State v. Stoudamire

• Citation: 108 P.3d 615,198 Or. App. 399
• Parties: STATE of Oregon, Appellant, v. Damon Lamon STOUDAMIRE, Respondent.
• Decision Date: 16 March 2005
• Court: Court of Appeals of Oregon

108 P.3d 615

198 Or. App. 399

STATE of Oregon, Appellant, v. Damon Lamon STOUDAMIRE, Respondent.

CR02-0915; A119567.

Court of Appeals of Oregon, In Banc.

Argued and Submitted April 5, 2004.

Resubmitted November 17, 2004.

Decided March 16, 2005.

Douglas F. Zier, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Stephen A. Houze, Portland, argued the cause and filed the brief for respondent.

Before EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, SCHUMAN, and ORTEGA, Judges, and DEITS and LEESON, Judges pro tempore.

Resubmitted En Banc November 17, 2004.

PER CURIAM.

Affirmed by equally divided court.

ARMSTRONG and Landau, JJ., concur.

DEITS, J. Pro Tempore, and Edmonds and Haselton, JJ., dissent.

ARMSTRONG, J., concurring.

The state appeals a pretrial order suppressing evidence in this criminal proceeding. ORS 138.060. Defendant was charged with possession of a controlled substance, ORS 475.992(4)(a), and moved to suppress evidence found in his home by Lake Oswego police officers who had responded to a burglar alarm. The trial court granted the motion on the ground that the officers' entry into defendant's home violated defendant's rights under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. For the reasons stated below, I would conclude that the proper disposition of the appeal in this case is to affirm the trial court.

This court reviews suppression decisions for legal error and is bound by the trial court's findings of historical fact if they are supported by evidence in the record. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). To the extent that the trial court did not make express findings, we resolve disputed facts in a way that is consistent with its ultimate conclusion. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968).

The following facts are taken from the trial court's findings, as well as from the record made at the suppression hearing. On February 23, 2002, at approximately 6:30 p.m., the burglar alarm at defendant's house went off and two of defendant's neighbors reported it to the police. One of the neighbors told the dispatcher that defendant was the only one who lived at the house and that defendant had left several hours earlier to play in a basketball game in Portland. Officer Brady responded about 15 minutes later. It was dark when he arrived. Brady spoke with one of the neighbors who had called about the alarm and that neighbor reported that he had seen a car that he did not recognize back out of defendant's driveway 45 minutes to an hour earlier. The neighbor also reported that he had kept an eye on defendant's house after calling the police. Brady observed that the door to defendant's house was open about a foot. Brady walked around the exterior of the residence looking for signs of forced entry and attempting to determine if anyone was inside. He saw no sign of forced entry or of anyone inside. Officer Forman arrived approximately 15 minutes after Brady.

The officers then entered and searched defendant's house pursuant to a Lake Oswego Police Department policy on responding to burglar alarms. That policy required them to check anywhere that a person could reasonably hide. Pursuant to that policy, the officers looked in closets and cabinets, behind couches, and under desks. While searching the upstairs area of the house, Brady saw a small door that led to an attic storage area. Brady opened the door and saw a large plastic bag that appeared to contain several smaller bags of marijuana. He also noticed an odor of marijuana as he opened the door. The officers confiscated the large bag of marijuana and then completed their search of defendant's house. In a bedroom, they discovered two partially smoked marijuana cigarettes, which they did not confiscate. They found no evidence of burglary. The officers left a false-alarm notice for defendant, indicating that they had been in the house and informing him why they had been there.

Brady returned to defendant's house approximately a week later and told defendant about his discovery of the bag of marijuana. Defendant stated that the marijuana belonged to a friend. He further stated that he had removed a small amount of marijuana from one of the bags for personal use.

Defendant was charged with possession of a controlled substance. ORS 475.992(4)(a). He moved to suppress the evidence found in his home on the ground that it was obtained in the course of an illegal search. Defendant argued that the search was warrantless and did not fall within any exception to the warrant requirements under either Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the United States Constitution. In response, the state argued that three exceptions to the warrant requirement justified the search. First, the state argued that defendant consented to the search by implication because he had a burglar alarm system and had contracted with an alarm company to attempt to notify the police when the alarm was activated. Second, the state posited that the search was a valid administrative search. Finally, the state asserted that the officers had probable cause to believe that a crime was being committed and that exigent circumstances obviated the need to obtain a warrant.

At the suppression hearing, the parties agreed that, between 1996 and 2002, there had been 32 false alarms at defendant's house. Further, defendant had been cited approximately seven times under a Lake Oswego false alarm ordinance. The trial court found, and the state does not dispute on appeal, that over 99 percent of all residential alarms that came to the attention of the Lake Oswego police during the year in which defendant's house was searched were false alarms. Officer Brady's testimony indicated that false alarms often occurred when a homeowner set off an alarm while leaving the house. The trial court concluded that, given the high rate of false alarms in Lake Oswego, "a sounding alarm cannot add to the showing of probable cause."

The state also offered evidence showing that Lake Oswego has an ordinance that imposes civil penalties after a certain number of false alarms and argued that the challenged search constituted a valid administrative investigation into a possible false alarm. Finally, the state offered evidence about the manner in which such alarms were investigated, specifically describing the policy of the Lake Oswego Police Department concerning the scope and intensity of searches when an alarm has been set off and the premises are not secure. The evidence also indicated that this policy was consistently followed by the department.

The trial court ultimately rejected each of the state's arguments as to why the search was valid despite the lack of a warrant. First, the trial court concluded that the evidence did not establish in a clear and unambiguous manner that defendant impliedly consented to a search of his house of the scope and intensity of the search that the police conducted. Second, the trial court rejected the state's administrative search argument on the ground that an extensive search of a private residence, conducted in order to investigate possible violations of a civil ordinance, went far beyond the types of administrative searches that courts have traditionally recognized as valid. Finally, the trial court determined that, although Officer Brady subjectively believed that he had probable cause to enter defendant's home, that belief was not objectively reasonable under the circumstances. The trial court identified three circumstances relevant to objective probable cause: the sounding of the alarm, the partially open front door, and the unidentified car leaving defendant's property approximately an hour before the police arrived. The court concluded that the sounding alarm did not contribute to objective probable cause because the false alarm rate in Lake Oswego is so high. The court also noted that no testimony established the existence of any exigent circumstances that required the officers to enter immediately rather than seek a warrant and concluded that the possibility that an intruder was present in the house did not, by itself, create an exigency. Accordingly, the trial court granted defendant's motion to suppress the evidence obtained from the search of his house.

The state appeals the trial court's suppression of the evidence. ORS 138.060(1)(c). It reiterates the arguments that it made in the trial court: that probable cause and exigent circumstances justified the search; that defendant consented to the search; and that the search was a valid administrative search.

Before turning to the issues raised by the state on appeal, we must address the significance of the state's failure to challenge the trial court's conclusion that the search of defendant's home violated the Fourth Amendment. In the trial court, defendant made extensive and distinct arguments in support of suppression under both Article I, section 9, and the Fourth Amendment. The trial court explicitly concluded that the search violated both Article I, section 9, and the Fourth Amendment. On appeal, the state's brief cites neither the Fourth Amendment nor any of the relevant case law interpreting it. In its discussion of probable cause and exigent circumstances, the state's brief specifically addresses only Article I, section 9. Nothing in the state's brief even suggests that the state was aware of the court's holding under the Fourth Amendment. It is axiomatic that, when a trial court bases a decision on multiple grounds, an appellant may prevail on appeal only after demonstrating that all of the bases for the court's decision were erroneous. See Roop v. Parker Northwest Paving Co., 194 Or.App. 219, 236, 94 P.3d 885 (2004)

("where [appellants] fail to challenge the...