State v. Roper

• Decision Date: 19 December 2012
• Docket Number: A147163.,09CR0210
• Citation: 254 Or.App. 197,294 P.3d 517
• Parties: STATE of Oregon, Plaintiff–Appellant, v. William Thomas ROPER, Defendant–Respondent.
• Court: Oregon Court of Appeals

254 Or.App. 197

294 P.3d 517

STATE of Oregon, Plaintiff–Appellant,

v.William Thomas ROPER, Defendant–Respondent.

09CR0210; A147163.

Court of Appeals of Oregon.

Argued and Submitted Jan. 17, 2012.

Decided Dec. 19, 2012.

Doug M. Petrina, Senior Assistant Attorney General, argued the cause for appellant. With him on the briefs were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Ryan Scott argued the cause and filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

WOLLHEIM, J.

After defendant was charged with a number of counts related to the manufacture, delivery, and possession of marijuana and methamphetamine, and felon in possession of a firearm, the trial court granted his motion to suppress evidence based on the officers' warrantless search of defendant's premises. The state appeals, arguing that the trial court erred in granting defendant's motion to suppress because defendant did not manifest a clear intent to exclude visitors from using his driveway. In light of all the circumstances, we conclude that there is sufficient evidence to support the trial court's findings and that the trial court did not err in granting defendant's motion to suppress. Accordingly, we affirm.

The trial court's findings of fact are binding if there is constitutionally sufficient evidence in the record to support those findings. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We review to determine whether the court correctly applied legal principles to those facts. Id.

We describe the facts consistently with the court's findings and the record. Defendant's property is in a rural part of Josephine County. He has a four to five foot boundary fence around his property, with a gate across the driveway. Approximately four feet to the left of defendant's driveway is a “No Trespassing” sign. To the right of the gate, farther away than the sign on the left, is another sign that also says, “No Trespassing.” On the gate, there is a sign that says,

“POSTED

“NO TRESPASSING

“KEEP OUT”

In March 2009, four officers, in marked and unmarked police cars, went to defendant's house to discuss information that he was growing marijuana on his property. The officers arrived in the early afternoon. The officers did not have a search warrant. The gate to defendant's driveway was open, so the sign on the gate was only visible from the back. The officers did not see the “No Trespassing” signs. One officer noticed a sign on the gate, but could not see what was on it because it was facing away.

The officers drove up the driveway. Two officers went to the front door and two officers went to the back door. The officers who went to the front door identified themselves as police. A male voice called out, “Who is it?” The officers identified themselves as police officers and the voice responded something to the effect of “[j]ust a minute.” Defendant left through the back door. The officers at the front door joined defendant and the other officers at the back door. From there, the officers heard fans and smelled growing marijuana. Defendant admitted that he did not have a valid medical marijuana card and said that he was growing two plants. Defendant consented to a search of his property. The officers found marijuana plants, processed marijuana, methamphetamine, methamphetamine paraphernalia, and 16 firearms.

Defendant was charged with unlawful manufacture of marijuana, ORS 475.856, unlawful delivery of marijuana, ORS 475.860, unlawful possession of marijuana, ORS 475.864, unlawful possession of methamphetamine, ORS 475.894, 16 counts of felon in possession of a firearm, ORS 166.270, four counts of theft in the first degree, ORS 164.055, and criminal forfeiture, ORS 131.582.

Defendant filed a motion to suppress, arguing that the officers trespassed when they entered his property and, consequently, all evidence obtained from the search was a product of that illegal search. After a hearing on defendant's motion to suppress, the court found that, in some of the exhibits, the “No Trespassing” signs appeared obscured, but “other exhibits demonstrated the signs were clearly posted.” The court found that the officers were credible in their testimony that they did not see the “No Trespassing” signs and were concerned with their safety. However, the court found that the officers failed to use due diligence when they did not see the signs.

In addition, the court found that having a “No Trespassing” sign within four feet of a front gate gives notice to the public that the owner does not want others to come up the driveway. The court added that “a normal, reasonable person in that situation would * * * have seen those two signs and at the very least would have stopped and looked at the other side of the gate to see what the * * * other sign said, * * * which turned out to be a no trespassing sign.” The court concluded that the officers trespassed when they drove up defendant's driveway and, therefore, granted defendant's motion to suppress. The state appeals.

The sole issue on appeal is whether the trial court erred in granting defendant's motion to suppress. The state asserts that the trial court erred in granting defendant's motion to suppress because the “No Trespassing” signs were insufficient to show that defendant intended to exclude the public from entering his property. Defendant contends that the signs were sufficient to show his intent to exclude and, accordingly, the court did not err in granting his motion to suppress. We agree with defendant.

Article I, section 9, of the Oregon Constitution provides, “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” A search is an intrusion by an officer into the protected privacy interest of an individual. State v. Rhodes, 315 Or. 191, 196, 843 P.2d 927 (1992). A warrantless search is per se unreasonable. State v. Unger, 252 Or.App. 478, 481, 287 P.3d 1196 (2012). “A person who wishes to preserve a constitutionally protected privacy interest in land outside the curtilage must manifest an intention to exclude the public by erecting barriers to entry, such as fences, or by posting signs.” State v. Dixson/Digby, 307 Or. 195, 211–12, 766 P.2d 1015 (1988). “[T]he law assumes that, absent evidence of an intent to exclude, an occupant impliedly consents to people walking to the front door and knocking on it, because of social and legal norms of behavior.” State v. Portrey, 134 Or.App. 460, 464, 896 P.2d 7 (1995). We consider all surrounding circumstances to determine the residents' intent. State v. McIntyre/Pereira, 123 Or.App. 436, 440, 860 P.2d 299 (1993), rev. den.,318 Or. 351, 870 P.2d 220 (1994).

The state relies on State v. Gabbard, 129 Or.App. 122, 877 P.2d 1217,rev. den.,320 Or. 131, 881 P.2d 815 (1994), and State v. Gorham, 121 Or.App. 347, 854 P.2d 971,modified on recons.,123 Or.App. 582, 859 P.2d 1201,rev. den.,318 Or. 171, 867 P.2d 1385 (1993), to argue that defendant did not demonstrate sufficient intent to exclude the public from his property. However, the facts in Gabbard and Gorham are not like the facts in this case. In Gabbard, the defendant had signs near the beginning of his driveway that said “Beware of Dog” and “Keep...