State v. Brown

333 P.3d 1153, 264 Or. App. 592, 2014 WL 3953807, 2014 Ore. App. LEXIS 1082
Procedural entryThis page is a short order in State v. Brown. Read the opinion of the Court — 272 Or. App. 424
Court of Appeals of Oregon·Decided August 13, 2014·No. MI100367; A150706·Published

Opinion

HASELTON, C. J.

Defendant, who entered a conditional plea of guilty, ORS 135.335(3),1 for driving under the influence of intoxicants (DUII), ORS 813.010, appeals the resulting judgment, assigning error to the trial court’s denial of his motion to suppress evidence of his intoxication obtained as a result of a warrantless search of his bedroom. Defendant contends that the search was unlawful under Article I, section 9, of the Oregon Constitution,2 and the Fourth Amendment to the United States Constitution.3 For the reasons explained below, we conclude that defendant’s appellate contentions are unpreserved. Accordingly, we affirm.

We review the trial court’s denial of defendant’s motion to suppress for errors of law. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). In doing so, we are bound by the trial court’s express and implicit factual findings if there is constitutionally sufficient evidence in the record to support them. Id. We state the facts in accordance with that standard.

On May 8, 2010, in the early morning, McMinnville Police Officers Zemlicka and Desmond responded to a report that a vehicle was in a roadside ditch outside of a residential area. The officers arrived at the scene at 4:22 a.m. and observed an unoccupied green Ford Taurus in a ditch, with footprints in the mud around the car and muddy handprints on the outside of the car. After retrieving the car’s registration information, Zemlicka called the registered owner. She reported that she had given the car to defendant, who, Zemlicka discovered, lived a few blocks from the scene. At [594]*594that point in the investigation, the officers did not know what had caused the crash.

The officers went to defendant’s residence — a mobile home that he occupied with his mother and grandmother4— and knocked on the front door at around 5:00 a.m. When defendant’s grandmother5 answered the door, Zemlicka explained to her that the officers needed to speak with defendant and asked if she knew where he was. She replied that defendant was in his bedroom. Zemlicka asked if the officers could “come inside and speak with [him.]” She allowed the officers into the residence, led them to defendant’s bedroom, and opened the door. As they stood at the threshold of the bedroom, the officers smelled an “overwhelming odor of alcohol coming from inside the bedroom,” and they saw defendant asleep on his bed with mud on his hands and clothes.

The officers entered the bedroom, and Zemlicka spoke to defendant, who awoke and sat up in bed. Zemlicka stood next to defendant and asked him what he had been doing earlier that evening. Defendant admitted that he had consumed alcohol and crashed the car into the ditch. Zemlicka administered a horizontal gaze nystagmus test to defendant in his bedroom. Shortly thereafter, defendant agreed to accompany Zemlicka outside and undergo other field sobriety tests. Those tests indicated that defendant was intoxicated. He was arrested and subsequently charged with DUII.

Defendant filed a pretrial motion to suppress all evidence obtained as a result of the search of his residence and bedroom because, defendant argued, the search was not supported by a valid exception to the warrant requirement. Specifically, defendant argued that “[t]he officers entered the residence and defendant’s bedroom without exigent purpose or valid consent.”

In opposing defendant’s motion to suppress, the state’s primary contention was that grandmother had consented to a search of the residence and defendant’s bedroom. [595]*595The state argued, in the alternative, that the state had proved that exigent circumstances existed, in that both officers testified that alcohol dissipates and that they would have been delayed in questioning defendant had they attempted to obtain a warrant.

With respect to the purported “probable-cause-plus-exigency” exception, defendant remonstrated that, at the time that the officers entered the residence, they did not have probable cause to believe that defendant had consumed alcohol and operated a vehicle while impaired — and, thus, the state had failed to establish the probable-cause component of that exception to the warrant requirement. In so arguing, defendant focused on the officers’ observations prior to the point at which they entered his residence; defendant did not assert that the officers lacked probable cause for DUII when, standing at the threshold of his bedroom, the officers observed the strong smell of alcohol and the mud. Defendant did not dispute that, if there was probable cause to enter his bedroom, the circumstances were legally sufficient to establish a requisite exigency.

With respect to consent, defendant contended that the state had failed to prove that grandmother had actual or apparent authority to consent to a search of the residence, generally, and defendant’s bedroom, specifically. Defendant did not contend that grandmother’s opening the bedroom door constituted a search.

The trial court denied defendant’s motion to suppress. In so ruling, the court reasoned:

“The person that opened — answered the door, opened the door, allowed the parties to come into the house. She was not ordered to allow them to come in. She consented to their coming in after being asked if they could come in, and took them to the defendant’s room and opened the defendant’s door.
“Officer Desmond stated there was an overwhelming odor of alcohol coming out of the room; and he saw that there was mud on the defendant’s hands, consistent with the person that would have been putting handprints on the car.
[596]*596“At that point in time, they had not only reasonable suspicion to believe that the defendant had committed [DUII], they also had probable cause for that traffic crime[.] ***
“I agree that there was no reasonable suspicion or probable cause to believe that an emergency occurred that would give an exigency to enter the house without a warrant; but there was no requirement for that, as the person with apparent authority[6] to give the consent gave the consent for them to enter and there was no unlawful police access to the house. The police observed the evidence of a crime that had been committed, and they observed that while they were in a place lawful to observe it, and they were, therefore, authorized to continue the investigation * * * »

(Emphases added.)

The preceding excerpt of the trial court’s reasoning demonstrates that the court based its denial of defendant’s motion to suppress on both consent and exigency. That is, when the officers arrived at the residence, they did not have probable cause for an intoxication-related offense; thus, probable cause plus exigency was inapposite with respect to entering the residence without a warrant. Instead, the court determined that grandmother consented to the officers entering the residence, and that she opened defendant’s bedroom door of her own volition, and not at the officers’ suggestion or instruction.

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State v. Brown, 333 P.3d 1153, 264 Or. App. 592, 2014 WL 3953807, 2014 Ore. App. LEXIS 1082 (Or. Ct. App. 2014).

333 P.3d 1153 (State v. Brown) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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