State v. Freund

796 P.2d 656, 102 Or. App. 647, 1990 Ore. App. LEXIS 875
CourtCourt of Appeals of Oregon
DecidedAugust 1, 1990
Docket87-1282; CA A60284
StatusPublished
Cited by31 cases

This text of 796 P.2d 656 (State v. Freund) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Freund, 796 P.2d 656, 102 Or. App. 647, 1990 Ore. App. LEXIS 875 (Or. Ct. App. 1990).

Opinions

[649]*649WARREN, J.

Defendant appeals her conviction for manufacturing, possessing and delivering marijuana. ORS 475.992. She assigns error to the trial court’s denial of her motion to suppress the marijuana and paraphernalia seized from her property and from inside her house. We reverse.

On September 3,1987, an anonymous caller informed Sergeant Hepp that defendant and Nemarnik were growing marijuana at a house on Gibson Road. Hepp learned Nemarnik’s license plate number from his probation officer. The next day, Hepp and Officer Landon went looking for the house, which the caller had described in general terms. Eventually, they drove their unmarked vehicle down defendant’s 40 foot driveway and recognized Nemarnik’s vehicle license number. Defendant approached their vehicle, and Hepp asked about a fictitious person and then left. Defendant’s neighbors confirmed that she lived next door. The officers peered over the neighbors’ fence at defendant’s property, but did not see any marijuana.

When support arrived, five plainclothes, armed officers in three unmarked vehicles drove down defendant’s driveway. Defendant, Nemarnik and another man were outside. Hepp got out of his vehicle and met defendant halfway to the house. Hepp identified himself as “Sergeant Hepp of the Washington County Sheriffs Department” and showed her his badge. He testified that this then occurred:

“I told her that I was there to pick up the marijuana plants that she was growing. She seemed shocked. She didn’t say anything. She just stood there and looked at me. I again told her that I was there to pick up the marijuana plants that she had growing and that I wanted to do it as calmly [and] efficiently as possible.”

She pointed to an area behind the house as she replied that she had some marijuana plants growing there for her personal use. Hepp advised her of the Miranda rights, and she said that she understood. Hepp asked her “if she would take us to them to show us where they were and she agreed and she walked up behind the house.”

Defendant showed Hepp nine marijuana plants in the yard. Hepp told her that they would seize the marijuana and [650]*650“if she had any illegal contraband in the house that we would want to seize that as well.” Hepp read her a consent form that informed her that she had the right to refuse consent, and she signed the form. Once inside, Hepp smelled “growing marijuana,” and the officers found some shredded marijuana, a scale and a bong. Hepp noticed a deadlocked door that appeared to lead to the garage, and he asked her if they could go in. Defendant said, “[N]o * * *. I don’t want you to search anymore.”

Hepp told defendant that if she did not consent, he would apply for a warrant and felt confident that he could get one. He said that that would take several hours and that one of the officers would have to remain at the house. Hepp told her that if marijuana were found in the garage, she would not face additional charges, because they had already found enough marijuana to charge her. He informed her that he could arrest her and take her to jail and that she would not be arraigned until Tuesday. If she cooperated, however, he would merely issue a citation. He asked her to read the consent form again, and, after conferring with Nemarnik, she consented. In the garage, they found marijuana plants, “grow lights” and a 300 gallon water tank.

Defendant argues that: (1) the officer’s first drive down the driveway was an unlawful search; (2) the officer’s second drive down the driveway was an unlawful search; (3) the second encounter with defendant was an unlawful stop; (4) the officer’s initial statement was custodial interrogation not preceded by warnings; (5) the later questioning was improper, because she did not waive her right against self-incrimination; (6) the officers unlawfully secured the premises; (7) defendant did not consent to a search of her yard; and (8), if she did consent, her consent was involuntary.

We need not resolve arguments one through six, because we think that the case stands or falls on the issue of defendant’s consent to the search of her yard. On that issue, the trial court found:

“While I’m still thinking about the ‘we’re here to pick up the marijuana,’ I’m not terribly impressed with the show of force argument as a coercive factor. I think there is good reason for that and it was expressed by several of the deputies [651]*651as safety. Also through the years I have noticed that physically large and imposing police officers have much less trouble with the public than physically small police officers. There just doesn’t seem to be the kind [sic] of trouble. People don’t challenge them and there aren’t the ugly kindfs] of confrontations and physical battles that there might be. Until you get liquor involved and then it doesn’t seem to matter.[1]
“There were three police cars, five policemen and three of the people that they were dealing with. There was probably some show of force, but it seems to me, that the safety considerations are important. There may be a bit of coercive atmosphere there and that’s part of the totality of the circumstances.
“All three cars were unmarked so we don’t have the kind of show of force with police cars decorated out with stars on them and stripes of colors and banks of lights situation. They were three unmarked cars. Five or six people. Going up there at a normal speed, not sliding to a halt with the doors opened and people pouring out with guns drawn. Seemed to be pretty casual situation and not even the kind of coercive uniform situation. Some of them even described exactly what they were wearing, casually dressed.
"* * * * *
“It seems to me, that while that is * * * getting on toward an unlawful coercive situation that that was not so coercive as to make her pointing and comment that the marijuana is for my personal use unlawful. She was given the Miranda rights and she did understand. As a matter of fact, at some later point as was pointed out, she stopped the situation and was not afraid to do so. I understand she could and she did. So it seems to me when they went up to look at the plants that they had given her [sic] consent to do so. Consent can be given in a number of different ways.”

We are not bound by the trial court’s conclusions, if the historical facts do not meet the constitutional standards for a valid consent to search. State v. Warner, 284 Or 147, 585 P2d 681 (1978).

When the state relies on consent to justify a warrantless search, it has the burden of proving by clear and [652]*652convincing evidence that, under the totality of circumstances, the consent was the product of the defendant’s free will and was not the result of coercion, express or implied. Schneckloth v. Bustamonte, 412 US 218, 226-27, 93 S Ct 2041, 36 L Ed 2d 854 (1973); State v. Gaither, 76 Or App 201, 708 P2d 646 (1985). “Mere acquiescence to lawful authority is not consent.” State v. Little, 249 Or 297, 302, 431 P2d 810 (1968). See also Bumper v. North Carolina, 391 US 543, 88 S Ct 1788, 20 L Ed 2d 797 (1968).

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Cite This Page — Counsel Stack

Bluebook (online)
796 P.2d 656, 102 Or. App. 647, 1990 Ore. App. LEXIS 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-freund-orctapp-1990.