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State v. Moore

Court of Appeals of Oregon

December 26, 2013

STATE OF OREGON, Plaintiff-Respondent,
KENNETH EVERETT MOORE, Defendant-Appellant.

Argued and submitted on November 27, 2012.

Coos County Circuit Court 09CR0469, 09CR0468 Richard L. Barron, Judge.

Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant. With her on the opening and reply briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services. Kenneth E. Moore filed the supplemental brief pro se.

David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.


Defendant challenges a judgment of conviction stemming from a trial in two consolidated cases, one tried to a jury and the other to the court. In the jury trial case, defendant was convicted of six counts of first-degree rape, ORS 163.375(1)(c) (Counts 9 to 14); two counts of attempting to elude a police officer, ORS 811.540 (Counts 15 and 17); felon in possession of a firearm, ORS 166.270 (Count 16); and reckless driving, ORS 811.140 (Count 18). He was acquitted of second-degree criminal mischief, ORS 164.354 (Count 19). In the bench trial case, defendant was convicted of 27 counts of violating a restraining order, ORS 33.015.

Defendant's contentions on appeal pertain to the jury trial case. Defendant contends, among other things, that the trial court erred when it denied his motion to suppress evidence of a manuscript that was seized from a jail cell where he was detained pending trial; specifically, he asserts that the search of the cell and seizure of the manuscript violated his rights under Article I, section 9, of the Oregon Constitution.[1]Defendant relies upon State v. Hartman, 238 Or.App. 582, 243 P.3d 480 (2010), adh'd to as modified on recons, 241 Or.App. 195, 248 P.3d 448 (2011), a case where we affirmed the suppression of evidence that was seized and removed from a pretrial detainee who was lodged in a jail cell. Because the state, under Hartman, may not subject a pretrial detainee's noncontraband property to a warrantless seizure solely for the purpose of obtaining evidence, we agree that the seizure of defendant's manuscript was unlawful. And because the admission of that evidence was harmful as to the rape charges, we reverse and remand on Counts 9 to 14 in the jury trial case, and otherwise affirm the remaining convictions in both cases.[2]

We review the trial court's denial of a motion to suppress for errors of law. ORS 138.220. Here, the trial court made findings of fact on the motion to suppress. Those findings are binding on appeal if there is sufficient evidence in the record to support them. State v. Ehly, 317 Or 66, 75, 854 P.2d 421 (1993). The following facts are taken from, or are consistent with, the trial court's findings.

Defendant's stepdaughter, H, reported that defendant had been sexually abusing her since she was 12 years old. In addition, defendant's wife complained to police that defendant left her messages in violation of a restraining order. A warrant issued for defendant's arrest, and defendant was captured after a high-speed chase.

While being held at the Coos County Jail pending trial, defendant allowed a fellow inmate to read the manuscript of a book that defendant was writing. The inmate later told police that the manuscript contained information about the alleged sexual abuse.

An investigating detective asked Grant, a jail supervisor, to search for defendant's manuscript. Without a warrant, Grant and a deputy searched all of the cells in defendant's cell block, looking for that evidence. Grant found the manuscript on the desk in defendant's jail cell. Although most of the manuscript was in an unmarked white envelope, a few pages were loose on the desk. Grant seized the entire manuscript, including the loose pages, and turned it over to the district attorney.

At a pretrial hearing, defendant moved to suppress all evidence of the manuscript "seized from the defendant's jail cell." Defendant contended that suppression was required under Article I, section 9, and the Fourth Amendment to the United States Constitution because "defendant is being held pretrial, and * * * the evidence was seized without a warrant; without probable cause and exigent circumstances; and without reasonable suspicion."

In a letter opinion, the trial court denied defendant's motion to suppress. The trial court found that Grant had followed the search policy ...

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