State v. Morton

LANDAU, J.

In these cases consolidated for appeal, the state appeals from orders granting defendants’ motions to suppress evidence obtained from an arrest made pursuant to an allegedly unauthorized warrant. We affirm in part and reverse in part.

The following facts are not in dispute. In December 1991, defendant Deann Morton was convicted for driving while suspended. ORS 811.175. That offense is a traffic infraction. ORS 153.505; ORS 811.175. Morton was ordered to pay a fine or appear in court on January 10, 1992. After she failed to do either, a Lane County municipal court issued a warrant for her arrest.

On February 2, 1993, a detective saw Morton associating with people whom he knew were under investigation for drug involvement, among them defendant Kenneth Evans. The detective arrested Morton pursuant to the 1992 warrant. Evans was handcuffed for “safety reasons.” While Morton was being placed under arrest, a plastic container fell from her jacket. Morton denied knowing what was in the container, denied having ever seen it and denied ownership of the container. The detective opened the container and found methamphetamine and related paraphernalia. He then arrested Evans, searched him and seized a gun and other personal effects.

Morton and Evans were charged with unlawful delivery of a controlled substance. ORS 475.992(1)(b). Morton was also charged with unlawful possession of a controlled substance. ORS 475.992(4)(b). Both defendants moved to suppress all evidence of the methamphetamine and related paraphernalia seized during Morton’s arrest. They argued that Morton’s arrest was invalid, because the warrant on which it was based was void. According to defendants, the warrant was issued for Morton’s failure to appear on a citation for a traffic infraction, and the statute authorizing warrants for failure to appear, ORS 153.560(1), applies only to citations for traffic crimes. Evans also argued that, independent of the problem with the warrant to arrest Morton, the state lacked probable cause to arrest him for the commission of any crime.

The state argued that ORS 153.560(1) authorizes warrants for failure to appear upon citations for both traffic infractions and traffic crimes. The state also argued that, in any event, defendant Morton cannot challenge the lawfulness of the seizure of the drugs and related paraphernalia, because she has disclaimed any knowledge of or interest in them. The state offered no such argument concerning defendant Evans.

The trial court heard arguments in both cases together and granted defendants’ motions. As to Morton, the court concluded that the warrant to arrest her was void and her arrest unlawful, because ORS 153.560(1) does not authorize the issuance of warrants for failure to appear on a citation for a traffic infraction. As to Evans, the court also found that, because there was no testimony demonstrating that it was more probable than not that he had committed a crime, his arrest was unlawful.

The two cases were consolidated on appeal at the request of the state, which argued that the two cases presented the same legal issue.

The state assigns error to the suppression of the evidence of the methamphetamine and related paraphernalia in both cases. The state first argues that the trial court erred in granting defendant Morton’s motion to suppress, because the issuance of the warrant for Morton’s arrest was valid and because Morton did not claim a constitutionally protected privacy or property interest in the items seized. Morton responds that the warrant for her arrest was invalid and that no claim of interest in the items seized is required. We need not address the validity of the warrant to arrest Morton at this juncture, because even if it was not valid, the state is correct that she cannot contest the constitutionality of the seizure of the drugs.

To challenge the lawfulness of a search, a defendant must establish that she had an interest in the particular item that was seized. State v. Knox, 134 Or App 154, 161, 894 P2d 1185 (1995); State v. MacDonald, 105 Or App 102, 105, 803 P2d 1211 (1990), rev den 311 Or 433 (1991). In this case, the uncontradicted evidence was that Morton said that she had never seen the container that contained the drugs and related paraphernalia, did not own it and knew nothing of its contents . In the light of that testimony, there is no basis on which to find that Morton had an interest in the container and, consequently, she cannot challenge its seizure. The trial court erred in suppressing that evidence.

The state next asserts that the trial court erred in granting defendant Evans’s motion to suppress. The state offers two arguments in support of that assertion. It first argues that the warrant to arrest Morton was valid. Why the trial court’s decision to suppress the evidence as to Evans turns on the validity of the warrant to arrest Morton is not readily apparent. From the record, it appears that Evans moved to suppress, arguing that, among other things, had the police not acted on the invalid warrant to arrest Morton, they would not have discovered the container of methamphetamine. The state did not argue that Evans could not attempt to suppress evidence obtained from the arrest of another person. See State v. Trevino/Ahumada, 133 Or App 24, 27, 889 P2d 1317, rev den 321 Or 340 (1995). Instead, it simply argued that the warrant was valid. The case then proceeded on the assumption that Evans could challenge the validity of the seizure of evidence from Morton, and the case was decided on that basis. Because we are not at liberty to consider arguments not asserted by either party at trial or on appeal, we proceed to the state’s argument that the trial court erred in suppressing the evidence of the container and its contents as to Evans, because the warrant to arrest Morton was valid.

The state begins by arguing that the warrant to arrest Morton was authorized by ORS 153.200(1). The state acknowledges that it did not assert the applicability of that statute at trial, but it insists that, under the rule of State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988), it may do so for the first time on appeal. The state also argues that, in any event, the trial court misconstrued ORS 153.560(1). Evans argues that the state cannot assert the application of ORS 153.200(1), because that issue was not asserted at trial. Even if the state could argue the application of ORS 153.200(1), Evans contends, the statute plainly does not authorize the issuance of warrants for failure to appear on a citation for a traffic infraction. Evans also contends that the trial court correctly construed ORS 153.560(1) in concluding that it applies only to failure to appear on a citation for a traffic crime.

We begin with the state’s argument that it may assert the applicability of ORS 153.200(1), even though it did not do so at trial. As a rule, we do not consider issues or theories not raised before the trial court. State v. Isom, 313 Or 391, 406, 837 P2d 491 (1992). As the Supreme Court explained in State v. Hickmann, 273 Or 358, 360, 540 P2d 1406 (1975):

“Appellate courts are limited in their scope of review. Generally, on appeal the case, criminal or civil, should be heard on the same theory upon which it was presented in the court below.” (Citation omitted.)

In this case, the theory that the state presented to the trial court was that ORS 153.560(1) authorized the issuance of the warrant to arrest Morton. The state never mentioned the applicability of ORS 153.200(1). We conclude that there is no basis for the state’s assertion that its new argument was properly preserved.

The state’s reliance on Hitz for a contrary conclusion is misplaced. In that case, the court distinguished between raising an issue at trial and identifying a source for a position or making a particular argument. The court said that “[t]he first ordinarily is essential, the second less so, the third least. ’ ’ Id. at 188. According to the state, all it has done in the appeal of this case is assert an alternate argument concerning the issue of whether the warrant to arrest Morton validly could have been issued. We do not agree. The issue before the trial court was whether ORS 153.560(1) authorized the issuance of the warrant. Whether a different statute might have justified the issuance of the warrant presents an entirely different issue. Just as an argument concerning the admissibility of evidence under one rule of evidence does not preserve an argument under other rules, so also in this case, the state’s argument concerning the validity of the warrant to arrest Morton under one statute does not preserve the argument that the warrant was valid under an entirely different statute. See State v. Solomon, 133 Or App 184, 187-88, 890 P2d 433, rev den 321 Or 512 (1995); State v. Carrillo, 108 Or App 442, 445-46, 816 P2d 654, rev den 312 Or 527 (1991).

We turn then to the state’s argument that the trial court misconstrued ORS 153.560(1). That subsection provides, in part:

“If a person cited for a traffic crime fails to comply with the provisions of ORS 153.540, or if the person fails to appear at any time fixed by the court, a warrant for the person’s arrest may be issued.”

The state concedes that, at least “at first glance,” the statute appears to say that, if a person cited for a traffic crime — and not a mere infraction — fails to appear or post bail, a warrant may issue. However, the state insists that, on closer scrutiny, it becomes clear that the statute cannot be read in that fashion. According to the state, the context of the section indicates that the reference to “the person” must refer to a person who has been cited for a traffic infraction as well as for a traffic crime.

In support of that argument, the state refers to the heading of the group of sections in which ORS 153.560(1) is located, which is labeled “traffic infractions.” The state also relies on its observation that, in other sections of the chapter, the term “the person” is used without distinguishing between persons charged with traffic infractions and those charged with traffic crimes. Finally, the state argues that, because other statutes permit the issuance of warrants for failure to appear on citations for boating infractions, wildlife infractions and other types of infractions, it makes no sense not to permit the courts to issue warrants for failure to appear or remit bail on a citation for a traffic infraction.

Our task in interpreting a statute is to discern the intent of the legislature. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). We first examine the text and context of the statute, including other provisions of the same statute, other related statutes and previous versions of those statutes. Krieger v. Just, 319 Or 328, 336, 876 P2d 754 (1994). If the legislature’s intent is clear from that inquiry, we need inquire no further. PGE, 317 Or at 611.

In this case, the text unambiguously authorizes a warrant only in cases involving a traffic crime. It states that, “[i]f a person cited for a traffic crime” fails to appear or remit bail or “if the person fails to appear at any time fixed by the court,” then the court may issue a warrant for “the person’s arrest.” ORS 153.560(1). (Emphasis supplied.) The plain, ordinary and grammatically appropriate reading of the section is that “the person” who fails to appear refers to the “person cited for a traffic crime.” Indeed, it is the only reading of the sentence that makes sense.

Our common sense reading of that language is confirmed by reference to the former version of the same section. Before it was amended in 1981, the section read:

“If a person cited fails to comply with the provisions of [ORS 153.540], or if he fails to appear at any time fixed by the court, a warrant for his arrest may be issued.”

Former ORS 484.230 (amended by Or Laws 1981, ch 818, § 28 and renumbered ORS 153.560). (Emphasis supplied.) The section was amended as follows:

“If a person cited for a traffic crime fails to comply with the provisions of [ORS 153.540], or if \he\ the person fails to appear at any time fixed by the court, a warrant for [iiis] the person’s arrest may be issued.”

Or Laws 1981, ch 818, § 28. (Boldface and emphasis in original.) It is apparent that the amendments adopted the term “the person” as a gender neutral replacement for the terms “he” and “his,” which obviously referred to “a person cited” for the traffic crime.

The state’s arguments to the contrary do not overcome what is so plainly evidenced by the language of the statute. To begin with, the state’s proffered construction requires us to read the statute in a manner that makes no sense. According to the state, the reference to “the person” who “fails to appear” must mean a person cited for a traffic infraction. Accordingly, the state concludes, a warrant may issue to arrest both those who have been cited for traffic crimes and those who have been cited for traffic infractions. In making that argument, the state ignores the fact that the statute authorizes the issuance of a warrant for the arrest of “the person.” If, as the state suggests, the first reference to “the person” in the statute refers to persons who have been cited for a traffic infraction and the second reference to “the person, ’ ’ who is subject to the warrant, refers to both a person who has been cited for a traffic crime and a person who has been cited for a traffic infraction, then the same term has two distinct meanings within the same sentence. We find it highly unlikely that the legislature intended such a strange construction.

The state’s insistence that any difficulties with its proposed construction are required by the context of the statute is not persuasive. That the divisional heading for the group of sections in which ORS 153.560 appears is “traffic infractions” is of no moment. Divisional headings do not constitute part of the law. ORS 174.540; Mitchell v. Board of Education, 64 Or App 565, 568 n 2, 669 P2d 356, rev den 296 Or 120 (1983).

The state’s observation that, elsewhere, the term “the person” is used to refer to persons cited for either infractions or crimes or both also is of no particular significance. All that demonstrates is that, in other contexts, the term “the person” is used to mean something different from what the language and context demonstrates is meant by the same term used in ORS 153.560(1).

We also reject the state’s argument that it is not “logical” for the legislature to have provided for the issuance of a warrant to arrest persons who fail to appear or remit bail upon citation for boating infractions, wildlife and commercial fishing infractions and other types of infractions, but not traffic infractions. That is an argument to be directed at the legislature. Our function is to determine what the legislature has accomplished, by fairly construing the language of laws that it has enacted. It is not for us to read into those laws language that the legislature did not enact or to interpret language in those laws in an unreasonable fashion merely to accommodate what the state or any other party believes to be sound public policy or good logic. ORS 174.010; Faverty v. McDonald’s Restaurants of Oregon, 133 Or App 514, 533, 892 P2d 703, rev allowed 321 Or 512 (1995).

We conclude that the trial court correctly construed ORS 153.560(1) to authorize the issuance of a warrant to arrest persons who fail to appear or remit bail upon citation for a traffic crime, and not merely a traffic infraction. Because Morton had been cited for and convicted of a traffic infraction, ORS 153.560(1) did not provide a lawful basis for the issuance of a warrant for her arrest. The trial court, therefore, correctly concluded that the warrant to arrest Morton was unlawful.

The state next argues that, even if the warrant to arrest Morton was not lawful, the trial court should have denied Evans’s motion to suppress, because he never asserted an interest in the seized items. Evans argues that it is the state that cannot be heard on that argument, because it failed to raise it to the trial court and may not do so for the first time on appeal. The state concedes that it did not specifically argue that Evans failed to assert an interest in the items seized. Nevertheless, it insists that the issue was preserved. The state’s entire argument on that point is as follows:

“Although the prosecutor did not specifically argue that Evans ‘lacked standing’ to contest the seizure of the container, that assertion was implicit in her argument that Morton lacked ‘standing.’ ”

There is no citation of authority for the proposition that raising an argument against a defendant in one case automatically preserves the same argument as to a defendant in another case, and we are aware of none. Moreover, our review of the transcript of the arguments to the trial court reveals that, although the motions were heard at the same time, there is no basis for concluding that the trial court was informed that the state intended its argument in opposition to Morton’s motion to be directed at Evans’s motion as well. We conclude, therefore, that the state did not preserve its argument as to Evans.¹

The state does not challenge the trial court’s ruling on Evans’s motion to suppress on any other grounds. Accordingly, we conclude that the trial court did not err in granting that motion.

Reversed and remanded on charges against defendant Morton; otherwise affirmed.

1 We note that, unlike State v. Knox, 134 Or App 154, 894 P2d 1185 (1995), this is not a case in which the state has argued, for the first time on appeal, a defendant’s failure to assert an interest in property seized as a basis for affirming the trial court’s ruling on a motion to suppress. Moreover, unlike Knox, this is not a case in which the factual record on that issue already has been fully developed below.