State v. Somfleth

• Decision Date: 21 June 2000
• Citation: 168 Or. App. 414,8 P.3d 221
• Parties: STATE of Oregon, Respondent, v. Russell Allen SOMFLETH, Appellant.
• Court: Oregon Court of Appeals

8 P.3d 221

168 Or. App. 414

STATE of Oregon, Respondent, v. Russell Allen SOMFLETH, Appellant.

(9606-34373; 9702-31253; CA A100841 (Control); A100842).

Court of Appeals of Oregon.

Argued and Submitted April 25, 2000.

Decided June 21, 2000.

Mary M. Reese, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and LANDAU and WOLLHEIM, Judges.

HASELTON, P.J.

Defendant appeals from a judgment of conviction for manufacture of a controlled substance and possession of a controlled substance. ORS 475.992(1), (4).¹ He assigns error to the denial of his motion to suppress evidence. Defendant contends that police officers unlawfully invaded the curtilage of his home before making observations that the officers, in turn, used to obtain defendant's wife's consent to a search that yielded evidence of the crimes. We conclude that the officers unlawfully invaded the curtilage and that they exploited that illegality in obtaining defendant's wife's consent to search. Accordingly, we reverse and remand for a new trial.

Except as specifically noted, the material facts pertaining to the motion to suppress are uncontroverted. Defendant lived in a house in north Portland. The front of the house faced North Michigan Avenue. Behind the house, and detached from it, was a garage that faced the opposite direction, fronting on a public alley that ran parallel to North Michigan Avenue.² A chain-link fence, with a gate, separated the backyard from the alley.³ The configuration of defendant's property is generally illustrated by the following map:

The rear of defendant's property, including the alleyway, fence, gate, path, and garage, is shown in pictures, submitted as defense exhibits, which are reproduced in Appendix "A" to this opinion. In the late spring of 1997, an unknown informant told Portland Police Officer Peter McConnell that people were working on cars in defendant's garage "until all hours of the night" and that "they" were on methamphetamine. Several weeks later, at about 11:00 p.m. on the night of July 3, 1997, as McConnell and his partner drove down the alley behind defendant's house, they saw light coming out of the open side door of the garage. They stopped and got out of their car.

The officers walked through the gate in the chain-link fence⁴ and proceeded up the path adjacent to the side of the garage. As the officers passed the open side door of the garage, McConnell looked in and saw defendant in the corner of the garage "kneeling down and * * * lighting something beneath a glass flask that * * * had a piece of brown surgical tubing coming out of it." There was smoke or steam coming from around the glass. From what he saw, McConnell believed that defendant was operating a methamphetamine lab.

McConnell knocked on the open door and, when defendant turned around, defendant looked "worried." McConnell asked if he could come in, and defendant refused. Defendant then came outside to speak to McConnell, closing the door behind him. In response to McConnell's questions, defendant said that he had been heating up varnish for antlers. When McConnell suggested that defendant might be operating a methamphetamine lab and asked if he could confirm that the substance in the flask was varnish, defendant refused.

Defendant then said that he needed to use the bathroom, went into the house, and did not return. McConnell, concerned that the garage might explode, called in other officers. Five to 10 minutes after defendant entered the house, McConnell went to the back door of the house and knocked. Defendant's wife answered and told the officers that defendant was not at home. She agreed that the officers could search the house for defendant, but the ensuing search merely confirmed that defendant was gone.

Either during or after the search of the house, McConnell asked defendant's wife for consent to search the garage. She refused, saying that she did not have access to the garage and was afraid that defendant would learn that she had consented. McConnell then told defendant's wife that he believed that there was a methamphetamine laboratory in the garage; that such operations were highly dangerous; and that, if she did not consent, he could obtain a search warrant. Defendant's wife then consented to a search of the garage, which yielded evidence of methamphetamine production.

After being charged with manufacture and possession of a controlled substance, defendant filed a motion to suppress. Defendant argued, inter alia, that his wife's consent was not validly given because that consent was "a direct product" of an illegal trespass by the police:

"In the present case, the alleged consent search was preceded by illegal police conduct. The actions of the Portland police officers in coming to the defendant's garage in the middle of the night, on a stale complaint of noise, leaving the public alleyway, opening the gate to the defendant's chain link fence, and walking up to peer into the side door of the defendant's garage, was a trespass, a violation of the curtilage, a violation of Article I, Section 9, of the Oregon Constitution."

As support for that argument, defendant invoked, particularly, State v. Ohling, 70 Or.App. 249, 688 P.2d 1384, rev. den. 298 Or. 334, 691 P.2d 483 (1984), for the proposition that there was no implied consent for the officers to invade the curtilage by entering the backyard. Defendant further argued that his wife's consent was the product of exploitation of that prior illegality.

The state responded that that analysis under Article I, section 9, of the Oregon Constitution was immaterial because the enactment by initiative of 1996 Ballot Measure 40 obviated that analysis—that is, that under section (2) of Ballot Measure 40, the constitutional limitations on searches and seizures under Article I, section 9, were deemed to be no greater than, and coextensive with, federal constitutional limitations. The state further argued that, given that defendant's backyard was adjacent to a public alleyway and that the gate in the back fence was open, defendant had implicitly invited entry into his backyard. Thus, the state asserted, the officers had not unlawfully invaded the curtilage at the time McConnell observed defendant through the open garage side door.

The trial court agreed with the state that Ballot Measure 40 precluded any independent or distinct Oregon constitutional analysis and, consequently, refused to engage in such analysis under the Oregon precedents, including Ohling.⁵ The court then denied the motion to suppress:

"[T]he officers, based on the complaint from three weeks earlier about the noise in the garage, and leaving aside the offhand comment that the person was also into meth, had a reason, once they saw someone in the garage or a light which indicated that someone might be there, a reason to stop and do their community police work.

"It seems to me it's the sort of thing we are wanting officers to do. And so it was reasonable and proper for them to do that, to cross the curtilage, if that's the proper term for this kind of border between a public alleyway and the garage detached from a house, that that was the purpose of their entry and the knock on the garage door.

"That being so, they had a right to be where they were and to see what they saw.

"And that being so, either they had probable cause based on what the officers have said here today to believe that there was a working methamphetamine lab at place in the garage which would excuse any need for consent or else, as they did here, more carefully and more methodically, they went to the door and asked for consent and eventually achieved it."

Defendant was subsequently convicted of manufacture and possession of methamphetamine.

On appeal, defendant reiterates his arguments that the officers' entry onto the property was unlawful and that his wife's consent to search was the product of the exploitation of that illegality. Before addressing the substance of those arguments, we briefly dispose of two threshold matters.

First, the state argues that defendant did not adequately preserve his argument that evidence of the officers' initial observations through the open garage door should be suppressed. We disagree. Defendant's memorandum in support of suppression and related oral argument clearly challenged the legality of the officers' initial entry onto the property. If defendant is correct, the officers were, necessarily, at an unlawful vantage point when they made their initial observations—and those observations must, consequently, be suppressed.

The issue was clear. The parties had a full and fair opportunity to develop a complete factual record, and the trial court was expressly apprised of the parties' positions. See Lutz v. State of Oregon, 130 Or.App. 278, 287-88, 881 P.2d 171 (1994) (Haselton, J., concurring) ("No one was `sandbagged.' No one is operating under any illusions. * * * To withhold review in such circumstances is to relegate appellate advocacy to mere gamesmanship, in which the inevitable `sins' of even the most conscientious counsel are visited on their clients."). Defendant adequately preserved his present arguments.

Second, defendant suggests that, given the Supreme Court's intervening invalidation of Ballot Measure 40, including section (2), in Armatta v. Kitzhaber, 327 Or. 250, 959 P.2d 49 (1998), we should remand for the trial court to address, in the first instance, the constitutionality of the search under Article I, section 9, of the Oregon Constitution. We decline to remand here because the factual record has been fully developed, the trial court has resolved all factual disputes, and, consequently, the only issues on appeal are...