State v. Cardell

• Decision Date: 13 March 2002
• Citation: 41 P.3d 1111,180 Or. App. 104
• Parties: STATE of Oregon, Appellant, v. Steve CARDELL, Respondent.
• Court: Oregon Court of Appeals

41 P.3d 1111

180 Or. App. 104

STATE of Oregon, Appellant, v. Steve CARDELL, Respondent.

98-2706; A105750

Court of Appeals of Oregon.

Argued and Submitted June 12, 2001.

Decided March 13, 2002.

Laura S. Anderson, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Alan D. Reynoldson, Newport, argued the cause and filed the brief for respondent.

Before Haselton, Presiding Judge, and Linder and Wollheim, Judges.

LINDER, J.

Defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.010, and moved to suppress, among other things, the results of field sobriety and breathalyzer tests that he took after the police questioned him. The trial court granted defendant's motion, concluding that the investigating police officer's touching of defendant's car tires—to determine if they were hot—was an unlawful search under Article I, section 9, of the Oregon Constitution,¹ and that all evidence obtained after that search should be suppressed. We affirm in part, reverse in part, and remand.

The facts are largely undisputed. The Toledo Police Department received an anonymous report that a car was "racing" in the area of 10th and A streets. Officer Gillespie, who was at the station when the call came in, left the station and proceeded to that general area. While en-route, Gillespie received a dispatch relaying the fact that the suspect car was a blue Pontiac GTO. He arrived three to five minutes later and saw a car matching the description parked in the driveway of a home on the west side of A Street. Toledo is a small town, and Gillespie had seen a car matching that description on a number of prior occasions. He also knew that defendant owned a blue GTO, and he previously had spoken to defendant at the home on A Street.

Gillespie walked up the driveway on his way to the front door of the residence. As he was passing the car, he stopped and felt the rear tires to determine if they were hot. In Gillespie's opinion, the tires were hotter than they would be due to normal driving and the slippage of the tires on the road likely had caused the tires to become that hot.

After touching the tires, Gillespie proceeded to the door of the residence. The record is silent as to what, specifically, occurred when the residents answered the door, other than to show in the most general terms that Gillespie spoke with defendant, defendant's girlfriend, and defendant's girlfriend's mother. Based on Gillespie's observations and his communications with all three parties, he concluded that defendant had been driving the blue GTO and that he had done so while under the influence of alcohol. After administering field sobriety tests, Gillespie arrested defendant and transported him to the police station. At the police station, the police administered a breathalyzer test.

Before trial, defendant moved to suppress "all observations, statements, admissions, tests or confessions of the accused, and the fruits thereof." His principal contention was that Gillespie's touching of the tires was a warrantless search that violated Article I, section 9, of the Oregon Constitution. He argued that the court should suppress all evidence that the police obtained after that illegal search, because it was obtained through exploitation of the illegal search of the tires. The trial court agreed that touching the tires was an unlawful search. The trial court also concluded that the state bore the burden to prove that the evidence obtained after that illegal search, including the field sobriety and breathalyzer tests, was not derived from the illegal search of the tires. The trial court determined that the state did not produce evidence to satisfy its burden in that regard and, consequently, it granted defendant's motion to suppress.

On appeal, the state assigns error to the trial court's suppression order. We review that order for errors of law. State v. Stroup, 147 Or.App. 118, 120, 935 P.2d 438 (1997). In reviewing the order, we are bound by the trial court's findings of historical fact if they are supported by evidence in the record. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). If the trial court failed to make findings on particular issues, we presume that it decided the facts in a manner consistent with its ultimate conclusion relating to the lawfulness of the search. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993).

We begin with whether Gillespie's touching of the tires was a search under Article I, section 9, of the Oregon Constitution.² As earlier described, when Gillespie touched the tires, the car was parked in the driveway of the home. In walking past the car, Gillespie did nothing unlawful. Visitors, including the police, have implied consent to enter the driveways and front yards of homes, in the absence of some overt action by the residents to exclude them. As we reasoned in State v. Ohling, 70 Or.App. 249, 253, 688 P.2d 1384, rev. den. 298 Or. 334, 691 P.2d 483 (1984):

"Going to the front door and knocking [is] not a trespass. Drivers who run out of gas, Girl Scouts selling cookies, and political candidates all go to the front doors of residences on a more or less regular basis. Doing so is so common in this society that, unless there are posted warnings, a fence, a moat filled with crocodiles, or other evidence of a desire to exclude casual visitors, the person living in the house has impliedly consented to the intrusion."

Whether officer Gillespie could touch the tires, however, is a distinct and different issue. The scope of a homeowner's implied consent to approach the home is limited to those acts reasonably undertaken to contact the residents of the home; such consent does not extend, for instance, to an exploratory search of the curtilage. See State v. Somfleth, 168 Or.App. 414, 425, 8 P.3d 221 (2000)

(officers' conduct in going to the defendant's back door unlawfully invaded the curtilage of the defendant's home).³

State v. Portrey, 134 Or.App. 460, 896 P.2d 7 (1995), is closely analogous. There, police walked to the defendants' front porch on a matter related to a recent burglary. While on the porch, one of the officers observed a pair of boots. The officer turned the boots over to inspect the soles and to determine if the soles matched the shoe prints left at the scene of the crime. Based on his observations, the officer sought and obtained a warrant to search the defendants' home. On appeal, we held that the officer's action was a search that exceeded the scope of the occupants' consent to enter the property:

"[T]he intrusion to which an occupant impliedly consents is limited. One may expect that visitors will stand on the front porch for the purpose of engaging in conversation, but that does not mean that it is expected that visitors will pick up items on the front porch and examine what is not in view. By impliedly consenting to one form of intrusion, an occupant does not necessarily consent to being subjected to other forms of scrutiny as well.

"In this case, defendant's privacy interest continued in the articles on his front porch that were not entirely visible to someone standing there, even though he had impliedly consented to visitors coming to his front door. The officers' actions intruded on a privacy interest defendant maintained in the area around his front door to which defendant had not impliedly or expressly consented."

Id. at 465-66, 896 P.2d 7 (citations omitted).

In this case, to reach the front door of the residence, Gillespie had to walk up the driveway and past the suspect vehicle. He had implied consent to do so. As did the officer in Portrey, however, Gillespie exceeded that consent when he touched the tires in an attempt to obtain information that would aid him in his investigation. The trial court correctly ruled that Gillespie's touching of the tires was an illegal search and that the direct information that he obtained—i.e., that the tires were hot—should be excluded.

As it did at the hearing on the motion to suppress, the state argues alternatively that, even if Gillespie's touching of the tires was a search, it was valid despite the lack of a warrant because it was supported by probable cause and exigent circumstances. The trial court concluded that, had Gillespie encountered the car on the road, he would not have had reasonable suspicion to stop the car. Because the standard for reasonable suspicion is lower than the standard for probable cause, the trial court necessarily rejected the state's probable cause argument when it concluded that Gillespie lacked even reasonable suspicion.

The state has the burden to establish by a preponderance of evidence that a warrantless search is valid. ORS 133.693(4). One means of establishing the validity of such a search is through probable cause and exigent circumstances. State v. Moylett, 313 Or. 540, 548, 836 P.2d 1329 (1992). Probable cause "means that there is a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it." ORS 131.005(11). To satisfy that standard, an officer must subjectively believe that a crime has been committed and that belief must be objectively reasonable in the circumstances. State v. Owens, 302 Or. 196, 204, 729 P.2d 524 (1986). We test probable cause based on the totality of the circumstances and not on isolated facts. State v. Cole/Hood, 87 Or.App. 93, 97, 741 P.2d 525, rev. den. 304 Or. 280, 744 P.2d 1004 (1987).

As earlier described, Gillespie went to the residence where the blue GTO was parked and touched the tires of defendant's car in response to a police dispatch. That dispatch was based on an anonymous tip. An anonymous informant's report that lacks detail as to the basis of the informant's knowledge is not enough, standing alone, to satisfy the less rigorous standard of reasonable...