State v. Mazzola
| Decision Date | 27 October 2010 |
| Docket Number | 05CR0011; A139257. |
| Citation | 238 Or.App. 201,242 P.3d 674 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Frank A. MAZZOLA, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Joshua B. Crowther, Senior Deputy Public Defender, argued the cause for appellant.With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Harry B. Wilson, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and David B. Thompson, Senior Assistant Attorney General.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and EDMONDS, Senior Judge.
Defendant appeals his convictions for possession of a controlled substance, former ORS 475.992(4)(a) (2003), renumbered as ORS 475.840(3)(a) (2005), and manufacture of a controlled substance, former ORS 475.992(1)(a) (2003), renumbered as ORS 475.840(1)(a) (2005), following a joint jury trial with his wife, Allisa Mazzola.1 He assigns error to the trial court's denial of his motion to suppress evidence of an extensive marijuana growing operation on his property. In particular, defendant asserts that the trial court erred in determining that the police officers' warrantless entry into a mobile home, which, in turn, revealed the evidence of marijuana cultivation, was justified under the "emergency aid" exception to the warrant requirement. We agree with defendant and, further, reject the state's proffered alternative basis for affirmance. Accordingly, we reverse and remand.
We review the trial court's denial of defendant's motion to suppress for errors of law, State v. Chambers, 226 Or.App. 363, 365, 203 P.3d 337 (2009), and limit our review to the facts available to the trial court when it decided that motion. State v. Saunders, 221 Or.App. 116, 118, 188 P.3d 449, rev. den., 345 Or. 416, 197 P.3d 1105 (2008). We accept the trial court's findings that are supported by sufficient evidence in the record and presume, with regard to pertinent and disputed facts for which there are no express findings, that the trial court decided those facts in a manner consistent with its ultimate conclusions. State v. Baker, 237 Or.App. 342, 344, 240 P.3d 735 (2010).
In May 2004, two officers from the Josephine County Sheriff's Office, Deputy Hubbard and Corporal Justima, came to defendant's property to investigate a 9-1-1 report about a domestic disturbance. According to the 9-1-1 caller, there was "yelling" and "door slamming" noises coming from defendant's property and "a history of guns as well as a history of possible drug use," although there was no indication that any shots had been fired. The caller also indicated that there were at least two children present.
When the officers arrived, they encountered defendant's wife, Allisa, outside the couple's log cabin with two of the couple's three children. Defendant's wife was "calm" and "cooperative." She explained to the officers that she and defendant had had a verbal disagreement about "home matters" but that the disagreement had ended. She also told the officers that the argument had been verbal and, indeed, neither she nor the children showed any signs of injury. The officers inquired about the whereabouts of defendant and the third child, who was not present. Defendant's wife explained that the child was at a birthday party and indicated that defendant was inside the mobile home, which was located about 15 feet away from the cabin.
At that point, the officers went to the mobile home to make "certain that nobody was hurt" and that defendant had not been "shot * * * and left to die" there. Loud music was blaring from the mobile home. When the officers approached the mobile home, they noticed a tray of small, wilted marijuana plants that appeared to have been discarded on the front porch and the odor of marijuana emanating about two feet from the front door, which was ajar. The officers loudly announced their presence, and Hubbard used his flashlight to rap on the doorframe and the metal siding of the trailer.
When there was no response, the officers-without a warrant or consent-entered. Once the officers entered the mobilehome, the smell of marijuana became "overwhelming," and the officers could see marijuana plants under grow lights and evidence of additional marijuana cultivation in another room.
Defendant, who was inside the mobile home, met the officers in the living room and turned off the music. Defendant confirmed that he and his wife had had a verbal disagreement and that it was now resolved. Hubbard then expressed his concern "about the number of marijuana plants [he] was observing." Defendant explained that he was an Oregon medical marijuana cardholder, that his wife was a caregiver, and that he was also growing marijuana for another woman. Hubbard asked to inspect the medical marijuana cards, and defendant led Hubbard into another room, where one of the cards was posted. There, Hubbard saw"[s]everal more plants and a complete grow operation." Hubbard again expressed his concern that defendant "was over the legal limit for both cardholders" and asked for permission to "inspect the rest of the residence and his operation." Defendant gave the officers permission to inspect the rest of the mobile home, yielding further evidence of illegal marijuana cultivation. After the officers had completed their inspection, Hubbard told defendant that he was "way over the limit," handcuffed him, and called for narcotics detectives to come to the scene.
One of the detectives who responded to that call, Detective Vorberg, advised defendant, who remained handcuffed, of his Miranda rights and asked him if he would consent to a search of the mobile home. Vorberg told defendant that he did not have to give his consent and answered various questions defendant had about whether he was going to jail and whether a warrant would be obtained. Defendant gave his verbal consent and also signed a written consent form. The officers then proceeded to seize and catalogue the marijuana that they had discovered following their initial entry and inspection. Defendant and his wife were subsequently charged with various crimes relating to the distribution, manufacture, and possession of marijuana.
Before their consolidated trial, defendant and his wife moved to suppress the marijuana evidence, arguing that the officers' initial warrantless entry into the mobile home was not justified under the "community caretaking" statute, ORS 133.033,2 or the "emergency aid" exception to the warrant requirement,3 and that defendant's consent to the search waseither involuntary or was obtained by exploitation of the officers' unlawful entry. The state's primary argument was that the officers' initial entry was justified under ORS 133.033 and the emergency aid exception. In addition, the state countered the defendants' arguments pertaining to nonattenuation and argued that the evidence was subject to the inevitable discovery exception to the exclusionary rule.
The trial court concluded that the officers' initial entry into the mobile home was lawful because there was a "legitimate emergency" and, given that conclusion, further reasoned that defendant's subsequent consent was lawfully obtained:
In sum, the trial court concluded that the officers' entry into the mobile home was justified under the emergency aid exception and did not reach the parties' inevitable discovery and exploitation arguments.4
On appeal, defendant challenges that determination. The state, in response, acknowledges that the officers' initial entry into the mobile home cannot be justified under the emergency aid exception and that the trial court erred in its conclusion in that regard. Nevertheless, the state contends that we should affirm the trial court's denial of suppression on the alternative ground that, because of the Miranda warnings and other circumstances, defendant's subsequent consent to the search was so attenuated from theunlawful police conduct ( viz., the officers' warrantless entry and presence within the mobile home) as to justify denial of suppression.5
We begin with the lawfulness of the officers' warrantless entry into the mobile home. See State v. Cox, 212 Or.App. 637, 640, 159 P.3d 352 (2007) (). For the following reasons, we accept, as well founded, the state's concession that the officers' conduct in that regard was unlawful.
The elements of the emergency aid doctrine, as set out in State v. Follett, 115 Or.App. 672, 680, 840 P.2d 1298 (1992), rev. den., 317 Or. 163, 856 P.2d 318 (1993), are as follows:
(Footnote omitted.) With respect to the first two elements, an officer's subjective belief that a "true emergency" exists must be substantiated by "objective indicia of a particular individual being in distress or of the presence of a potentially dangerous individual," suggesting that "immediate action wasrequired to protect life." State v. Burdick, 209 Or.App. 575, 581, 149 P.3d 190 (2006).
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