State v. Pierce

• Decision Date: 04 March 2009
• Docket Number: 053579FE.,A131475.
• Citation: 203 P.3d 343,226 Or. App. 336
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Andrew Lee PIERCE, Defendant-Appellant.
• Court: Oregon Court of Appeals

203 P.3d 343

226 Or. App. 336

STATE of Oregon, Plaintiff-Respondent, v. Andrew Lee PIERCE, Defendant-Appellant.

053579FE.

A131475.

Court of Appeals of Oregon.

Argued and Submitted May 22, 2008.

Decided March 4, 2009.

David C. Degner, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

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

HASELTON, J.

Defendant appeals from his conviction for possession of a controlled substance (marijuana), former ORS 475.992 (2003), renumbered as ORS 475.840 (2005),¹ assigning error to the denial of his motion to suppress evidence. Defendant contends that a police officer's observations of defendant's possession of marijuana in a residential backyard at 1:00 a.m., and defendant's consequent admissions and consent to search, were the products of a warrantless search that did not fall within any recognized exception to the warrant requirement. We agree and, consequently, reverse and remand.

The material facts are, for purposes of our review, uncontroverted. At about 1:00 a.m. on May 2, 2005, Medford Police Officer Vollrath arrived at the home of defendant's friend, Hammes, in response to a complaint about a noise disturbance. Vollrath parked his police car on the street in front of Hammes's house and, when he got out, he could hear people yelling and screaming behind the house. Vollrath believed that the crime of disorderly conduct was being committed.

A walkway ran from the sidewalk in front of Hammes's house to the front door of the house. However, Vollrath did not go to the front door. Instead, bypassing the front door, Vollrath walked up a 30-foot long driveway, along the side of Hammes's house, to a point just beyond the rear side corner of the house, where a chain link fence and gate ran between the corner of the house and the garage located at the end of the driveway. The configuration of Hammes's property is generally illustrated by the following diagram:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Two representative photographs, among several submitted as defense exhibits, are reproduced in the appendix to this opinion.

From that vantage point, Vollrath was able to look through the fence into the backyard. Although it was dark and rainy, Vollrath was able to see into the yard because he had a flashlight and because there was a light near the top of the garage. Vollrath saw defendant and Hammes sitting on a stoop in the backyard, and he identified himself as a police officer. Vollrath then saw defendant pull marijuana plants from two cups and attempt to destroy them by submerging them in a mud puddle in Hammes's backyard.

Vollrath and Medford Police Officer Kirkpatrick, who had also arrived, then arrested defendant and advised him of his Miranda rights. Kirkpatrick subsequently obtained defendant's consent to search his home, where police found another marijuana plant and other evidence of marijuana cultivation. Defendant admitted that he had grown all three plants.

Defendant moved to suppress all of the evidence, arguing that it arose from an unlawful search of Hammes's backyard.² In particular, defendant contended that Vollrath's entry into the side and rear areas of the curtilage of Hammes's house effected a search for purposes of Article I, section 9, of the Oregon Constitution, and that that warrantless search was unlawful because no exception to the warrant requirement applied.

The state offered two alternative responses. First, the state asserted that Vollrath's entry into the side and rear areas of the residential curtilage was implicitly invited and, thus, was not a "search" for purposes of Article I, section 9, so that his consequent observations of defendant were "plain view" observations from a lawful vantage point. Second, the state asserted that, even if Vollrath's entry to that point did effect a warrantless search, that search was supported by probable cause with respect to disorderly conduct.

The trial court denied the motion to suppress, stating:

"I do believe [the officers] had probable cause to believe the crime of disorderly conduct was being committed. I think it was pretty loud, when you take into consideration the time and where they — that the officers were able to hear it, as he exited his vehicle and characterized it as yelling and screaming. And I do feel that the officer, under those circumstances. Under normal circumstances I would agree that — probably not justified in going to the rear of the house and looking in the backyard, from the rear of the driveway and looking into the backyard, but under these circumstances, I do find that it was reasonable and justified for the officers to do so. And I am not exact — it is interesting the characterization of exigent circumstances, but I don't know how to deal with that, but I am just making a finding that what they did was reasonable, and they were justified in doing it, and justified in being where they were."³

Following the denial of suppression, defendant entered a conditional plea, pursuant to ORS 135.335(3), to possession of a controlled substance (marijuana).

On appeal, defendant essentially reiterates his position before the trial court. However, the state no longer contends that Vollrath's invasion of the side and rear areas of the residential curtilage and concomitant observations did not constitute a warrantless search for purposes of Article I, section 9. Indeed, in its brief as respondent, the state concedes that,

"in light of the layout of the property at issue [as depicted in the photographic exhibits], and pursuant to State v. Somfleth, 168 Or.App. 414, 8 P.3d 221 (2000), Officer Vollrath conducted a search when he walked up the driveway of the house."

Rather, the state argues solely that Vollrath's warrantless invasion and observations were justified by probable cause and exigent circumstances. Given the state's position on appeal and the ambiguity of the trial court's rationale for denying suppression, see 226 Or.App. at 340 n. 3, 203 P.3d at 347 n. 3, we begin by addressing the state's "exigent circumstances" contention.

The state contends that Vollrath had probable cause to believe that the crime of disorderly conduct was being committed in the backyard and that there was a constitutionally cognizable exigency either because Vollrath needed to terminate a continuing crime of disorderly conduct or because Vollrath believed that the noise from the backyard could indicate that people were "having a disagreement" that presented the danger of someone being injured. In the latter regard, the state invokes the "community caretaking" statute, ORS 133.033, which permits an officer to enter "upon the premises of another if it reasonably appears to be necessary" in order to "[p]revent serious harm to any person" or to "[r]ender aid to injured or ill persons[.]" ORS 133.033(2)(a)(A), (B). Neither of those justifications is availing.⁴

In State v. Stevens, 311 Or. 119, 126, 806 P.2d 92 (1991), the court generally described the scope of the "exigent circumstance" exception: "An exigent circumstance is a situation that requires the police to act swiftly to prevent danger to life or serious damage to property, or to forestall a suspect's escape or the destruction of evidence." Here, as defendant asserts, the crime of disorderly conduct — based merely on people loudly "having an argument" in the middle of the night — did not require "the police to act swiftly to prevent danger to life or serious damage to property, or to forestall a suspect's escape or the destruction of evidence." Id. To be sure, defendant's conduct may have irritated Hammes's neighbors and disturbed their sleep, but it did not rise to the level of a constitutionally cognizable "exigency."

The state's "emergency aid" — based argument is similarly unavailing.⁵ In State v. Follett, 115 Or.App. 672, 680, 840 P.2d 1298 (1992), rev. den., 317 Or. 163, 856 P.2d 318 (1993), we described the elements of the "Emergency Aid Doctrine" as follows:

"(1) The police must have reasonable grounds to believe that there is an emergency and an immediate need for their assistance for the protection of life.

"(2) The emergency must be a true emergency — the officer's good faith belief alone is insufficient.

"(3) The search must not be primarily motivated by an intent to arrest or to seize evidence.

"(4) The officer must reasonably suspect that the area or place to be searched is associated with the emergency and that, by making a warrantless entry, the officer will discover something that will alleviate the emergency."

(Footnote omitted.)

Again, the record here is devoid of any evidence that either of the officers responding to the noise complaint had a good faith belief — let alone reasonable grounds to believe — that the noise from the residential backyard indicated "an immediate need for their assistance for the protection of life." Id. Indeed, the testimony of both Vollrath and the other officer confirms that they were investigating the crime of disorderly conduct — and not that they were attempting to render emergency aid. See generally State v. Salisbury, 223 Or.App. 516, 524-25, 196 P.3d 1017 (2008) (officers heard yelling and screaming within the curtilage of an apartment consistent with a "domestic quarrel," but that did not indicate that violence was occurring and did not justify entry under "emergency aid doctrine").

In sum, regardless of the existence of probable cause, Vollrath's warrantless invasion of the side and rear areas of the residential curtilage was not justified by any exigency. Further — and the state...