time period nor required an endorsement for nighttime service.

The court first held that, because of the participation of the federal agents in obtaining and executing the warrant, the validity of the search was to be judged by federal law, including the Federal Rules of Criminal Procedure. Rule 41(c)(1), Fed. R. Crim. P., provided that a search warrant "shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime.” The court concluded the warrant did not comply with Rule 41 because it contained no specific authorization for a nighttime search, and there were no particular facts presented to the issuing judge showing a need for a nighttime search.

The court, however, concluded the evidence seized was admissible. After discussing the basis of the rule for daytime searches, it said:

"Nevertheless, the particular procedures mandated before a night search may be conducted are not part of the fourth amendment, and we conclude that suppression should not automatically result from any violation of the rules. A further inquiry into the actual search which occurred is permissible.” 586 F2d at 1124.

The court explained that the portion of Rule 41 under review was not a reflection of constitutional rights but was designed to govern the conduct of law enforcement agents as a safeguard against abusive, arbitrary police action in carrying out a constitutionally authorized search.. The court discussed the propriety of excluding evidence seized at night without proper authorization in terms of the harmless error rule and said:

"When there has merely been a violation of the procedural rules governing night searches, suppression, with its attendant potential for a miscarriage of justice, is not justified when there was neither a possibility of bad faith conduct on the part of the police, nor prejudice to the defendant (in the sense that the search might not have occurred or would not have been so abusive if the requirements of the Rule had been observed). The test is met, and suppression would be required when, based on the facts and circumstances known to the police at the time application was made for the warrant, there is a reasonable possibility that permission for a night search would have been refused even if an appropriate request had been made.” 586 F2d at 1125.

In upholding admission of the evidence, the court noted that defendant’s mother was the only person in the residence when the warrant was executed and that she earlier was told the police would return with a search warrant. The court said the protection against surprise searches given by Rule 41 was not necessary, because the occupant of the house was aware a search was imminent. The court also noted that defendant had already fled, so his interests were not violated by failure to adhere to the rule controlling nighttime searches.

The analysis and rationale of United States v. Searp, supra, is appropriate here. Defendant was in custody and his statutorily mandated interest to have a daytime search of his residence, and thereby to avoid a more obtrusive nighttime search, was obviated. The police had a warrant which was constitutionally valid and which on its face contained an endorsement for nighttime service. The police were unaware that the defendant’s girlfriend also lived in the residence and reasonably assumed there would be no one present when the search was made. There was no prejudice to the defendant and no bad faith on the part of the police in conducting the search at the time they did.

The dissent argues that the statutory rule limiting nighttime searches is analogous to the "knock and announce” rule (ORS 133.575(2)), which has been enforced by application of the constitutionally based, judicially announced exclusionary rule. See State v. Valentine/Darroch, supra. The basis of the knock and announce rule is the supposition that an announcement that the persons seeking entry are police and are there to search will lessen the terror citizens might feel from persons entering their homes and thereby reduce the chance the entry will be met with forcible resistance. In some measure the statutory nighttime search limitation has the same conceptual basis. Although the two rules have similar bases, we need not carry the analogy to the point of engrafting the mechanism for enforcement of the knock and announce rule as the enforcement mechanism for the nighttime search limitation. If the knock and announce rule is adhered to by the police, the legislative policy embodied in ORS 133.565(3) of guarding against surprise searches which may be met with force is fostered. There is no assertion in this case that the police did not announce their presence and purpose before entering defendant’s residence. As the Supreme Court said in State v. Quinn, 290 Or 383, 623 P2d 630 (1981):

«* * *r[']le device of excluding trustworthy evidence from the factfinding process in order to serve higher purposes 'is a needed, but grudgingly taken medicament; no more should be swallowed than is needed to combat the disease.* * *” 290 Or at 397.

We conclude that it is unncecesary to apply the exclusionary rule in this case and that the court did not error in denying defendant’s motion to suppress the evidence.

In his final assignment of error defendant contends "[t]he cumulative effect of the prosecutorial misconduct in this case resulted in a denial of the defendant’s due process rights.” Defendant identified three instances which he alleges involved prosecutorial misconduct. The first involved the employee of Barrett who testified for the state. During his opening statement defendant suggested that the witness would be unable to identify the property stolen from the mobile homes and that his testimony would be at variance with the description of the property given to the police. Following the opening statements the prosecutor took the witness to the police property room and had him view the property taken from defendant’s residence. On the witness stand the employee identified the property in custody of the police as having been stolen from the mobile homes. He explained the discrepancies between his discription on the witness stand and that given to the police at the time the theft was reported. Defendant moved for dismissal on the ground the prosecutor’s conduct allowed the witness to alter his testimony to take care of the variances defendant suggested in his opening statement. On cross-examination of the witness, defendant brought out the fact the witness had been shown the property during the recess.

The court denied defendant’s motion for dismissal, stating that it was not inappropriate for the prosecutor to discuss with a witness the testimony he would give from the witness stand. We agree. There is nothing in the record to indicate the prosecutor told the witness what to say. The prosecutor told the court he had merely shown the property to the witness and had neither told him what to say nor discussed defendant’s opening statement. This was confirmed by the witness before the jury. Tlie prosecutor’s conduct was brought out in front of the jury and could be utilized by the jury in judging the weight of the testimony.

The second instance of alleged misconduct involved another witness, the defendant’s girlfriend. She had been subpoenaed by the state, but the state elected not to call her as a witness. Defendant decided to call her as his witness. While she was waiting in the hall outside the courtroom, she was served with a subpoena for appearance before the grand jury the following day. During a recess she informed defendant’s counsel she would not testify because of the grand jury subpoena.

Defendant moved for dismissal of the indictment on the ground the service of the grand jury subpoena prevented him from calling a witness. The prosecutor explained that the grand jury proceedings did not involve anything connected with the trial. He stated the police had previously been unable to serve the grand jury subpoena and did so when the witness appeared for the trial as a matter of convenience. He also explained that, because the witness travelled some distance to the courthouse her appearance before the grand jury the following day would make it unnecessary for her to make a separate trip. The court explained the situation to the witness, told her of any rights she would have not to incriminate herself and allowed her an opportunity to consult with an attorney. Following a recess, the witness told the court she decided not to consult with an attorney and would testify for defendant. The record indicates she understood and was satisfied with the explanation given by the court. There is no indication her testimony was in any way affected by the incident.

The third incident of alleged misconduct involved a question of discovery. After the indictment was returned and prior to the first setting of the trial, the prosecutor had told defendant’s counsel that the property seized from defendant’s residence had been returned to the owners and was not available for his inspection. During the hearing on defendant’s motion to suppress, which was held at the time the trial was originally set, the prosecutor revealed that during the previous week he had discovered the property was in the police property room. Defendant asserted that this was a violation of the discovery statute and moved for a continuance. Following the hearing on the motion to suppress, the court granted a continuance to allow defendant to inspect the property. Although there may have been a violation of the discovery statute, any prejudice to defendant was cured by granting his request for a continuance.

We conclude these three instances did not deprive defendant of a fair trial.

Affirmed.