State v. Illingworth
| Decision Date | 27 October 1982 |
| Docket Number | No. 81-837-C,81-837-C |
| Citation | 60 Or.App. 150,652 P.2d 834 |
| Parties | STATE of Oregon, Respondent, v. Roberta Nancy ILLINGWORTH, Appellant. STATE of Oregon, Respondent, v. Steven Kent ILLINGWORTH, Appellant. ; CA A22909; 81-836-C; CA A22910. |
| Court | Oregon Court of Appeals |
Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for appellants. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Robert E. Barton, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
In these consolidated criminal cases, both defendants appeal convictions for manufacture of a controlled substance. ORS 475.992. There are four assignments of error. 1 Although our discussion is limited to the single question whether marijuana plants found and seized by sheriff's deputies should have been suppressed as being the fruit of an illegal entry onto defendants' property, we affirm the trial court in all respects.
Defendants Steven and Roberta Illingworth are husband and wife and at the time in question lived on ten acres of land in rural Josephine County. On May 31, 1981, one of defendants' neighbors reported to officers of the Sheriff's Department that Steven had driven by in a yellow pickup and fired some type of firearm at him at about 2:00 p.m. that day. There were no other witnesses to the event. Approximately three hours later, 2 two officers drove to defendants' residence. They parked in the driveway at a point near the house, about 25 feet from the back door. The pickup was not in sight. According to one of the investigating officers, because of the nature of the call they approached defendants' house "cautiously." The officers had been told by Steven on other occasions that they were unwelcome on his property unless he called them or they had a warrant. 3 Deputy Klusmann also testified that: (1) he knew that Steven was a good shot with a handgun; (2) he knew that there were long-standing hard feelings between the neighbors and Steven; and (3) he had previously seen Steven driving a yellow pickup. Klusmann walked to the back door and, at a distance of four or five feet from the house, looked through a large kitchen window to see if anyone was watching him. It was then that he observed a small pot with "six to ten two-inch marijuana plants in it." On discovering no one home, he left. On June 7, he obtained a search warrant for the residence and executed it that same day. During execution of the warrant, the marijuana, the subject of these indictments, was seized from a garden patch on defendants' property.
Defendants argue that Klusmann's initial entry onto their property was unprivileged and violated their right to privacy, thereby tainting the officer's "plain view" observations of the marijuana in the residence. They rely heavily on their previous statements to the officers that they were unwelcome on their property unless they were invited or had a warrant. In addition, defendants contend that, because the officers were acting only on the accusation of a neighbor and their entry was made despite the absence of the pickup, there were no exigent circumstances and the entry, and the fruits therefrom, were illegal.
Klusmann's sole purpose in going onto defendants' property was to investigate the reported shooting incident. There was no evidence that he had any suspicion that defendants were growing marijuana, nor was there any evidence that he was using the neighbor's allegations as a pretext to search the premises. His caution in approaching the house in the event...
To continue reading
Request your trial
-
State v. Bridewell
...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,......
-
State v. Slowikowski
...443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971); State v. Bridewell, 87 Or.App. 316, 325, 742 P.2d 648 (1987); State v. Illingworth, 60 Or.App. 150, 652 P.2d 834 (1982), rev. den. 294 Or. 569, 660 P.2d 683 (1983). The requirement that the discovery be "inadvertent" has been questioned ......
-
State v. Foster
...pretrial motion. A defendant who finally prevails on appeal may withdraw the plea." 4. The state relies on State v. Illingworth, 60 Or. App. 150, 652 P.2d 834 (1982). In that case, the officers who approached the defendants' house were concerned that one of the defendants might assault them......
-
State v. Poppe
...observations made through an uncovered window may form a lawful basis for the issuance of a search warrant. State v. Illingworth, 60 Or.App. 150, 652 P.2d 834 (1982), rev. den. 294 Or. 569, 660 P.2d 683 (1983); State v. Mack, 21 Or.App. 522, 532, 535 P.2d 766, rev. den. (1975). Because the ......