Argued and Submitted September 10, 2012
Deschutes County Circuit Court. 06FE1054AB. Alta Jean Brady, Judge.
Lisa A. Maxfield argued the cause and filed the brief for appellant.
Rolf Moan, 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 Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.
[263 Or.App. 344] DUNCAN, J.
In this criminal case, defendant appeals a judgment convicting him of four counts of first-degree sexual abuse, ORS 163.427, of his nine-year-old daughter, T. The jury acquitted defendant or deadlocked on eight other counts, two pertaining to T and six to defendant's son, V. Defendant contends that the trial court erred in (1) declining to suppress evidence obtained through the seizure and testing of a pair of T's underwear; (2) ruling that an expert witness, a forensic pathologist, was unqualified to offer his opinion on the probable source of spermatozoa found in T's clothing; and (3) admitting as exhibits foster mother's handwritten notes relating the circumstances of her conversations with T and V about sexual abuse by defendant. We conclude that the seizure of the underwear was unlawful and, accordingly, the underwear and evidence derived from it should have been suppressed. That error was not harmless. Accordingly, we reverse and remand. We do not address defendant's second argument, regarding the defense pathologist. We also do not address defendant's argument regarding foster mother's notes. See OEC 803(5) (providing that, if admitted, a memorandum of past recollection " may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party" ).
Defendant raises three arguments in support of his view that evidence derived from the seizure and testing of the underwear should have been suppressed: First, defendant contends that acts of his employees, who took the underwear from his home and gave it to the police, constituted " state action," implicating the Oregon and United States constitutions, and, accordingly, probable cause and a warrant or an exception to the warrant requirement were required for the search and seizure. Second, defendant contends that the acceptance of the underwear by police--who knew that it had been
stolen from defendant's home--constituted an additional seizure. Third, defendant argues that the testing of the underwear for spermatozoa and seminal fluid, which involved cutting numerous holes in the underwear and [263 Or.App. 345] using laboratory equipment to examine its contents, was an additional search.
We agree that the initial search of defendant's home and seizure of the underwear was state action subject to Article I, section 9, of the Oregon Constitution. No warrant authorized the search or the seizure, and the state does not argue that any exception to the warrant requirement justified them. Accordingly, the search and seizure were unlawful, and we do not reach defendant's other arguments regarding the motion to suppress.
In reviewing the denial of a motion to suppress, we are bound by the facts found by the trial court as long as there is constitutionally sufficient evidence to support them. State v. Baker, 350 Or. 641, 650, 260 P.3d 476 (2011). In the absence of a specific finding of fact, where there is evidence from which the trial court could have found a fact in more than one way, we presume that the court's finding was consistent with its ultimate conclusion. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We state the facts consistently with those standards.
Offizer was defendant's housekeeper. Defendant employed Taylor to help him with his business, which he ran from an office above his garage. On March 16, 2006, Offizer and Taylor discussed whether they should report their suspicion that defendant was sexually abusing T.
On March 20, Offizer called the Department of Human Services (DHS) anonymously to report her concerns. She told a DHS employee with whom she spoke, Cleavenger, that she had seen " discharge" on several pairs of T's underwear that " [l]ooked like maybe a 19-year-old was wearing [the underwear]." She told Cleavenger that she was considering taking a pair of T's underwear from defendant's house, and she asked Cleavenger what authorities could tell from [263 Or.App. 346] it if she did so. Cleavenger told her that he could " hook her up" with someone in the law enforcement community who could have the underwear scientifically tested, thereby confirming or refuting her concerns. Offizer asked what would happen if she obtained the underwear, and Cleavenger told her, more than once, that he could not tell her to do that. Cleavenger gave Offizer his direct telephone number.
Cleavenger then consulted with Lieutenant McMaster at the Deschutes County Sheriff's Office. Although DHS policy required the completion of a safety check within 24 hours of a report of possible abuse--that is, an immediate response--in the absence of good cause for a delay, Cleavenger and McMaster decided to assign the case as a five-day response instead. Cleavenger later testified, " there was a likelihood--and I felt like a good likelihood--that the case was going to get stronger when [Offizer] made [her] decision." Cleavenger did not tell Offizer that he had delayed the safety check.
On the afternoon of March 20, Offizer called Taylor and reported her conversation with DHS. Offizer told Taylor that her DHS contact had said, " We can't do anything without physical evidence," and Offizer and Taylor agreed that a pair of T's underwear would be the best type of physical evidence to get. Offizer was not scheduled to work at defendant's home the following day, but Taylor was, so Taylor said that she would try to obtain a pair of T's soiled underwear while she was at work.
The next morning, while defendant was taking the children to school, Taylor went into the laundry room in defendant's house, took the first pair of underwear she saw, put it in a plastic baggy, and put the baggy in her lunch bag. The underwear had a large
amount of discharge in the crotch. After work, Taylor went to Offizer's house and gave her the underwear. Offizer called Cleavenger to tell him that she had the underwear. He told her to put it in a paper bag to prevent the destruction of any physical evidence. Cleavenger also arranged for Offizer to bring the underwear to the police the following morning.
[263 Or.App. 347] On the morning of March 22, Offizer met another DHS employee, Cloninger, and Detective Quick of the Deschutes County Sheriff's Office in a Wal-Mart parking lot, where Offizer gave them the paper bag containing the underwear and described some of her concerns regarding defendant's possible abuse of T and V. She asked Quick, " [D]id I do good by bringing this bag?" Offizer and Taylor testified at the suppression hearing that their purpose in taking the underwear was to assist law enforcement.
Quick and Cloninger immediately delivered the underwear to the Oregon State Police (OSP) Crime Lab in Bend. The lab director, Bordner, conducted two tests to determine whether the underwear contained spermatozoa or seminal fluid. No warrant was obtained for either of the tests. Later that day, Bordner informed Quick that she had identified at least three spermatozoa heads on T's underwear.
The same day, Quick prepared a search warrant application using the test results and information he had gathered from Offizer, Taylor, and Cleavenger. That night, the warrant was executed, defendant was arrested, and additional property was seized, including a nightgown, pajama pants, a bathing suit, and jeans, all belonging to T. Later testing of those items revealed additional spermatozoa heads on all of them and, on the nightgown, evidence of seminal fluid as well.
Defendant was eventually charged with nine counts of sexual abuse in the first degree, one count of rape in the first degree, and two counts of sodomy in the first degree. The charges involved abuse of both T and V. Defendant filed a motion to suppress and supporting memorandum, asking the court to exclude
" all evidence, including derivative evidence and statements, obtained through the unlawful and warrantless (a) search of the laundry hamper in his home, (b) seizure of the underwear from the hamper, (c) seizure of the underwear by police and (d) the destruction and testing of the underwear by the Oregon State Crime Lab."
[263 Or.App. 348] After a hearing, the court concluded that (1) no state action was involved in Taylor and Offizer's taking of the underwear, (2) Quick's seizure of the underwear was lawful because Quick had " an objectively reasonable belief that the child's underwear contained evidence of a crime," and (3) the testing of the underwear did not constitute an unlawful search because, " [b]ased on the information [Quick] received from Defendant's housekeeper and his visual examination of the underwear, he had an objectively reasonable belief that * * * the underwear contained evidence of a crime and ...