State v. Unger

• Decision Date: 26 September 2012
• Docket Number: A144192.,09C42443
• Citation: 287 P.3d 1196,252 Or.App. 478
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Mark Lawrence UNGER, Defendant–Appellant.
• Court: Oregon Court of Appeals

252 Or.App. 478

287 P.3d 1196

STATE of Oregon, Plaintiff–Respondent,

v.Mark Lawrence UNGER, Defendant–Appellant.

09C42443; A144192.

Court of Appeals of Oregon.

Argued and Submitted April 12, 2011.

Decided Sept. 26, 2012.

Jason E. Thompson, Salem, argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson, LLP.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.

DUNCAN, J.

This is a criminal case in which defendant appeals the trial court's judgment convicting him of two counts of manufacture of cocaine, ORS 475.876, and two counts of endangering the welfare of a minor, ORS 163.575. On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence that police officers discovered after they entered his backyard, knocked on his back door, and obtained his consent to enter and search his house. Defendant argues that the officers' entry into his backyard violated his rights under Article I, section 9, of the Oregon Constitution, ¹ and that the violation tainted his consent to the officers' entry into and search of his house. For the reasons explained below, we agree and, therefore, reverse and remand.²

We review the trial court's denial of a defendant's motion to suppress for errors of law. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005). We are bound by the trial court's findings of historical fact if they are supported by constitutionally sufficient evidence. Id. Stated in accordance with that standard, the relevant facts are as follows.

On the morning of April 17, 2009, four officers went to defendant's residence to conduct a “knock-and-talk.” The officers had received two reports of drug activity at the house, and they wanted to talk to defendant about the reports and obtain his consent to a search of his house. The officers did not have a warrant to search the house.

To reach defendant's house, the officers turned off a paved road, drove down a gravel road, and then drove down a dirt road. Defendant's house is a split-level house. The officers first went to defendant's front door, which is on the same level as the driveway. One officer, Cypert, knocked on defendant's front door, but no one answered. After waiting two to three minutes, two other officers, Jaroch and Scharmota, went to a door on the lower level of the house, also on the front of the house. They knocked, but again no one answered. After that, the fourth officer, Roberts, walked around the back of defendant's house and knocked on a sliding glass door, which led to defendant's bedroom. Defendant, who had been asleep, answered the door. Roberts told defendant that the officers were at his house to investigate the complaints they had received, and Roberts asked for permission to enter the house. Defendant asked to put on a robe and then allowed Roberts and the three other officers, who had joined him at the back door, to enter.

Defendant led the officers from his bedroom, where his girlfriend was still in bed, into his kitchen. Roberts again told defendant that they were investigating complaints about drug activity and asked defendant if he would show them around the house. Defendant did. On the lower level of defendant's house, Roberts saw a torn piece of a baggie, inside of which he saw white powder and some small crystals. Roberts told Cypert that he had found the baggie, and Cypert relayed that information to defendant. Roberts left the house to conduct a field test on the baggie to determine whether, as he believed, it contained methamphetamine residue.

Cypert read defendant a “consent to search” card. Defendant refused to sign the card and said he wanted to call his lawyer. According to Cypert, defendant gave the officers “verbal consent to continue to look through the house,” but said “that he would not sign the card because he viewed the card as being a legal document and he would not sign a legal document without first consulting with his attorney.” The officers continued to search defendant's house, and defendant called his attorney. After speaking with his attorney, defendant told the officers that “[h]is attorney wanted everyone out of the house.” Cypert told defendant that he knew that defendant had spoken with his attorney, but that “it was ultimately up to [defendant] to make [the] decision if he wanted [the officers] out of the house.” Defendant called his attorney a second time and, after the call, told the officers that he wanted them out of the house. At that point, Roberts informed everyone that the baggie had tested positive for methamphetamine, and the officers arrested defendant.

The officers used information they had obtained during their search of the house to obtain a search warrant, which they executed later the same day. The execution of the warrant led to the discovery of other evidence of drug crimes.

Defendant filed a motion to suppress the evidence obtained as a result of the officers' warrantless entry into his yard and search of his house, as well as the evidence obtained as a result of his arrest and the subsequent search of his home pursuant to the warrant. At the hearing on the motion, defendant argued that the officers violated his rights when they entered his backyard and that all evidence derived from the violation had to be suppressed, including the evidence that the officers obtained during their subsequent searches of the house.

In response, the state argued that, even if the trial court found that “the officers went to an illegal location by violating the curtilage and going to the back, they didn't witness anything illegal that drew their attention to the defendant.” Therefore, according to the state, “there [was] no exploitation of the illegality.”

The trial court denied defendant's motion to suppress. Defendant appeals, and, on appeal, the parties renew the arguments they made in the trial court.

We begin with the basic law. Article I, section 9, protects individuals from unreasonable searches and seizures. A warrantless search or seizure is per se unreasonable unless it falls within “one of the few specifically established and well-delineated exceptions to the warrant requirement.” State v. Davis, 295 Or. 227, 237, 666 P.2d 802 (1983) (internal quotation marks omitted). In order for the state to secure the admission of evidence resulting from a warrantless search or seizure, the state must prove that the search or seizure was justified by an exception to the warrant requirement. Id. Those exceptions are narrowly drawn. State v. White, 211 Or.App. 210, 214, 154 P.3d 124,adh'd to on recons.,213 Or.App. 584, 162 P.3d 336,rev. den.,343 Or. 224, 168 P.3d 1155 (2007).

Consent is an exception to the warrant requirement. Davis, 295 Or. at 237, 666 P.2d 802. An individual's consent to a search or seizure is invalid if it is the product of illegal police conduct. Hall, 339 Or. at 21, 115 P.3d 908;State v. Pierce, 226 Or.App. 336, 350, 203 P.3d 343 (2009).

In this case, the officers entered defendant's backyard and, after obtaining defendant's consent, entered and searched his house. For the reasons explained below, we conclude that (1) the officers' entry into defendant's backyard violated defendant's Article I, section 9, rights because it was a search and it was not justified by either a warrant or an exception to the warrant requirement, and (2) the officers' entry into and search of defendant's house also violated Article I, section 9, because, although defendant consented to the entry and search, his consent was invalid because it was the product of illegal police conduct, specifically, the illegal entry into his backyard.

We turn first to the officers' entry into defendant's backyard. As described, the officers went into defendant's backyard and knocked at his back door. Under Oregon law, “intrusions onto residential curtilage are deemed to be trespasses unless the entry is ‘privileged or [has the occupant's] express or implied consent.’ ” State v. Somfleth, 168 Or.App. 414, 424–25, 8 P.3d 221 (2000) (quoting State v. Ohling, 70 Or.App. 249, 252, 688 P.2d 1384,rev. den.,298 Or. 334, 691 P.2d 483 (1984)). “[A]bsent 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); see also Ohling, 70 Or.App. at 253, 688 P.2d 1384. However, “[a]pproaches to points * * * other than a front door * * * are generally not regarded as being approaches to which the occupant has implicitly consented.” Pierce, 226 Or.App. at 343, 203 P.3d 343. Accordingly, we have held that, as a general matter, an officer may enter a front yard and knock on a front door, but an officer may not enter a backyard and knock on a back door. Ohling, 70 Or.App. at 253, 688 P.2d 1384. Such an entry is a trespass and constitutes a search for the purposes of Article I, section 9. Ohling, 70 Or.App. at 252, 688 P.2d 1384.

Ohling is illustrative. In Ohling, we held that officers trespassed when, after receiving no answer when they knocked at the defendant's front door, they walked around to the back of his house. 70 Or.App. at 252–53, 688 P.2d 1384. We explained, “Going to the front door and knocking was not a trespass. * * * Going to the back of the house is a different matter. Such an action is both less common and less acceptable in our society. There is no implied consent for a stranger to do so.” Id. at 253, 688 P.2d 1384. Applying that rule, we concluded that the officers trespassed and the trespass violated the defendant's Article I, section 9, rights. Id. at 254, 688 P.2d 1384;see also Pierce, 226 Or.App. at 350, 203 P.3d 343 (officer trespassed by bypassing the defendant's front door and...