holding that defendant’s “excited and belligerent” demeanor and his action of grabbing his car keys was a clumsy effort to assert his right to the privacy of his cars and refuse consent and could not be a basis for reasonable grounds to believe the cars contained evidence of a parole violation
How later courts described this case
- holding that defendant’s “excited and belligerent” demeanor and his action of grabbing his car keys was a clumsy effort to assert his right to the privacy of his cars and refuse consent and could not be a basis for reasonable grounds to believe the cars contained evidence of a parole violation
- holding that an individual’s assertion of his Fourth Amendment rights did not provide “reasonable grounds to search” his car
- the defendant’s belligerent demeanor and action of grabbing car keys was an assertion of the right to the privacy of the defendant’s cars and not reasonable grounds to believe that the cars contained evidence of a parole violation
- to allow “the police to conduct a search on the basis of the assertion of a privacy right would render the so-called right nugatory”
Written by the judges who cited it.
The opinion
ROSSMAN, J.,
dissenting.
I do not dispute the majority’s observation that, “[ejxcept as limited by his conditions of parole, defendant had the same rights on parole as any other citizen.” 110 Or App at 608. However, there is a big difference between asserting a constitutional right and attempting to hide evidence from the police. This is why I must disagree with the majority’s conclusion that the search of defendant’s cars was unlawful. I believe that the evidence establishes that Guice did have reasonable grounds to believe that the cars contained evidence of a parole violation, and I therefore dissent.
My analysis of this case begins with defendant’s concession that, if Guice had reasonable grounds to search the cars, defendant’s refusal to submit to the search would have violated his parole conditions and made him subject to revocation proceedings. Although the majority correctly states that there was ample evidence of drug sales to support the search of the house, it erroneously concludes that there were no additional facts that could have led Guice to believe that defendant’s cars would contain other evidence of criminal activity.
The Supreme Court has held that, although “mere suspicion” is insufficient to justify making an arrest without a warrant, a defendant’s act of taking flight can constitute an independent basis for probable cause or reasonable grounds to arrest. In State v. Williams, 253 Or 613, 615 , 456 P2d 497 (1969), the court held:
“[E]ven if we assume that the information given by the informer would not be sufficient to justify the issuance of a warrant of arrest, a new set of facts prior to the arrest appeared when the defendant fléd on observing the approach of the officers.” (Emphasis supplied.)
Similarly, even if we assume that the grounds for a search of defendant’s house was not sufficient to justify the search of his cars, a new set of facts took shape before the car search when defendant grabbed the car keys, denied their existence, *613 returned two sets of keys and attempted to conceal the third set. Those acts indicated defendant’s consciousness of guilt. Given that Guice already possessed reasonable grounds to believe that defendant was selling drugs, the attempts to hide the car keys simply increased Guice’s reasonable suspicion and directed him to the cars where he found the stolen property.
Because the trial court decided this case correctly, we should affirm.