State v. Doyle

• Decision Date: 19 February 2003
• Citation: 63 P.3d 1253,186 Or. App. 504
• Parties: STATE of Oregon, Respondent, v. Patricia Carol DOYLE, Appellant.
• Court: Oregon Court of Appeals

63 P.3d 1253

186 Or. App. 504

STATE of Oregon, Respondent, v. Patricia Carol DOYLE, Appellant.

99CR1288MS; A112839.

Court of Appeals of Oregon.

Argued and Submitted November 26, 2002.

Decided February 19, 2003.

David E. Groom, Acting Executive Director, Office of Public Defense Services, and Meredith Allen, Deputy Public Defender, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

BREWER, J.

Defendant appeals from her convictions for possession, delivery, and manufacture of a controlled substance. In her sole assignment of error, defendant challenges the trial court's denial of her motion to suppress evidence found during a search of her motel room. The trial court made extensive findings of fact. Defendant does not challenge those findings; therefore, they bind us on appeal. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). We review the court's legal conclusions for errors of law, id., and reverse and remand.

On October 23, 1999, Officer Craig of the Bend Police Department was dispatched to a motel based on an anonymous report that drug activity was taking place "in the room directly below room 153." When Craig arrived at the motel, the desk clerk told him that room 147 was directly below room 153. The clerk also told Craig that room 147 was registered to defendant and that the registration form provided for two people to be staying in the room.

At Craig's request, two backup officers were dispatched to the motel. The officers, Gregory and Grant, accompanied Craig to the door of room 147. Craig knocked on the door. Defendant answered the door but did not open it fully. She stood in a position to block Craig's view of the interior of the room and immediately stated to the other occupants, "See, I told you that you were too loud." The officers did not enter the room and, within a few minutes, left the area of the door. Defendant shut the door.

Craig then spoke with the motel housekeeper, who occupied a room adjacent to room 147. The housekeeper told Craig that she had observed nothing unusual, except that she had seen a male and female enter the room, stay a short time, and leave. She stated that she recognized the male as someone she had heard was involved in the sale of drugs.

The three officers discussed the situation and determined that they did not have probable cause to obtain a search warrant or make a warrantless entry into defendant's room. They decided to conduct a "knock and talk," a strategy in which an officer

"goes to the door of a subject's residence with the intent [of] contacting the subject and talking with [him or her] about the police concerns. The officer also is hopeful that during the knock and talk the subject will talk with the officer, allow a search or otherwise cooperate with the police inquiry."

The officers decided to tell the occupants that they had come to the motel to investigate a complaint about drug activity occurring in the room. They returned to the door of room 147, and Craig knocked on the door. Christa Cardonia opened the door. Craig asked her if the officers could come into the room and speak with the people inside. Cardonia fully opened the door, stepped aside, and gestured for the officers to enter the room.

Craig walked into the room and stood with his back to the wall. Four people were inside the room. A man, Doyle, was sitting on the bed watching television. Another woman, Wilcox, was standing on the far side of the bed. Cardonia walked back into the room and remained standing. Defendant was standing in the vanity area, near the bathroom, in a manner that blocked Craig's view of the vanity area. Grant entered the room and stood near the door. Gregory stood several feet inside the entry way and had an unobstructed view of the vanity area.¹ Gregory saw something inside a multicolored bag in the vanity area. Gregory also saw defendant take a small dark object out of her purse and place it in the left pocket of her pants. Gregory then asked defendant if he could talk to her, and she agreed. Gregory told defendant that he had seen, in plain view inside the multicolored bag, marijuana pipes and two glass ampules that contained a white powder residue. Gregory asked defendant if he could look inside the bag, and defendant consented. Gregory asked defendant whom the bag belonged to, and she told him that she had found it in a trash can.

Gregory had extensive training and experience in narcotic identification and investigation. He recognized the white powder in the bag as a controlled substance. He then asked if there were weapons in the room. Defendant told him that there was a gun in the room, and she moved toward its location. Gregory blocked defendant from getting the gun, then arrested her. After advising defendant of her Miranda rights, Gregory asked her for consent to search the room. Defendant was nervous and told Gregory, "Well, you might as well. You're going to anyway."

Gregory told defendant that she could withhold consent and that the police would honor her decision. He told her that he could seek a search warrant and that a judge might grant or deny that request. Defendant consented to allow the officers to search the room. She also specifically consented to a search of her purse, her front pocket, and a black zippered bag inside the purse. In addition to the powder that he had found in the glass ampules, which proved to be methamphetamine, Gregory found almost a quarter pound of methamphetamine in the black zippered bag, as well as other evidence of drug offenses.

The officers were in uniform and were wearing badges. Their weapons remained holstered throughout their encounter with the occupants of the room. The trial court found that the atmosphere in the room was calm and that "there were no threats, no flagrant misconduct, no coercion, no promises."

Defendant was charged with possession, delivery, and manufacture of a controlled substance. She moved to suppress the evidence that the officers found in the motel room. The trial court denied the motion and, after a trial to the court on stipulated facts, convicted defendant of each of the three charged offenses. As noted, on appeal, she assigns error only to the denial of her motion to suppress.

Defendant argues that the warrantless searches of her motel room and personal effects were unreasonable under Article I, section 9, of the Oregon Constitution.² Defendant concedes that she consented to the searches, and she does not contend that her consent was involuntary.³ However, she argues that Cardonia did not have actual authority to consent to the police officers' initial entry into the room, that the entry was thus unlawful, and that "all evidence obtained inside the room was fruit of the poisonous tree." The state responds that suppression properly was denied on one of two grounds: (1) defendant consented to the entry through her conduct; or (2) defendant retroactively consented to the officers' entry, and the officers did not exploit any illegality arising from their initial entry in seeking defendant's consent to search the room and her personal effects.

The state does not argue that Cardonia had actual authority to consent to the officers' entry into the motel room. See State v. Ready, 148 Or.App. 149, 153-55, 939 P.2d 117,

rev. den., 326 Or. 68, 950 P.2d 892 (1997) (third party consent to enter defendant's premises must be based on actual, not apparent, authority). Accordingly, the question of whether the officers lawfully entered the room reduces to whether or not defendant consented to their entry.

Defendant urges that she did not consent to the officers' entry. She primarily relies on this court's decision in State v. Edgell, 153 Or.App. 108, 956 P.2d 988 (1998). In Edgell, the defendant was one of three passengers in a car. A police officer stopped the car and obtained the driver's consent to search the car. The officer found a purse-like bag inside the car, emptied it, and found a controlled substance inside. The officer then learned that the bag belonged to the defendant. The defendant appealed from her conviction for possession of a controlled substance, arguing that the car's driver lacked authority to consent to a search of her bag. The state argued that the driver's undisputed actual authority to consent to a search of the car necessarily included authority to consent to a search of the defendant's bag. The state also asserted that "the burden was on [the] defendant to object to any search and that, by her silence, [the] defendant consented to the search of her bag." Id. at 111, 956 P.2d 988. We reversed the trial court's denial of the defendant's motion to suppress the evidence found in the bag. We reasoned:

"Contrary to the state's argument, [the driver's] actual authority to consent to a search of the car did not give her actual authority to consent to a search of defendant or her belongings. Because [the driver] did not have authority to consent to the search of defendant's bag, it cannot be said that defendant was aware of [the driver's] consent and thus, that defendant consented by her silence."

Id. at 112, 956 P.2d 988 (citations omitted).

This case is distinguishable from Edgell. First, Cardonia did not purport to consent to a search of defendant's property. Defendant herself consented to the search; Cardonia merely consented to the officers' initial entry into the room. Thus, unlike in Edgell, the question of a third party's authority to consent to a search of another person's property is not at issue here. Second, the holding in Edgell followed from our unwillingness to endorse the extension of a third party's actual authority to consent to a search of broader premises to include authority to consent to a search of a defendant's separately owned property...