State v. Goldberg

• Citation: 309 Or.App. 660,483 P.3d 671
• Decision Date: 10 March 2021
• Docket Number: A167666
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Rachael Patricia GOLDBERG, Defendant-Appellant.
• Court: Oregon Court of Appeals

309 Or.App. 660

483 P.3d 671

STATE of Oregon, Plaintiff-Respondent,

v.Rachael Patricia GOLDBERG, Defendant-Appellant.

A167666

Court of Appeals of Oregon, En Banc.

Argued and submitted January 14, 2020

March 10, 2021

Francis Gieringer, Hillsboro, argued the cause for appellant. On the brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sara F. Werboff, Deputy Public Defender, Office of Public Defense Services.

Dashiell Farewell argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General.

Before Egan, Chief Judge, and Armstrong, Ortega, DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, Mooney, and Kamins, Judges.

JAMES, J.

In furtherance of his investigation of a hit and run vehicle accident, an officer took a piece of broken car bumper from the scene. He entered defendant's private property, stood in the driveway where defendant's car was parked, crouched down to hold the broken piece up to the vehicle like a jigsaw puzzle piece, and took the following photograph:

The state charged defendant with one count of failure to perform the duties of a driver when property is damaged, ORS 811.700. At trial, defendant argued that the officer's actions constituted a warrantless search and moved to suppress. The state argued that the officer's location in the driveway was consistent with a social visitor, and that by virtue of the fact that the officer did not touch the car, his actions were lawful.

In considering the motion to suppress, the trial court noted, "I don't recall any testimony that there was any touching. We're talking about observations and utilizing some other part to compare." Ultimately, although recognizing this exact fact scenario was not addressed in caselaw, and that "[w]e're kind of on a cusp here," the trial court denied the motion to suppress, relying on a distinction between manipulation and observation:

"It appears to me the officer, under Oregon case law, had a right to be in the front yard in that area, and these were mere—mere observations.

"The fact that he had something in his possession from a victim doesn't mean it's a search of that item. It's not a manipulation of the vehicle, holding it up to compare, I think, is part of the observation."

Defendant was convicted of the sole charge, and now appeals, raising two assignments of error.

We selected this case for en banc consideration to answer this question: Is the fact that an officer didn't touch or manipulate an object determinative as to whether his actions, while being present on private property without a warrant, constituted a search? The answer is no.

As we explain, when an officer is present on private property without a warrant, the touchstone of the inquiry into whether the officer conducted a search is focused on the reasonable scope of permission a landowner holds out to the public for social entry, and the norms of behavior reasonably expected of social visitors. When an officer exceeds the reasonable invitation to the public, either by being at a location not reasonably related to social access, or by behaving in a way contrary to the reasonably accepted norms of behavior for a visitor to the property, a search has occurred. Here, the officer's actions exceeded those reasonably accorded social visitors, and the trial court erred in denying defendant's motion to suppress. As that error was not harmless, we reverse and remand.

"We review the trial court's denial of the motion to suppress for legal error." State v. Miller , 267 Or. App. 382, 383, 340 P.3d 740 (2014). In reviewing a denial of a motion to suppress, we are bound by the trial court's findings of historical fact that are supported by constitutionally sufficient evidence in the record. State v. Martinez , 305 Or. App. 220, 221, 468 P.3d 1021 (2020), rev. den. , 367 Or. 496, 479 P.3d 277 (2021). The facts pertinent to the issue on appeal are brief and undisputed.

Daniel Gonzales, the complainant of the hit-and-run, was driving his truck to work on October 16, 2017, when he felt a vehicle hit the rear of his truck. He saw a white car speed off. He pulled over and inspected his truck, seeing paint transfer marks on the rear passenger quarter panel and tire. He also observed pieces in the road that appeared to have come from the other vehicle, and he collected them and placed them in the truck bed.

Deputy Bryan Holiman went to look at the truck and vehicle parts and photographed them. Based on an internet search of the grill design and other pieces, the deputy believed that the car that struck Gonzales was a white Chevrolet Impala made between 2006 and 2010.

Two days later, Holiman received new information which led him to a friend of defendant's, McLaughlin. McLaughlin knew that defendant drove a white Impala and he had given defendant a ride the day before. McLaughlin told Holiman that the Impala had been in a "fender-bender."

Holiman knew defendant from other contacts and knew that she drove a white Impala with Nevada license plates. Holiman went to the address where he believed defendant was staying and saw a white Impala with Nevada plates parked in the driveway. He approached the Impala and saw that it had front-end damage consistent with the accident report. Holiman left to retrieve the vehicle pieces from Gonzales and returned to defendant's address. He entered the driveway and compared the pieces to the Impala, holding them up against the bumper to reveal that the pieces fit perfectly. He took a photo of him holding the broken piece against the bumper, which was admitted into evidence at the trial. It is the deputy's act of piecing the bumper together and taking that photo that was the focus of the suppression motion, and the subject of this appeal.

Article I, section 9, of the Oregon Constitution, guarantees that "[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure[.]" "[T]he privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right ." State v. Campbell , 306 Or. 157, 163, 164, 759 P.2d 1040 (1988) (emphasis in original). The rights afforded under Article I, section 9, are at their apex in the home—the "quintessential domain protected by the constitutional guarantee against warrantless searches." State v. Louis , 296 Or. 57, 60, 672 P.2d 708 (1983).

In considering whether a violation of Article I, section 9, has occurred, we ask whether the government's conduct "would significantly impair an individual's interest in freedom from scrutiny, i.e. , his privacy." State v. Dixson/ Digby , 307 Or. 195, 211, 766 P.2d 1015 (1988). "[T]he threshold question in any Article I, section 9, search analysis is whether the police conduct at issue is sufficiently intrusive to be classified as a search."

State v. Ainsworth , 310 Or. 613, 616, 801 P.2d 749 (1990) (citing Campbell , 306 Or. at 162-63, 759 P.2d 1040 ). "One indication of whether a government action intrudes on a person's privacy right is whether a private individual would offend social and legal norms of behavior by engaging in the same kind of intrusion." State v. Portrey , 134 Or. App. 460, 464, 896 P.2d 7 (1995).

The protection of Article I, section 9, extends beyond the home to include the curtilage. State v. Breshears/Oliver , 98 Or. App. 105, 111, 779 P.2d 158 (1989). When considering a warrantless entry onto the curtilage of private property, an officer's status as law enforcement affords him no greater right to intrude than any other stranger. See State v. Ohling , 70 Or. App. 249, 252, 688 P.2d 1384, rev. den. , 298 Or. 334, 691 P.2d 483 (1984) ; see also State v. Russo , 68 Or. App. 760, 763, 683 P.2d 163 (1984). If an officer's presence on the property is trespassory, it is an unconstitutional search. See State v. Lee , 120 Or. 643, 649, 253 P. 533 (1927) ; Smith v. McDuffee , 72 Or. 276, 284, 142 P. 558, 143 P. 929 (1914) ; State v. Russo , 68 Or. App. 760, 683 P.2d 163 (1984) ; State v. Brown , 1 Or. App. 322, 461 P.2d 836 (1969), rev. den. (1970).

However, when considering the curtilage surrounding a home there exists an operative, but rebuttable, presumption—that the landowner has impliedly consented to visitors going to the front door of the house. See State v. Ohling , 70 Or. App. 249, 252, 688 P.2d 1384, rev. den. , 298 Or. 334, 691 P.2d 483 (1984). As we said in Ohling ,

"[g]oing to the front door and knocking was not a trespass. Drivers who run out of gas, Girl Scouts selling cookies, and political candidates all go to 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."

Id .

The rebuttable presumption of implied consent to approach the front door of the home is bounded by two considerations: location and behavior. An officer exceeds the implied consent as to location when the officer deviates from the path to the front door and explores other areas of the curtilage where, according to social norms, visitors would not have an implied invitation:

"Going to the back of the house is a different matter. Such an action is both less common and less acceptable in our society. There is no implied consent for a stranger to do so. ‘[W]e do not place things of a private nature on our front porches that we may very well entrust to the seclusion of a backyard, patio or deck.’ State v. Corbett , 15 Or. App. 470, 475, 516 P.2d 487 (1973), rev. den. (1974)."

Id. (brackets in original). Those same social norms constrain the behavior of an officer, even when he is present in a permissible area of the curtilage. "An officer's right to go to the front door of a...