# State v. Tanner > Oregon Supreme Court · November 17, 1987 · 304 Or. 312 URL: https://www.frixlaw.com/law-library/cases/9570374 ## Case - **Full name:** STATE OF OREGON, Respondent on Review, v. WILLIAM CALVIN TANNER, Petitioner on Review - **Court:** Oregon Supreme Court - **Decided:** November 17, 1987 - **Citations:** 304 Or. 312; 745 P.2d 757; 1987 Ore. LEXIS 1972 - **Precedential status:** Published - **Opinion:** Concurrence by Gillette - **Judges:** Lent, Campbell, Gillette, Peterson, Jones - **Cited by:** 140 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9570374 ## How later opinions describe it (automated extraction) - stating that “[sjearches and seizures are separate acts calling for separate analysis” and that “[i]f the police violated any right of [the] defendant’s, it was a right against the search that uncovered the effects, not some right in the effects themselves” - holding that, when a person entrusts effects to another, and the police discover those effects in the other’s home by means of a search that *24 violates Article I, section 9, the search also violates the entrustor’s rights under Article I, section 9 - concluding that the defendant retained a privacy interest in items that he entrusted to friends as security for a loan so that, when an unlawful search of the friends’ home uncovered the defendant’s property, his privacy interests were violated - holding that a defendant who had pledged property, which turned out to be stolen, had a right to reclaim the pledged property and had not abandoned the property for the purpose of the Article I, section 9, analysis of defendant’s privacy rights ## Opinion text GILLETTE, J., concurring in part, specially concurring in part. I join in the court’s disposition of this case. I write separately only to disassociate myself—for the time being—from the “personal right” v. “deterrent” struggle into which this case has developed. As to that struggle, I choose to remain a noncombatant. Justice Jones makes some good points when he questions the doctrinal antecedents of this Court’s embarkation on the “personal right” journey in State v. McMurphy, 291 Or 782, 785 , 635 P2d 372 (1981). The Court may, as he suggests, have claimed more for United States v. Salvucci, 448 US 83 , 100 S Ct 2547 , 65 L Ed 2d 619 (1980), than the language and holding of that case justify. 304 Or at 330-31, 335-36 (Jones, J., dissenting). And, if his criticism is well taken, one also fairly can question the “personal right” language found in State v. Davis, 295 Or 227 , 666 P2d 862 (1983), that relies on McMurphy . But such an argument, even if well taken, does nothing to explain why the concept of a “personal right” enforceable under Oregon Constitution Article I, section 9, is not valid. For example, it does not explain why the specific language of that section, viz., “the right of the people to be secure * * (emphasis supplied) is not significant. Compare, e.g., State v. Henry, 302 Or 510 , 732 P2d 9 (1987) (opinion for a unanimous court by Jones, J.) (construing the phrase “on any subject whatever” in Or Const Art I, § 8). If I were compelled to choose, I probably should *325 choose to take the McMurphy/Davis approach of the majority, at least over the deterrent approach of the dissent. I am more persuaded by the logic of the former. The vacillation and retraction in recent years in the United States Supreme Court’s Fourth Amendment jurisprudence, leading to its inexplicable “good faith” exception to the exclusionary rule, see United States v. Leon, 468 US 897 , 104 S Ct 3405 , 82 L Ed 2d 677 (1984), satisfies me that the “deterrence” rationale does not vindicate adequately the interests to which Article I, section 9, speaks. But I am not compelled to choose between competing doctrines at this juncture. In the first place, another theory—that it is the court’s independent duty to enforce the constitution, and that admitting evidence improperly seized would be a separate constitutional violation by the court— deserves some thought. That aside, it seems to me that, even under its deterrence rationale, the dissent should agree on the outcome of this case. This defendant had placed goods for safekeeping in someone else’s home. That house had, for search and seizure purposes, the same status as a storage vault, airport luggage locker or rented storage facility. “Title” to the property placed in any such location is irrelevant. Defendant would be protected even if the property he placed there was illicit drugs in which no one could have title. When the police entered the house in this case without legal authority, the resulting search was no more permissible than would have been a similar illegal search of the other places just mentioned. Suppression should be required under Article I, section 9, even if our only purpose were deterrence—magistrates need to be deterred from issuing invalid warrants just as much as police officers need to be deterred from making invalid searches. I concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9570374. Public record. Not legal advice.