State v. Machuca

• Decision Date: 30 September 2009
• Docket Number: A133362.,050647097
• Citation: 218 P.3d 145,231 Or. App. 232
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Thomas Gregory MACHUCA, Defendant-Appellant.
• Court: Oregon Court of Appeals

218 P.3d 145

231 Or. App. 232

STATE of Oregon, Plaintiff-Respondent, v. Thomas Gregory MACHUCA, Defendant-Appellant.

050647097

A133362.

Court of Appeals of Oregon.

Submitted on June 27, 2008.

Resubmitted En Banc August 12, 2009.

Decided September 30, 2009.

Peter Gartlan, Chief Defender, Legal Services Division, and Travis Eiva, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, SCHUMAN, ORTEGA, ROSENBLUM, and SERCOMBE, Judges, and RIGGS, Senior Judge.

SERCOMBE, J.

After a conditional guilty plea, defendant was convicted of driving under the influence of intoxicants (DUII). ORS 813.010. He assigns error to the trial court's denial of his motion to suppress evidence of his blood alcohol content obtained after he consented to a blood draw. Defendant argues that the blood draw was obtained in violation of Article I, section 9, of the Oregon Constitution.¹ For the reasons explained below, we reverse and remand.

We review the denial of a motion to suppress for errors of law and are bound by the trial court's factual findings that are supported by sufficient evidence in the record. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). Thus, we take the salient facts in this case primarily from the trial court's findings.

Defendant was involved in a single-car accident on Naito Parkway in Portland; he suffered injuries and was transported to the hospital emergency room facilities at Oregon Health and Science University (OHSU). Officer Oelke, the first officer on the scene, arrived at approximately 1:52 a.m. Officer Ladd arrived a few minutes later and took over the investigation. By 2:10 a.m., Ladd concluded that there was probable cause to believe that defendant had committed the crime of DUII. Ladd then went to OHSU to investigate further.²

After Ladd's arrival, hospital personnel allowed him to enter the emergency room facilities through a locked entry door, and he was directed by security staff to "emergency room two." Defendant was alone in the room, "lying on a hospital bed receiving some care." There was a very strong smell of alcohol in the room. Defendant, snoring loudly and in a deep sleep, was slow to wake. Ladd asked defendant several questions to evaluate his comprehension. Ladd explained why he was there and that defendant was under arrest for DUII and reckless driving. He gave defendant Miranda warnings and asked defendant questions from the standard DUII Interview Report form. Defendant responded to the questions slowly but directly. Ladd testified that defendant "understood he'd bee[n] in a wreck, knew where he was, he was in Portland at the hospital * * *. So he was fully aware of his situation, surroundings and why he was at the hospital." Then Ladd read defendant his Driver and Motor Vehicle Services Division "implied consent rights and consequences" and asked defendant if he would like to take a blood test.³

Defendant agreed to take the test, and Ladd summoned a nurse who administered the test, extracting defendant's blood at 3:18 a.m.⁴ Defendant was charged with reckless driving and DUII. He moved to suppress the evidence obtained by the officer at the hospital, arguing that it was obtained in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The trial court denied the motion, concluding:

"The state established its burden of proving, by a preponderance of the evidence, that the defendant's consent to have his blood drawn and analyzed was given voluntarily based on the totality of the circumstances. The state did not meet its burden, however, with respect to the second proffered exception to the warrant requirement, i.e. the existence of probable cause and exigent circumstances. More specifically, the state failed to prove that the evidence it sought would have been sacrificed by the time it would take the officers to obtain a search warrant."

Based on that ruling, defendant entered a conditional plea of guilty, reserving the right to appeal the trial court's denial of his motion to suppress. This appeal followed.

On appeal, defendant advances three arguments in support of his assignment of error. First, he argues that his warrantless arrest in the hospital room was unlawful and that all of the evidence obtained in the hospital room should be suppressed, including evidence of the results of the blood test, his physical appearance, and his admissions. Next, defendant contends that the state did not prove that he voluntarily consented to the blood test so as to excuse the need for a search warrant. Third, and finally, he asserts that the state failed to prove that a warrant was not necessary due to exigent circumstances, specifically that evidence of his intoxication would have been lost by the time a warrant was obtained. We address each argument in turn.

First, defendant submits that his arrest was unlawful because an arrest warrant was needed before entering the emergency treatment room. Defendant explains that he had a protected privacy interest in the hospital room setting analogous to that enjoyed in one's home. That argument is controlled by our decision in State v. Cromb, 220 Or.App. 315, 185 P.3d 1120, rev. den., 345 Or. 381, 195 P.3d 911 (2008), which was decided after briefing and oral argument in the present case. In Cromb, we rejected the contention that the defendant had a constitutionally protected privacy interest, under either the state or federal constitution, in the area of the emergency room where he was being treated and that the officer's entry into that area and his observations of the defendant's condition constituted a warrantless search that violated that interest. Id. at 319, 327, 185 P.3d 1120. The defendant in Cromb relied on state statutory policies on the unauthorized disclosure of medical information to buttress the claim of a protected privacy interest. Id. at 320, 185 P.3d 1120. We noted that "with a few possible exceptions, privacy interests can be recognized only by their association with a private place where the claimant has the right to exclude others." Id. at 325, 185 P.3d 1120 (emphasis in original). We concluded that "[t]he hospital emergency room in this case, even a curtained-off portion of it, is not a private place." Id. at 325-26, 185 P.3d 1120.

That same result obtains here. Officer Ladd was admitted to defendant's treatment area by hospital staff. Defendant had no right to restrict access to his treatment area by controlling whether police officers might be present there. The area was associated with the hospital emergency room and was not provided to defendant for his sole use. We conclude that Cromb is controlling and reject defendant's argument without further discussion. Defendant's arrest was lawful, and the trial court did not err in failing to suppress evidence of Ladd's observations in the hospital treatment room during the arrest.

The next question is whether particular evidence—defendant's blood—was seized in accordance with defendant's constitutional rights. Article I, section 9, provides 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 * * *." "The extraction of a blood sample by the police is both a search of the person and a seizure of an `effect'—the person's blood." State v. Milligan, 304 Or. 659, 664, 748 P.2d 130 (1988). Warrantless searches and seizures are per se unreasonable unless the state proves an exception to the warrant requirement. State v. Bridewell, 306 Or. 231, 235, 759 P.2d 1054 (1988). The state contends that the search and seizure were reasonable because defendant gave consent and alternatively because it fell within the exigent circumstances exception to the warrant requirement.

Defendant argues that his consent was coerced and cannot be regarded as a free exercise of his will. The consent was coerced, according to defendant, because it was obtained after he was warned that he would incur substantial penalties if he did not consent. The trial court recognized that the implied consent proclaimed by ORS 813.100 "cannot be regarded as a free exercise of will." The trial court concluded that defendant's consent was voluntary, however, after reviewing the factors that contribute to a determination of voluntariness.

In reviewing the voluntariness of a person's consent to a search, "[w]e are not bound by the trial court's ultimate holding as to voluntariness, * * * [but] assess anew whether the facts suffice to meet constitutional standards." State v. Stevens, 311 Or. 119, 135, 806 P.2d 92 (1991). The proper test for voluntariness is whether, under the totality of the circumstances, the consent was given by an act of free will or was the result of coercion, express or implied. State v. Dimeo, 304 Or. 469, 474, 747 P.2d 353 (1987); State v. Wolfe, 295 Or. 567, 572, 669 P.2d 320 (1983). The state bears the burden of proving voluntariness by a preponderance of the evidence. State v. Paulson, 313 Or. 346, 351-52, 833 P.2d 1278 (1992).

The relevant factors to be considered in determining the voluntariness of consent include (1) whether physical force was used or threatened; (2) whether weapons were displayed; (3) whether the consent was obtained in public; (4) whether the person who gives consent was the subject of an investigation; (5) the number of officers present; (6) whether the atmosphere surrounding the consent was antagonistic or oppressive; and (7) whether drug or alcohol use has impaired the defendant's ability to make a knowing, voluntary, and intelligent choice. State v. Larson, 141 Or.App. 186, 198, 917 P.2d 519, rev. den., 324 Or. 229, 925 P.2d 908 (1996).

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