State v. Devine

756 P.2d 33, 91 Or. App. 408, 1988 Ore. App. LEXIS 1002

• Court: Court of Appeals of Oregon
• Decided: June 8, 1988
• Docket: 10-86-05350; CA A44327
• Status: Published

Opinions

ROSSMAN, J.

In a trial on stipulated facts, defendant was found guilty of unlawful possession of a controlled substance. ORS 475.992. He appeals an order denying his motion to suppress evidence seized by police during a search of his apartment. The issue is whether the apartment, a converted section of a garage, was within the scope of the search warrant. We affirm.

On August 14, 1985, police obtained a warrant to search the premises at 442 W. Centennial in Springfield, further described “as a single story, wood framed dwelling, white and black in color, located on the north side of W. Centennial, Springfield, Lane County, Oregon, with the numbers 442 being located on the residence.” The supporting affidavit included information provided by an informant who claimed that he had observed defendant “processing a large methamphetamine reaction” at his residence on August 11. It stated that the affiant and another officer had driven the informant by defendant’s purported address for identification. The informant pointed out the premises described in the warrant. The affiant later checked the police computer and confirmed that defendant listed 442 W. Centennial as his address.

Defendant acknowledges that the warrant is drawn with sufficient particularity as required by the Fourth Amendment and Article I, section 9. He argues, however, that the officers executing the warrant went beyond the scope of the warrant when they searched his garage apartment. He contends that the police should have known that his garage apartment was a separate living quarters by the number 442 1/2 which appeared above the door and the fact that the garage was white and had aluminum siding, unlike the description in the warrant of a black and white wood framed dwelling.

The trial court found that the warrant “was lawfully issued upon probable cause for the search of the premises located at 442 W. Centennial.” It further found that defendant’s living quarters were within those premises and that “the police officers objectively and reasonably believed the entire premises located at 442 W. Centennial, including defendant’s living quarters designated as 442 1/2 W. Centennial, was a single family dwelling.”

Reasonableness is the test for searches under both the Fourth Amendment and Article I, section 9. A warrant to search “premises” is valid for all portions of the described buildings and those appurtenant structures which reasonably appear to be part of those premises. Generally, if the premises to be searched are identified by street number, the search is not limited to the dwelling house but may also extend to the garage and other structures deemed to be within the curtilage. 2 La Fave, Search and Seizure, 312 § 4.10(a) (1987). We focus on the objective factors available to the officers at the time when they executed the warrant. See State v. Willcutt, 19 Or App 93, 97, 526 P2d 607, rev den (1974); see also, State v. Coatney, 44 Or App 13, 19, 604 P2d 1269, rev den (1980).¹

The “premises” at 442 W. Centennial consisted of a house and garage. Although not sharing a common roof, the structures were apparently quite close to each other with a deck between them. There is a driveway beside the house from the street to the garage. The garage had three outside doors, an overhead door opening from the garage area to the alley, a sliding door from the garage area to the back yard of the main residence and a door from defendant’s apartment area, opening toward the street. The small numbers 442 1/2 appeared above that door. There was one mailbox at the main house. The photographs of the premises in the record show what is apparently a single-family dwelling and a garage. We agree with the state’s assessment that the objective characteristics would indicate that the premises at 442 W. Centennial consisted of a single residence with a garage.

The officer executing the warrant, Spencer, testified that he had driven by the premises before and believed it to be comprised of a house with a garage behind it. He also testified that he at no time had any indication that the garage was, in fact, a separate residence from the main house. He testified that he never noticed the numbers above the garage door which opened into defendant’s apartment either when driving by or when executing the warrant.

When the police executed the warrant, they first forcibly entered the structure bearing the number 442. Spencer read defendant’s grandmother the warrant and gave her a copy; nothing was seized. The officers then proceeded to the garage structure and forcibly entered what turned out to be defendant’s apartment. The numbers above defendant’s door were small, such that a reasonable officer making a forced entry under a warrant for the “premises” would not have noticed them. Moreover, there was no reason for the officers to be looking for house numbers when by all reasonable appearances the building they were entering looked like an ordinary garage. It is also reasonable that in the commotion of making the entry the officers would not distinguish between the white wood siding, mentioned in the warrant, and the white aluminum siding on the garage.

The defendant and the dissent argue that, even if the officers were initially reasonably unaware that the garage contained a separate dwelling, as soon as they stepped inside they were chargeable with knowing that they had entered a separate dwelling. However, there is nothing in the record indicating that, when the officers forcibly entered the garage, they saw facts which put them on notice, or reasonably should have put them on notice, that they were in a separate residence.

Defendant’s grandmother testified that the apartment consisted of two rooms, including a kitchen and a bathroom with a toilet and shower. Even if the record disclosed that the officers first noticed a bed and a sink, that would not necessarily have alerted them to the fact that they had entered a separate dwelling unit not covered by the warrant. That there was more living space in the garage, in addition to the main house, does not by itself render the living quarters in the garage a separate dwelling unit requiring a separate warrant.

Defendant’s presentation, at the suppression hearing, of additional facts which might support a conclusion that the garage contained a separate residence outside the scope of the warrant, i.e., that defendant rented a portion of the garage, had a key which locked the doors to it and received mail at the main house addressed both to 442 and 442 1/2 W. Centennial, does not change the information objectively available to the officers on the scene.

The external indicia did not indicate that the “premises” consisted of more than one residence. The officers did not become aware of any additional facts, when they executed the warrant, sufficient to cause a reasonable person to believe that there were actually two separate dwellings. Therefore, the search of the garage was lawful in executing the warrant.

Affirmed.

1 In Willcutt, the Supreme Court examined the objective characteristics apparent to the officers applying for and executing the warrant to determine not only whether the warrant was drawn with sufficient particularity but also whether the search was within the limits of the warrant.