State v. Bridewell

• Decision Date: 13 November 1987
• Citation: 742 P.2d 648,87 Or.App. 316
• Parties: STATE of Oregon, Appellant, v. Jon BRIDEWELL, Respondent. 1233; CA A38352.
• Court: Oregon Court of Appeals

Page 648

742 P.2d 648

87 Or.App. 316

STATE of Oregon, Appellant, v. Jon BRIDEWELL, Respondent.

1233; CA A38352.

Court of Appeals of Oregon.

Argued and Submitted Aug. 25, 1986.

Decided Sept. 9, 1987.

Reconsideration Denied Nov. 13, 1987.

David Schuman, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

John R. Faust, Jr., Portland, argued the cause for respondent. With him on the brief was Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

VAN HOOMISSEN, Judge.

The state appeals from a pretrial order suppressing evidence seized after a warrantless entry into a "shop" on defendant's property. The dispositive issue is whether the deputies were lawfully in the shop when they inadvertently saw marijuana in plain view. We are bound by the trial court's determination of what actually happened, but not by the court's legal conclusions. Our function is limited to determining whether the legal principles were correctly applied. State v. Davis, 295 Or. 227, 238, 666 P.2d 802 (1983); State v. Warner, 284 Or. 147, 585 P.2d 681 (1978).

Defendant lives alone in a remote area of Wallowa County. Because the road to his property is often difficult to travel, in June, 1985, United Parcel Service asked Rosalee Allen, defendant's friend, who lives in Enterprise, to accept delivery of some packages for him. She consented and telephoned defendant's house to inform him. He did not answer. She left a message for him on his telephone answering machine. He did not call back. Over the next three to four days, she tried repeatedly, but unsuccessfully, to reach him by telephone. Allen became concerned about defendant's welfare. She knew that he was in poor health, that he often engaged in solitary and dangerous logging on his land and that he had been the object of murder threats.

Between 8 and 9 p.m. on the evening of June 16, Allen and her son drove to defendant's property. What she saw there heightened her concern. His dogs were chained to his front porch and were unattended. The front door was open and both of his pickups were gone. She called out for him, but received no answer. She entered the house and found it quite a bit messier than usual. "There was stuff all over the floor, paper, plates, clothes were kind of thrown around." She could not get the bathroom door open. An empty pistol holster was lying on the couch. "That raised [her] concerns about what might have happened to him."

Allen then drove down to defendant's shop, which is located about 125 yards from his house, and shined her truck's lights inside. It was very dark outside. The shop also was dark; it appeared empty. Again, she called out for him, but received no answer. She also went to a shed, where defendant kept wolves in a fenced area. Again, she called for defendant; there was no answer. She grew more concerned for defendant's condition, because "he has frequent headaches and [she] thought that if he had been out logging and alone in the woods he could be hurt or [she] thought somebody had hurt him." He had told her that some people had threatened to kill him.

Allen and her son then drove back to Enterprise and reported her concern to the sheriff's dispatcher. Deputy Wagner, who was on patrol in Joseph at that time, drove to the Sheriff's office in Enterprise to take Allen's full statement. She told Wagner that she thought defendant may have been injured or that somebody may have done something to him, and that defendant's house "looked like [it] had been ransacked, it was a mess." She wanted Wagner to go there immediately. She was "very concerned," and had "never been so scared in her life."

It was about 10 p.m. and dark, and Sheriff's department policy favored daylight investigations. Wagner testified that, if he had had a four-wheel drive vehicle available that evening, he was sure that he would have gone to defendant's property immediately, but probably not alone. Allen had told Wagner that the road to defendant's house had been washed out and that he would need a four-wheel drive vehicle to get to the property. No four-wheel-drive vehicle was then available. About 11 p.m., Wagner contacted deputy Prince, who was in Wallowa and had a four-wheel drive vehicle. He agreed to meet Wagner in Enterprise about 9 the following morning. The deputies were concerned about their own personal safety. ¹ Wagner told Allen that they would go to defendant's place first thing the next morning.

Early the following morning, deputies Wagner, Prince and Young drove to defendant's property. When they arrived, they found conditions outside the house as Allen had described them. Both of defendant's dogs were still chained to the front porch; they looked thin. There was no food or water around. The deputies bypassed the dogs, went on the porch and called out defendant's name. Receiving no response, they walked around the house and again called out for defendant. No one answered. They entered the house and saw "clothes, dishes, various types of paper and old books, garbage paper, dog droppings, and stuff like that scattered throughout the house." An empty pistol holster was on the couch. They then checked the upstairs rooms, but found no one. They went outside and walked around the house towards the horse corral. They saw defendant's shop, through the trees. They then walked to the shop.

The shop consists of a large room with garage-sized doors at each end, with several smaller rooms off the large one. As the deputies entered the large room, they saw that a light was on, and noises were coming from within a room. They walked toward the noise and, in the process, looked into an open room. One of them recognized marijuana plants and grow lights about ten feet away. The deputies called out defendant's name. He emerged from the open room and closed the door behind him. They asked his consent to enter that room; he declined. The deputies entered the room and found about 350 marijuana plants. They arrested defendant and seized the marijuana plants and paraphernalia used in its cultivation.

The trial court stated, in relevant part:

"[I]t appears to the Court that at the time this welfare check occurred and specifically with respect to entry into the garage, there was no evidence of anyone in need of immediate aid. There was no compelling need to assist any persons within or any urgent need to render aid and assistance. * * *.

"And so the Court finds that there was no legal and valid intrusion into the shop.

" * * *

"And it's my finding that exigent circumstances did not exist for the seizure of the plants at that time and that the proper procedure would have been for the officers to have gone back and received a Search Warrant to search the room. * * *

"Mr. Bridewell was under arrest. He wasn't going anywhere and I don't think that the premises were in jeopardy. I don't think there was any (inaudible word) evidence that the evidence was going to be destroyed or that it would be lost.

"And so I'm going to allow the motion to suppress and will enter an order at this time.

"I just--There's no reason that--As I view this, there's no reason why a warrant was not obtained because they certainly had probable cause."

The state contends that the trial court erred in suppressing the evidence. It argues that, either under the emergency doctrine or in the exercise of their community caretaking function, the deputies were lawfully in defendant's shop when they inadvertently saw marijuana in plain view. Defendant argues that no emergency existed and that, therefore, the warrantless seizure was unlawful. Defendant relies primarily on State v. Atkinson, 298 Or. 1, 688 P.2d 832 (1984), State v. Davis, supra, and State v. Walle, 52 Or.App. 963, 630 P.2d 377 (1981).

On these facts, it makes no sense to speak of warrants or the warrant requirement. When they first went to defendant's property, the deputies did not have probable cause to seek a warrant to search for any purpose. Therefore, no search warrant could have issued. See ORS 133.555(2); ORS 133.535; State v. Atkinson, supra; see South Dakota v. Opperman, 428 U.S. 364, 370 n. 5, 96 S.Ct. 3092, 3097 n. 5, 49 L.Ed.2d 1000 (1976) (probable cause inapplicable in noncriminal situations). Therefore, the case must be decided on the basis of reasonableness. See State v. Newman, 292 Or. 216, 221, 637 P.2d 143 (1981); State v. Tourtillott, 289 Or. 845, 865, 618 P.2d 423 (1980). Was it reasonable for the deputies to go to defendant's property in response to Allen's plea? We conclude that it was reasonable.

Plain View Doctrine

The plain view doctrine provides that objects falling within the plain view of an officer who has the right to be in a position to have that view may be seized without a warrant. The doctrine is concerned with seizures. It assumes that the officer is already lawfully in a constitutionally protected place. It has three requirements: (1) a valid intrusion, (2) an inadvertent discovery ² and (3) that what the officer sees is evidence. See Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S.Ct. 2022, 2037-39, 29 L.Ed.2d 564 (1971); State v. Roles, 75 Or.App. 63, 66, 705 P.2d 227 (1985); State v. Illingworth, 60 Or.App. 150, 652 P.2d 834 (1982), rev. den. 294 Or. 569, 660 P.2d 683 (1983); State v. Walle, supra, 52 Or.App. at 967, 630 P.2d 377; State v. Sagner, 12 Or.App. 459, 472, 506 P.2d 510, rev. den. (1973). In this case, the trial court found that the second and third requirements had been satisfied. There is evidence in the record to support those findings, and we are bound by them. State v. Warner, supra; Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). Therefore, we need only to determine whether the deputies were lawfully in defendant's shop when they saw the...