Filed: July 24, 1998
Petitioner on Review,
v.
DESMOND UTHER SMITH,
Respondent on Review.
On review from the Court of Appeals.*
Argued and submitted March 6, 1998.
Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for petitioner on review. David B. Thompson, Assistant Attorney General, Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General, filed the brief.
Mary M. Reese, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With her on the brief was Sally L. Avera, Public Defender.
Before Carson, Chief Justice, and Gillette, Van Hoomissen, and Durham, Justices.**
GILLETTE, J.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
*Appeal from Curry County Circuit Court,
Hugh C. Downer, Jr.
148 Or App 235, 939 P2d 157 (1997).
**Graber, J., resigned March 31, 1998, and did not participate in this decision. Kulongoski and Leeson, JJ., did not participate in the consideration or decision of this case.
GILLETTE, J.
This criminal case presents an interesting (and
recurring) question: Does Article I, section 9, of the Oregon
Constitution,[1]
require police officers to obtain a warrant before
using a trained drug-detecting dog to sniff the exterior of a
locked storage unit for odors that are imperceptible to the human
nose? A majority of the en banc Court of Appeals answered that
question in the affirmative, holding that any evidence obtained
as a consequence of a warrantless dog sniff must be suppressed.
State v. Smith, 148 Or App 235, 246, 939 P2d 157 (1997). The
state petitioned for review, arguing that, even without prior
judicial authorization, use of a dog to sniff in the described
manner is lawful, either because it is not a search within the
meaning of the Oregon Constitution or because it is not subject
to the usual "warrant based on probable cause" standard. We
allowed the state's petition to consider those and other related
issues. We now conclude that use of a dog to sniff property in
this manner is not a search for constitutional purposes and,
consequently, does not implicate Article I, section 9. We also
conclude that defendant's alternative theory justifying
suppression -- that evidence obtained from the storage unit must
be suppressed, because the police unlawfully seized that evidence
when they "secured" the unit in anticipation of obtaining a
search warrant -- is incorrect. We therefore reverse the
decision of the Court of Appeals.
In 1993, the Brookings Police Department received
information from a confidential informant that defendant, a
Klamath Falls resident, had a marijuana growing operation in the
Brookings area and that he periodically used a unit in a
specified storage facility to store harvested marijuana. Shortly
thereafter, the Klamath Falls police arrested and jailed
defendant, based on information supplied to them by the same
informant and on evidence obtained from a search of defendant's
residence. Not long after defendant's arrest, the Klamath Falls
police contacted the Brookings police and told them that,
according to the informant, defendant still had the same storage
unit in Brookings. Officer Plaster of the Brookings police
contacted the manager of the storage facility and confirmed that
defendant still was renting a storage unit. The manager stated
that he would not permit the police to search defendant's unit
without a warrant.
Plaster and another police officer, Gardiner, went to
the storage facility to "secure" defendant's unit. They took
along Nitro, a trained drug-sniffing dog. While Plaster spoke to
the facility manager, Gardiner took Nitro to the public area near
defendant's unit[2]
and told him to sniff for drugs. Nitro
"alerted" at defendant's unit, suggesting the presence of illegal
drugs. The officers asked the manager to place a lock on
defendant's unit while they applied for a search warrant. The
manager complied. Several hours later, Plaster returned with a
warrant, which he had obtained on the basis of his own affidavit
describing his contacts with the informant and the Klamath Falls
police, and the results of the dog sniff. During the ensuing
search, Plaster found and seized marijuana and implements used in
marijuana cultivation.
Defendant was charged with manufacture, possession, and
delivery of a controlled substance, ORS 475.992. Before trial,
he moved to suppress the evidence obtained from the storage unit,
arguing that it was obtained unlawfully in two respects: (1) the
search warrant was not supported by a sufficient showing of
probable cause, because the supporting affidavit relied, in large
part, on an unlawful search, viz., a warrantless dog sniff of the
unit's exterior; and (2) padlocking of the unit was a warrantless
seizure that was not justified by exigent circumstances. The
trial court denied the motion, concluding that the police did not
need a warrant to conduct the dog sniff because it was not a
search and that, even if padlocking the unit were an unlawful
seizure, that illegality was unrelated to the later search and
seizure conducted pursuant to the warrant. Defendant was tried
and convicted. He appealed, assigning error to the denial of his
motion to suppress.
As noted, a majority of the Court of Appeals, sitting
en banc, concluded that the challenged ruling was reversible
error, because the warrantless dog sniff violated Article I,
section 9. In reaching that conclusion, the majority considered
only the narrow question of whether a "dog sniff" search is
subject to the constitutional warrant and probable cause
requirements, ultimately answering that question in the
affirmative. For the more fundamental proposition that use of a
trained drug detection dog is a search within the meaning of
Article I, section 9, the majority relied on that court's earlier
decision in State v. Juarez-Godinez, 135 Or App 591, 900 P2d 1044
(1995), aff'd, 326 Or 1, 942 P2d 772 (1995), a decision that had
held that dog sniffs were constitutionally significant searches.[3]
Having decided in defendant's favor on the search issue, the
Court of Appeals never reached the alternative seizure argument.
In its petition for review to this court, the state
challenges both the Court of Appeals' Juarez-Godinez holding and
its conclusion that dog sniffs require a full probable cause
showing. In our view, the first issue is the key. We begin,
therefore, with the Court of Appeals' holding in Juarez-Godinez
that use of a trained dog to sniff the exterior of a private
enclosed space is a search within the meaning of Article I,
section 9, of the Oregon Constitution.
The Court of Appeals analysis in Juarez-Godinez turned
on the fact that, like the odor of marijuana detected by Nitro in
this case, the odor of drugs at issue there was not perceptible
to human beings. Relying on State v. Campbell, 306 Or 157, 759
P2d 1040 (1988), the Court of Appeals opined that the real
touchstone of acceptable governmental scrutiny under Article I,
section 9, is whether the conduct involved could have been done
by any private individual. Thus, the court concluded, even when
the police make their observations from a vantage point where
they have every right to be, a search will occur if the police
observe things that an ordinary individual could not have
observed from that vantage point. From that standpoint, the
court concluded, it is clear that dog sniffs are searches: Dogs
discern odors that would not, and could not, be detected by any
ordinary private citizen, and are used by the police for that
precise reason. Juarez-Godinez, 135 Or App at 602-04.
The state contends that that analysis expands the
notion of a protected privacy interest under Article I, section
9, to an unwarranted and unworkable degree. In the state's view,
the odor of molecules that have escaped from a contained, private
space into a place to which police officers legally have access
is fair game for any kind of observation -- aided or unaided --
because those molecules and their odor-producing properties are
in the public domain. The state argues, in other words, that
Article I, section 9, is concerned with where the police are
directing their attention and not with how they perform their
observations.
Before we address the parties' arguments, we need to
address certain misconceptions about Oregon search and seizure
law that appear in the Court of Appeals' Juarez-Godinez opinion.
First, we do not agree with the Court of Appeals' construction of
Campbell or its conclusion that the applicability of Article I,
section 9, turns on whether the evidence can be perceived
directly by unenhanced human senses. Although Campbell did
conclude that use of a particular enhancement -- a tracking
device -- was a constitutionally significant "search," it never
suggested that use of any device or enhancement -- no matter
where that device or enhancement was used -- would qualify as
such. In fact, in a more recent case, this court explicitly
rejected the suggestion that Campbell contains such a per se
rule. See State v. Wacker, 317 Or 419, 426 n 12, 856 P2d 1029
(1993) (use of light-enhancing device ("starscope") to aid in
seeing activity in a car parked in a parking lot).[4]
We also disagree with the Court of Appeals' suggestion
that the fact that a dog sniff involves no invasion of protected
space is inconsequential to the constitutional analysis. Our
cases suggest that some form of invasion of a private space is a
common, although not essential, element of the search construct
under the Oregon Constitution. Compare, e.g., State v.
Dixson/Digby, 307 Or 195, 211-12, 766 P2d 1015 (1988) (police
entry into undeveloped land with "No Trespassing" signs would be
search); Campbell, 306 Or at 172 (trespassory act of attaching
tracking device to car was a search); State v. Bridewell, 306 Or
231, 759 P2d 1054 (1988) (entry into house and workshop without
statutory authority was search); State v. Kosta, 304 Or 549, 554,
748 P2d 72 (1987) (opening of car trunk was a search); State v.
Kock, 302 Or 29, 725 P2d 1285 (1986) (opening car door and
reaching in to seize package was a search); with State v.
Ainsworth, 310 Or 613, 801 P2d 749 (1990) (observation from
lawfully positioned helicopter not a search); State v. Jackson,
296 Or 430, 677 P2d 21 (1984) (walking around and looking in
windows of car is not search); State v. Louis, 296 Or 57, 672 P2d
708 (1983) (telephoto photograph through living room window from
across street not a search; camera captured image visible from
the public sidewalk). True, all those cases involved the use of
(and, on occasion, the modest enhancement of) ordinary human
powers of perception and observation. A dog is not a human; this
case thus is different. But it is not different with respect to
the pivotal question, which is whether the police invaded a
protected privacy interest.
Commonly, a search involves some form of invasion into
private space. In so noting however, we are not attempting to
dispose of or supplant our traditional construction of Article I,
section 9, as protecting privacy interests, i.e., the
individual's interest in freedom from certain forms of
governmental scrutiny. See Dixson/Digby, 307 Or at 206;
Campbell, 306 Or at 170. We continue to adhere to that
construction. At the same time, however, we acknowledge that
private space and privacy interests often are inextricably
intertwined. That is so because privacy interests generally are
not self-announcing and, with a few possible exceptions, can be
recognized only by their association with a private place, i.e.,
by the fact that an object is kept or conduct occurs in a place
that legitimately can be deemed private. See, e.g.,
Dixson/Digby, 307 Or at 211-12 (defendant had protectable privacy
interest in activity on undeveloped privately owned land only to
the extent that he manifested an intent to exclude others by
erecting fences or "no trespassing" signs). Ultimately, then,
the privacy interests that are protected by Article I, section 9,
commonly are circumscribed by the space in which they exist and,
more particularly, by the barriers to public entry (physical and
sensory) that define that private space.[5]
That is not to say that, to qualify as a search, the
invasion always must be of the type that the law traditionally
has labeled as a "trespass" -- an actual physical intrusion. As
anyone who lives in the modern world should know, private space
can be invaded by technological as well as physical means.
Clearly, if Article I, section 9, is to have any meaning, it must
be read in light of the ever-expanding capacity of individuals
and the government to gather information by technological means.
It must, in other words, speak to every possible form of invasion
-- physical, electronic, technological, and the like.
That being said, we turn to the present case, involving
the use of a dog to detect the presence of a particular odor
caused by the presence of odor molecules in the air outside a
clearly defined, private space. Obviously, that sort of
examination does not involve a physical invasion into private
space. The question, then, is whether it involves a
constitutionally significant invasion of a different sort.
The argument might be made that, because it suggests
something about the contents of a private space, a dog sniff is
at least a figurative invasion into that space. We do not
ascribe to that view. The police regularly and lawfully make
observations from the exteriors of enclosed spaces and draw
reasonable inferences about the contents of those spaces that no
one considers to be a violation of Article I, section 9. See,
e.g., State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986)
(seizure of transparent vial containing white powder did not
violate Article I, section 9; police had probable cause, based on
vial's exterior, to believe that it contained a controlled
substance).
On the other hand, some police techniques clearly do
involve technological or figurative invasions of privacy
interests. High-powered telescopes, parabolic sound gathering
devices, and infrared cameras all are able to gather ordinarily
imperceptible information (in the form of light rays, sound
waves, or heat waves) from the interior of an enclosed space as
it emanates from that space. Although such devices can operate
from an external and public place, their use is invasive
nevertheless, because they provide information from an enclosed
space about the enclosure's contents that a police officer,
standing at a lawful vantage point, cannot detect with ordinary
human powers of perception. That is, they constructively move
the observing police officer into the private space. Superficially, one might argue that dog sniffs fall
into that category -- that trained police dogs perceive odor
molecules as they emanate from an enclosed space and then
indicate the contents of the enclosure by their reactions. But
dog sniffs do not provide the kind of direct access to the
interiors of enclosed spaces that the aforementioned devices
provide. Dog sniffs operate on a sample of air whose origins are
unknown. One may infer from the fact that a dog detects the
presence of a substance in the public airspace surrounding an
enclosure that the enclosure contains that substance. However,
that would only be an inference. For the purposes of both the
dog and its human interpreter, the substance that is detected
remains an ambient substance in the public airspace. As such,
dog sniffs do not extract information from the interior of a
private space, either literally or figuratively. They are not
invasive in any sense of the word.
The clear import of the foregoing is that, at least
when they are conducted in a public place, dog sniffs are not
searches. And, because they are not, the protections of Article
I, section 9 -- including the warrant requirement -- do not
apply. The Court of Appeals erred in concluding otherwise in
Juarez-Godinez, and its reliance on that interpretation in the
present case likewise was erroneous.
At the Court of Appeals, defendant also argued that the
dog sniff was unlawful under the United States Constitution. His
argument is brief and primarily relies on one federal circuit
court case, United States v. Thomas, 757 F2d 1359 (2d Cir 1985),
to the effect that use of a trained dog to sniff the hallway
outside of a suspect's apartment is a search requiring a warrant.
We are not persuaded. First, Thomas itself would
appear to be questionable law, in light of a number of Supreme
Court and federal circuit court decisions holding that dog sniffs
are not searches. See, e.g., United States v. Place, 462 US 696,
103 S Ct 2637, 77 L Ed 2d 110 (1983) (dog sniff of luggage in
transit through an airport is not a search); U.S. v. Colyer, 878
F2d 469 (D C Cir 1989) (dog sniff in public corridor on sleeper
car of train was not a search); U.S. v. Lingenfelter, 997 F2d 632
(9th Cir 1993) (dog sniff of public alleyway between warehouses
not a search); U.S. v. Ludwig, 10 F3d 1523 (10th Cir 1993) (dog
sniff of car in motel parking lot not a search). Second, even if
Thomas were good law, it is irrelevant to the present facts: By
its own terms, Thomas appears to be limited to dog sniffs of
dwellings.[6]
The sniff at issue here, of a storage unit, more
closely resembles the circumstances in Lingenfelter, i.e., a
sniff of the exterior of a warehouse, which was held not to be a
search.
In short, we find no support for defendant's suggestion
that the dog sniff at issue was a search under the Fourth
Amendment. The trial court thus was correct in denying
defendant's motion to suppress on those grounds. Contrary to
defendant's view, the police acted lawfully when they conducted
the dog sniff at issue without first obtaining a judicial
warrant.
Having disposed of defendant's dog sniff argument, we
proceed to his alternative argument -- that the motion to
suppress should have been granted, because the evidence at issue
was derived from an unlawful seizure. The seizure to which
defendant refers is the padlocking of defendant's storage unit.
That seizure was unlawful, in defendant's view, because it was
not authorized by a judicial warrant and was not justified by
exigent circumstances or any of the other recognized exceptions
to the warrant requirement.
The state recognizes that the act of padlocking was a
seizure -- and rightly so. As we previously have noted, property
is "seized" for the purposes of Article I, section 9, when the
police significantly interfere with a person's ownership and
possessory interests in the property. Owens, 302 Or at 207.
Padlocking the unit represented significant interference with
respect to the unit. At least in theory, it deprived defendant
of the use of the unit and access to its contents.
Although the state concedes that padlocking the unit
was a seizure, it does not concede that that act was unlawful for
lack of a warrant. In that regard, the state maintains that
padlocking the unit involved such a minimal intrusion on
defendant's rights that no warrant was required. In so arguing,
the state relies on various treatises and cases from other
jurisdictions to the effect that the police may "secure" a
residence from the outside without first obtaining a warrant.
The reasoning offered for that distinction -- a distinction that
the state finds relevant in the present case -- is that securing
premises from the outside invades only possessory rights, which,
relative to privacy rights, are of secondary importance in the
constitutional scheme. See, e.g., Segura v. United States, 468
US 796, 806, 104 S Ct 3380, 3386, 82 L Ed 2d 599 (1984)
(suggesting that invasion of possessory rights are less
significant than invasions of privacy rights); State v. Solberg,
66 Wash App 66, 831 P2d 754 (1992), rev'd, 122 Wash 2d 688, 861
P2d 460 (1993) (no warrant required to secure premises from
outside when police have probable cause). See also, Wayne R.
LaFave, 3 Search and Seizure § 6.5(c) (3rd ed 1996) (discussing
"impoundment" of premises to prevent loss of evidence).
We do not agree with the state's suggestion that
possessory rights deserve less protection than privacy rights.
Whatever other jurisdictions may have said about the subject, it
is clear that Article I, section 9, speaks to both types of
interests and that, with a few well-recognized exceptions, a
warrant is required even when only possessory rights are
implicated. See, e.g., Juarez-Godinez, 326 Or at 8-9
(warrantless seizure of car offended Article I, section 9).
Padlocking the storage unit in this case was no less of a seizure
because it occurred from the outside.[7]
In the absence of a
warrant, it was unlawful.
In its final argument, the state contends that, even if
the seizure was unlawful, the unlawfulness was not causally
related to the seizure of the evidence at issue and, therefore,
provides no grounds for suppression. In that regard, the state
points out that the police obtained the evidence at issue in a
search of the storage unit pursuant to a warrant and that,
logically, the locking of the unit contributed nothing to the
state's uncovering of that evidence. Under those circumstances,
the state contends, the evidence was not obtained in violation of
defendant's right under Article I, section 9, and should not be
suppressed.
Defendant agrees that unlawful police conduct requires
suppression only when there is a causal connection between the
conduct and the evidence at issue. He argues, however, that the
requisite causal connection exists in this case -- that the
police seized the evidence at issue when they padlocked the
storage unit, and that the subsequent search and seizure that
occurred pursuant to the later-acquired warrant could not unring
that bell. In support of that view, defendant relies on State v.
Hansen, 295 Or 78, 664 P2d 1095 (1983).
In Hansen, police officers suspected that the defendant
had marijuana in his home and seized the residence unlawfully by
entering it and "securing" it until a search warrant arrived.
Although the police performed a cursory search of the residence
when they first entered it, they did not use any information
gleaned from that search in their application for a search
warrant. Hours later, the search warrant arrived and the police
obtained marijuana evidence in the ensuing search. This court
nonetheless concluded that, because the evidence at issue was
primary evidence, i.e., the very evidence the officers were
seeking when they committed the illegality, it must be
suppressed. In particular, the court concluded that, when the
residence was seized, any later-discovered primary evidence in
the residence also was seized. That was so because, in view of
the fact that the purpose of securing the residence was to secure
any evidence of marijuana possession, the act of securing the
residence "as effectively reduced the marijuana to the control of
the trespassing police as if they had actually discovered and
taken physical possession of it." 295 Or at 97.
Defendant contends that the seizure at issue in the
present case is no different -- that because the evidence
obtained was of the very sort that the police were anticipating
when they unlawfully seized the storage unit, that evidence also
was unlawfully seized at the time of the padlocking. Under
Hansen, defendant argues, that evidence is subject to
suppression.
Defendant does acknowledge that, in a more recent case,
State v. Sargent, 323 Or 455, 918 P2d 819 (1996), involving facts
very similar to those in Hansen, this court reversed a
suppression order on the ground that there was no logical
connection between the unlawful securing of the residence and the
discovery of what was, indisputably, primary evidence. He
argues, however, that Sargent does not represent a change in the
court's position -- that the two cases are distinguishable
factually and that they ultimately deal with different aspects of
Article I, section 9. In particular, he contends that Sargent is
concerned only with police interference in privacy rights, i.e.,
searches, while Hansen is concerned with police interference with
property rights, i.e., seizures.
We do not agree that Sargent and Hansen are that easily
distinguished. It is clear that the factual distinction to which
we alluded in Sargent -- between an unlawful entry into a private
residence and the "seizure of a residence and its contents [that]
continued beyond a reasonable time" -- did not dictate the
ultimate outcome in that case: Ultimately, we assumed that an
unlawful seizure had occurred, but concluded that that seizure
had no effect on the subsequent valid search. 323 Or at 462-63.
Moreover, it also is clear that Sargent was argued by the parties
in terms of Hansen -- in terms, that is, of the validity of an
asserted seizure which, according to the defendant, was
accomplished when the police secured the residence. The fact
that we chose to ignore that rationale and, instead, couched our
analysis in terms of the validity of the search is an indication
that the seizure rationale was unpersuasive -- that, regardless
of what we said in Hansen, no seizure of the evidence at issue
occurred until the police seized it directly upon searching the
residence. Ultimately, Sargent must be read as tacitly rejecting
Hansen, at least to the extent that Hansen holds that unlawful
seizure of property necessarily triggers suppression of any
evidence contained therein, whether or not the police
subsequently obtain lawful authority to search that property.
That we no longer adhere to the view in Hansen should
not be surprising. Hansen was decided in an era when this court
made little effort to evaluate Oregon's constitutional guarantees
as separate from those in the United States Constitution. Hansen
thus appears to have been an attempt to vindicate the "police
deterrence" rationale of the Fourth Amendment -- that is, to
prevent the police from deriving any benefit from the unlawful
practice of seizing a residence in mere anticipation of obtaining
a warrant to search for evidence of suspected crimes. This court
since clearly has rejected that deterrence rationale as foreign
to the Oregon search and seizure provision, holding, instead,
that the Oregon exclusionary rule exists to vindicate a personal
right to be free from unlawful searches and seizures. See
Kosta, 304 Or at 553 (so stating); Sargent, 323 Or at 462 n 4
(same). To support that purpose, it is sufficient to suppress
only evidence that is actually obtained out of an illegal search
or seizure. The police may gain some degree of control over the
contents of private property when they "secure" that property,
but they do not obtain evidence out of such a seizure.
We do not deny that, in some circumstances, the act of
securing certain property may permit the police to obtain
evidence that otherwise would not be available to them. However,
in the present case, it clearly did not. No one attempted to
gain access to the unit to remove the evidence before the search
warrant was executed.[8]
As such, the padlock, although unlawful,
was irrelevant. The evidence would have been obtained even in
the absence of the unlawful police conduct. The mere fact that
evidence was discovered after that unlawful conduct does not
require suppression. See also State v. Rodriguez, 317 Or 27, 39,
854 P2d 399 (1993) (unlawful arrest did not automatically prevent
later-obtained consent to search from being valid). The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
"No law shall violate the right of the people to
be secure in their persons, houses, papers and effects,
against unreasonable search, or seizure; and no warrant
shall issue but upon probable cause, supported by oath,
or affirmation, and particularly describing the place
to be searched, and the person or thing to be seized."
[2]
The trial court found that the general public had
access to that area. Because that finding is supported by
evidence in the record, we are bound to accept it. Ball v.
Gladden, 250 Or 485, 487, 443 P2d 621 (1968) (stating
proposition).
[3]
Although we recently reversed the Court of Appeals'
Juarez-Godinez decision, State v. Juarez-Godinez, 326 Or 1, 942
P2d 772 (1997), that reversal rested on the theory that the
detention of the defendant's car was an impermissible seizure.
Our decision left unanswered the question whether a dog sniff is
a search.
[4]
Moreover, it should be clear from our cases that at
least some enhancements may be used without triggering
constitutional concerns. See, e.g., State v. Wacker, 317 Or 419,
419-27, 856 P2d 1029 (1993) (use of starscope was not a search);
State v. Louis, 296 Or 57, 672 P2d 708 (1983) (no search when
police used telephoto lens to photograph activities inside of
home from other side of street).
[5]
Defendant suggests that Campbell is to the contrary.
It is not. Indeed, Campbell involved a clear form of invasion, a
trespass: The tracking device at issue was attached without
permission to the defendant's privately owned vehicle.
[6]
Thomas acknowledged that Place suggests that dog sniffs
are not searches, but distinguished that case on the ground that
it did not involve the heightened expectation of privacy that a
person has in a dwelling. Thomas, 757 F 2d at 1366-67.
[7]
Neither do we agree with the state's suggestion that
the seizure was constitutionally insignificant because defendant
was in jail and in no position to exercise his possessory rights
in the storage unit. The fact that one cannot personally
exercise one's possessory rights does not preclude a conclusion
that such rights have been violated. See, e.g., Juarez-Godinez,
326 Or at 8 (seizure of car violated driver's right against
unreasonable search and seizure even though driver was under
arrest and unable to drive it).
[8]
The trial court found that no one had attempted to gain
access to defendant's storage unit before the search warrant was
executed. That finding is supported by evidence in the record
and we accept it.
[1]
Article I, section 9, provides: