State v. Roles
Decision Date | 21 August 1985 |
Citation | 705 P.2d 227,75 Or.App. 63 |
Parties | STATE of Oregon, Respondent, v. Glen Dell ROLES, Jr., Appellant. 83-06-1311; CA A31545. |
Court | Oregon Court of Appeals |
Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for appellant. With him on brief was Gary D. Babcock, Public Defender, Salem.
Jeffrey Bennett, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.
Defendant appeals his conviction for manufacture of a controlled substance, ORS 475.992, assigning as error the denial of his motion to suppress marijuana plants as evidence. 1 We agree and reverse and remand.
Acting on an anonymous tip that marijuana plants were growing on the roof of a residence, the Lebanon police drove by the house and saw plants about six inches high growing in containers on the roof. The officers could not tell whether the plants were marijuana. A few days later the officers contacted the owners of the residence, Mrs. Moody and her husband, a paraplegic.
Defendant had lived in the upper rooms of the Moody house for over a year under an agreement whereby he did jobs around the house in lieu of paying rent. A door leads from one of the upstairs rooms onto a flat roof over two bedrooms and the garage on the lower level of the house. Mrs. Moody testified that she had not been upstairs since defendant had started living there. Mr. Moody testified that he had not been upstairs for 10 or 12 years and that defendant had access to "everything that's upstairs."
The Moodys did not give the officers permission to search the roof. However, the officers went around the residence and, using a woodpile along one side of the house, climbed to the roof. They identified the plants as marijuana and seized them.
The state argues that, under Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968) this court is bound by the trial court's finding that defendant had no possessory interest in the rooftop. That so-called finding is not one of historical fact; it is, rather, a legal conclusion from the facts, and we are not bound by that conclusion if we find that the historical facts on which it is based are insufficient to support it. State v. Warner, 284 Or. 147, 585 P.2d 681 (1978).
The officer's testimony that he thought the plants were "in plain view" does not legitimize the warrantless seizure. The facts before us are analogous to those in State v. Walle, 52 Or.App. 963, 630 P.2d 377 (1981), where officers saw marijuana plants growing on the defendant's property when they were executing a search warrant on property adjacent to the defendant's. The officers seized the plants. In holding that the evidence should have been suppressed, we discussed the "plain view" doctrine:
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