State v. Guggenmos

• Decision Date: 05 May 2011
• Docket Number: (TC 0500398CR; CA A133266; SC S057378).
• Citation: 253 P.3d 1042,350 Or. 243
• Parties: STATE of Oregon, Respondent on Review,v.Bobby Lee GUGGENMOS, Petitioner on Review.
• Court: Oregon Supreme Court

350 Or. 243

253 P.3d 1042

STATE of Oregon, Respondent on Review,

v.Bobby Lee GUGGENMOS, Petitioner on Review.

(TC 0500398CR; CA A133266; SC S057378).

Supreme Court of Oregon.

Argued and Submitted Feb. 19, 2010.Decided May 5, 2011.

On review from a decision of the Court of Appeals.^*Robin A. Jones, Senior Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.Douglas F. Zier, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.Before DE MUNIZ, Chief Justice, and DURHAM, BALMER, KISTLER, WALTERS, and LINDER, Justices.^**DURHAM, J.

Defendant seeks review of a decision of the Court of Appeals that affirmed his conviction for possession of a controlled substance. Defendant contends that the trial court erred in denying his motion to suppress drug-related evidence seized by a police officer from defendant's bedroom following what the state describes as a “protective sweep” of the home in which defendant resided. For the reasons set out below, we conclude that the trial court should have granted defendant's motion to suppress. Accordingly, we reverse the decision of the Court of Appeals and the judgment of the trial court.

We take the following facts from the trial court's findings and other record evidence, which we view in the light most favorable to the state. The search at issue occurred on February 9, 2005, when Detective Mogle of the Oregon State Police, acting without a warrant, searched defendant's bedroom in a house located on Third Street in Klamath Falls. According to Mogle's testimony at the hearing on the motion to suppress evidence, an unnamed informant, at some time in the past, had pointed out the house on Third Street to Mogle as a place where people were selling drugs. The informant also had stated that persons in the house hid “wanted people” there. In the past, Mogle had used an informant in an attempt to buy drugs at the house, but the record does not indicate whether that effort was successful.

Mogle also believed that the house on Third Street was “associated” with another house on Fifth Street in Klamath Falls. Either Mogle or an informant had seen two men, Monteith and Fonseca, at the Fifth Street house at some unidentified time in the past. According to Mogle, Fonseca “had warrants,” i.e., he was the subject of one or more outstanding arrest warrants, but Mogle did not explain the basis of the warrants for Fonseca or why the police had not executed them.

Another police officer, Corporal Deese of the Klamath Falls Police Department, testified at the suppression hearing that he had heard from an unidentified source that the Third Street house was a “drug house.” Deese also testified that he had had “previous dealings” with one of the residents of the Third Street house, Tidwell. At one point in his testimony, Deese described Tidwell as a felon who was involved with guns, but later acknowledged that he had confused Tidwell with another person with a similar name, and stated that Tidwell was not a felon and had no history of involvement with guns. Deese testified that two of Tidwell's associates, Monteith and Coatsworth, were involved in guns and that he had seen their cars parked near Tidwell's car at an unidentified place and time in the past.

Deese also had heard from an unnamed informant that there might be drugs in a certain brown pickup truck. On February 9, 2005, Deese saw the brown pickup truck parked in an alley behind the Third Street house and notified Mogle. Mogle asked Deese to accompany Mogle and another police officer, Morrison, to the Third Street house. Mogle planned to conduct a “knock and talk” contact with any residents to learn, if possible, whether any people with outstanding warrants were present. Mogle had no specific wanted person in mind when he formulated that plan.

The police officers drove to the Third Street house. Mogle and Morrison were dressed in plainclothes, not uniforms, and went to the front door; Deese, in uniform, stood outside the back door. Mogle knocked on the front door. After he identified himself and Morrison and displayed a police badge, he was invited inside to the living room. At that point, Tidwell, an adult woman, and a child were present in the living room with Mogle and Morrison. Mogle told Tidwell that he had information that wanted persons might be present and asked to look for them in the house. Tidwell denied that wanted persons were inside the house, and said that only his girlfriend, her child, and someone named “Sam” were there. Tidwell agreed to allow Mogle to search the residence for wanted persons. Mogle asked Tidwell to accompany him in walking through the house, and Tidwell agreed. Tidwell exhibited a cooperative attitude and a conversational tone of voice.

At that point, an event occurred that is central to the state's argument, discussed below, that Mogle subsequently searched defendant's bedroom on the basis of a reasonable suspicion that he or others present faced an immediate threat of serious physical injury. As Tidwell and Mogle began walking past a stairway that descended from the kitchen to a back door, Mogle observed two men running or moving quickly down the stairs. Mogle yelled at them to stop.¹ The two men paused briefly and looked at Mogle, but continued down the stairs and out the back door. They encountered Deese beyond the door and stopped. Morrison remained with the woman and child in the living room, and Mogle and Tidwell joined Deese and the others downstairs. Mogle asked the men why they were running but received no answer.

Mogle had the following information about the people that he had encountered in the house. Mogle had heard Tidwell's name in the past but he could not recall any official contact with him and had no information that he was a violent person. Mogle recognized one of the two men stopped outside the back door—defendant—as someone with whom he had had official contact, but he could not recall the nature of the contact or whether it involved guns or violence. Mogle had not had any previous contacts with the other man, who was later identified as “Sam.” Mogle told Deese to “run” defendant and Sam, that is, to obtain their identification and determine whether any outstanding warrants existed for them.

Mogle went back inside to “clear” the rooms upstairs in the house to determine whether any other persons might be present. The parties agree that Mogle's action was a “search” within the meaning of Article I, section 9, of the Oregon Constitution. Mogle did not request consent from anyone to search the rooms upstairs or, in particular, the bedroom occupied by defendant, and the state does not contend that Mogle's search of that bedroom was a consent search. Mogle testified that he conducted the search in the interest of officer safety. He pointed out that Tidwell had indicated earlier that only one other person, “Sam,” was present in the house, but that, contrary to Tidwell's statement, two men had emerged on the staircase. Mogle was concerned that Tidwell had not been honest about the number of persons present in the house and that Morrison remained in the living room without additional police support.

During the search of the upstairs rooms, Mogle looked into the bedroom that defendant occupied and saw in plain view on a table a mirror with white powder residue and straws. Mogle recognized the items as drug paraphernalia and returned downstairs.

Deese advised Mogle that an outstanding warrant existed for defendant but that no warrants existed for the other man, Sam. Mogle asked Tidwell for consent to search the house for drugs. Tidwell gave consent for all areas of the house except the bedroom that Mogle had just searched, explaining that that was defendant's bedroom. Mogle advised defendant of his Miranda rights, disclosed what he had seen on the bedroom table, and requested consent to search the bedroom. Defendant gave his consent to a second search and made some incriminating statements. Mogle's subsequent search of the bedroom brought to light a plastic bag that had contained methamphetamine. Mogle seized the mirror, straw, and plastic bag.

The state charged defendant with possession of a controlled substance. Before trial, defendant moved to suppress the physical evidence seized from his bedroom and his incriminating statements to Mogle, relying on the search and seizure provisions of the state and federal constitutions.² After a hearing, the trial court denied the motion, concluding that Mogle's observation of two men running down the stairs gave rise to a valid officer safety concern and justified a search of the house to determine who else might be present. Further, the court determined that Mogle subsequently obtained valid consent from defendant to search his bedroom for drugs. The trial court admitted the disputed evidence at trial, and defendant was convicted.

Defendant appealed. The Court of Appeals concluded that Mogle had “stopped” defendant by ordering him to stop as he descended the stairs. However, the court held that the stop was justified by the totality of the circumstances, including the flight by defendant and “Sam,” the informants' reports about harboring wanted persons and past drug activity in the house, and Tidwell's act of misinforming Mogle about the presence of a fourth adult in the house. State v. Guggenmos, 225 Or.App. 641, 645, 202 P.3d 892 (2009). The court also concluded that the circumstances justified Mogle's first entry into defendant's bedroom as part of a protective sweep of the house and that, because the protective sweep was valid, Mogle did not “exploit” an illegality in subsequently obtaining defendant's consent to a second search of his bedroom. Id. at 648–49, ...