State v. Turley, 04-FE-0038-MA; A124413.

• Decision Date: 12 October 2005
• Docket Number: 04-FE-0038-MA; A124413.
• Citation: 202 Or. App. 40,120 P.3d 1229
• Parties: STATE of Oregon, Respondent, v. Linda Lorene TURLEY, true name Linda Lorene Silvers, Appellant.
• Court: Oregon Supreme Court

120 P.3d 1229

202 Or. App. 40

STATE of Oregon, Respondent, v. Linda Lorene TURLEY, true name Linda Lorene Silvers, Appellant.

04-FE-0038-MA; A124413.

Court of Appeals of Oregon.

Argued and Submitted June 8, 2005.

Decided October 12, 2005.

Andy Simrin, Salem, argued the cause for appellant. With him on the brief was Mikel R. Miller.

Ryan P. Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and LINDER^* and WOLLHEIM, Judges.

EDMONDS, P.J.

Defendant appeals from a judgment of conviction for hindering prosecution. ORS 162.325(1)(a). On appeal, she assigns error to the denial of her motion to suppress evidence of the conduct that gave rise to the charge and statements made to a police officer after her arrest. She also assigns error to the denial of her motion for a judgment of acquittal. We affirm.

As a preliminary matter, we must determine whether we have jurisdiction because of defendant's failure to serve the notice of appeal on the state within the 30-day time limit prescribed by statute. ORS 138.071(1) states that "the notice of appeal shall be served and filed not later than 30 days after the judgment or order appealed from was entered in the register." (Emphasis added.) ORS 19.270(2)(a) states that service of the notice of appeal on adverse parties is jurisdictional and may not be waived. In turn, ORS 138.185(2) states that ORS 19.270 applies to criminal appeals. In addition, the Oregon Supreme Court has recently said that, "serving the proper parties with a notice of an appeal is a jurisdictional requirement. For the purposes of ORS chapter 19, the Court of Appeals has no authority to consider a prospective appellant's appeal without such service." McCall v. Kulongoski, 339 Or. 186, 195, 118 P.3d 256 (2005).

In this case, the judgment of conviction was entered on March 22, 2004. The notice of appeal was filed with the Court of Appeals on April 15, 2004, 24 days after the judgment was entered. However, the notice of appeal was not served on the state until April 26, 2004, 35 days after entry of the judgment. It follows that defendant's notice of appeal was served untimely.

ORS 138.071(4), however, states, in part:

"(a) Upon motion of a defendant, the Court of Appeals shall grant the defendant leave to file a notice of appeal after the time limits * * * if:

"(A) The defendant, by clear and convincing evidence, shows that the failure to file a timely notice of appeal is not attributable to the defendant personally; and

"(B) The defendant shows a colorable claim of error in the proceeding from which the appeal is taken."

The request must be filed no later than 90 days after entry of the judgment being appealed. ORS 138.071(4)(c).

On June 2, 2004, or 72 days after entry of the judgment of conviction, defendant filed a motion for leave to file a late notice of appeal and an amended notice of appeal. In her motion she asserted that the failure to timely serve the original notice of appeal was not attributable to defendant personally and that there existed a colorable claim of error. The state has filed no objection to defendant's motion. Based on the showing made in the motion, we grant defendant's motion for leave to file a late notice of appeal and hold that we have jurisdiction to consider her appeal.

We turn to the undisputed facts that underlie defendant's contentions on appeal. At the time of her arrest, defendant lived in a 20-foot travel trailer in a trailer park in Bend and was on supervised probation. A condition of her probation required her to allow probation officers to conduct "walk-throughs" of her residence. Noncompliance with that condition constituted a violation of her probation. In November 2003, defendant allowed her probation officer to do a walk-through of the trailer in order to determine whether her husband, Mark Silvers, who was soon to be released from prison, could live with her. Silvers's post-prison supervision (PPS) officer, Poole, was also present for the walk-through.

Silvers was released from prison on December 19, 2003, and on December 23, he reported to Poole that the trailer in which defendant lived was his current residence. On December 30, Silvers failed to report for a mandatory meeting with Poole, but he left an answering machine message stating that he would report the following day. Early the next day, Silvers called Poole and told him that he had violated his PPS by taking methamphetamine and that he wanted to report later in the day to accept the consequences. Silvers failed to report to Poole as promised, and, consequently, the circuit court issued a warrant for his arrest on January 5, 2004. Two days later, Poole attempted to serve the arrest warrant at defendant's trailer while he and another probation officer, Wark, were in the neighborhood on another case.

Poole and Wark arrived at defendant's trailer at about 7:10 p.m. They observed a car parked in front of the trailer that was covered with snow and a well-worn footpath through the snow leading to the front door. There was a hasp on the outside of the door that could be used to lock the trailer from the outside; it was unlocked. Poole also noticed that the trailer's heater was operating, and that a light was on inside the trailer. Poole knocked on the door and heard someone moving from the back of the trailer. He then heard a female voice ask, "Who is it?" Poole testified that it did not "register" with him immediately that someone had spoken, so he knocked again and identified himself as "Dave with the probation department." This time, there was no response, and Poole said that it "became very quiet inside." Poole continued knocking, announcing to defendant, "[O]pen up the door. I'm looking for [Silvers]." After several more tries, Poole went back to his car to call for police backup.

When the police officers arrived, Poole knocked on the door again, continuing to identify himself. He announced, "I know [Silvers] is in there. Open up. I'm interested in [Silvers]. You don't need to go to jail for hiding him." He also said, "[Silvers], you have a felony warrant. Don't get [defendant] in trouble. Come to the door and open up. I know you're in there." Wark, who also knew defendant, went to the back of the trailer where a window was open and identified himself. Still, there was no response. Wark then told the police officers that he would place a detainer on defendant based on her failure to allow a walk-through. The police officers also knocked on the door, identified themselves, and announced that they had an arrest warrant for Silvers. One officer warned the occupants that he would release a police dog into the residence if they did not come to the door. After about ten minutes, a police officer opened the door, which was unlocked, and saw defendant and Silvers sitting in the back of the trailer. He ordered Silvers out of the trailer and arrested him. The other police officer, Lotito, took defendant into custody. Lotito asked defendant why she had not opened the door, and she said that Silvers told her not to. He then asked if Silvers had been holding her or was preventing her from coming to the door, and she replied in the negative.

Defendant was charged with hindering prosecution in violation of ORS 162.325. Before trial, defendant filed a motion to suppress the evidence of what occurred, including the statements she had made to Lotito. Defendant claimed that the police lacked probable cause to believe Silvers was in the residence, and therefore their entry into it was illegal. Before the hearing on the motion, defendant waived her right to a jury trial. She and the state then agreed to adopt the testimony from the suppression hearing as the stipulated facts for the trial itself.

The trial court found that there was probable cause to believe Silvers was in the residence at the time the officers went to execute the arrest warrant, and denied the motion to suppress. It explained:

"In this case, what I find, in addition to what was set forth by [the prosecutor], I find what tips it is the fact that there was an initial response with a female voice, `Who is it?' And then once additional information was provided about who it was and what was going to happen, then there was absolutely no response at all after some initial noise in the trailer, and no response, no noise, regardless of what information was being provided."

Defendant then moved for a judgment of acquittal. She argued that she had not blocked the officers' entry and that she had done nothing to hinder their efforts to arrest Silvers. The trial court disagreed, ruling that defendant had engaged in conduct that hindered the arrest of Silvers after she found out that the officers were there to arrest him. Accordingly, the trial court found defendant guilty of the crime of hindering prosecution.

On appeal, defendant makes two assignments of error. In her first assignment, she argues that the trial court erred in denying her motion to suppress, asserting that the police lacked probable cause to believe that Silvers was in the residence. She also argues that the trial court erred when it failed to suppress the statements made after her arrest because she was not given Miranda warnings before she made the statements to Lotito. We review a denial of a motion to suppress evidence for errors of law. State v. Stearns, 196 Or.App. 272, 275, 101 P.3d 811 (2004).

We first consider whether the police had probable cause to believe Silvers was in the trailer. Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution protect the right of occupants to be free from unreasonable searches and seizures of their residences.¹ If a police officer has a valid arrest warrant, that officer lawfully may enter a private residence to make an arrest if the...