State v. Hitesman/Page

833 P.2d 306, 113 Or. App. 356, 1992 Ore. App. LEXIS 1116
CourtCourt of Appeals of Oregon
DecidedJune 3, 1992
DocketCR89232, CR89231 CA A66746 (Control) CA A66778
StatusPublished
Cited by24 cases

This text of 833 P.2d 306 (State v. Hitesman/Page) 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. Hitesman/Page, 833 P.2d 306, 113 Or. App. 356, 1992 Ore. App. LEXIS 1116 (Or. Ct. App. 1992).

Opinion

*358 DEITS, J.

In this consolidated appeal, defendants seek reversal of their convictions for manufacture of a controlled substance. ORS 475.992. They assign error to the trial court’s denial of their motions to suppress and to controvert. They also argue that some of the conditions of probation imposed by the trial court are invalid. We affirm the convictions, but vacate the conditions of probation.

In June, 1989, the Wasco County Sheriffs office received an anonymous letter saying that defendant Page was growing marijuana on his property, a 40-acre parcel located in rural Wasco County. On June 15, Deputy McCormick and Detective Lennox, dressed in civilian clothes, went to the Page residence, which is located in the northwest corner of the property off Winslow Road. Lennox went to the door of the house and spoke with a person who answered the door and identified himself as “Page.” 1 Lennox asked for the address of a person who lived in the area. McCormick saw gardening tools on the property. That information was included in the affidavit supporting the issuance of the search warrant.

On June 19, McCormick returned to the property with two Oregon State Police officers. They turned off Wins-low Road onto a dirt road located on property owned by Hansen that is adjacent to Page’s property. There were two “No Trespassing” signs posted on the dirt road near the Winslow Road junction. Both signs were faded, and one was not very legible. None of the officers saw the signs. They parked their car on the dirt road and walked across Hansen’s property and onto the. unfenced southern half of the Page property. The officers came to a fence on the Page property that divided the north and south halves. One of the state police officers climbed over the fence. Nothing relating to a marijuana operation was seen by the officers at that time. They returned the next day and parked in the same place. This time they walked east across Hansen’s property. They came to a fence that separated Hansen’s and defendant Page’s property. They did not cross the fence but, from their vantage point on Hansen’s property, they saw marijuana plants growing on the Page property. That information was *359 also included in the affidavit supporting the search warrant. Defendants were arrested after police searched the Page property pursuant to the warrant on June 21.

Defendants argue that the trial court erred in denying their motion to suppress the evidence obtained in the search because

“the officers’ observations which formed the basis for the issuance of the search warrant were the direct result of ‘freewheeling official misconduct’ by the police in that their observations were the direct result of repeated unlawful activity.”

If any of the information included in the affidavit supporting the search warrant was unlawfully obtained in violation of defendants’ rights under Article I, section 9, of the Oregon Constitution, it must be excluded from consideration in deciding whether the warrant was properly issued. State v. Donahue, 93 Or App 341, 345, 762 P2d 1022 (1988), rev den 307 Or 303 (1989). Defendants characterize all of the police entries on the Hansen and Page properties as trespasses.

Defendants argue that the first illegality occurred when McCormick and Lennox went to the front door of the Page residence. They assert:

“The June 15,1989, entrance onto the Page property was purely a pretext: in plain English, the officers lied about the reason they were there and they intentionally misled the occupant of the property about who they were.”

However, by definition, an undercover officer performs under pretext in an attempt to observe what a uniformed officer could not. Such activities, in themselves, are not unlawful. As the Supreme Court held in State v. Campbell, 306 Or 157, 167, 759 P2d 1040 (1988), “if an undercover police officer is invited into a home and observes illegal conduct, the officer has not committed a search.” Moreover, we have held that approaching a person’s front door and knocking is not a trespass, unless the resident has evidenced a desire to exclude casual visitors. State v. Ohling, 70 Or App 249, 253, 688 P2d 1384, rev den 298 Or 334 (1984); see, e.g., State v. Carter/ Burton, 54 Or App 852, 636 P2d 460 (1981). In this case, there were no physical barriers to or signs oh .the Page driveway or on the house to evidence an intent to exclude visitors.

*360 Defendants rely on State v. Donahue, supra, in which we held that a police officer acted unlawfully when he accompanied a meter reader onto the defendant’s property. We reasoned that the officer was trespassing, because the implied permission to enter the property extended to the meter reader did not also extend to the police or to the general public. However, we distinguished situations where the police simply approach the front door of a residence, given that there is a generally implied consent for the general public to approach residences, unless circumstances indicate that the consent has been withdrawn. We conclude that in this case, unlike in Donahue, the officers did not act beyond the implied scope of consent in approaching the Page property. The officers’ conduct on June 15 was not unlawful.

Defendants next argue that, on June 19 and 20, the police obtained information “from an unlawful vantage point, ’ ’ because they trespassed on the Hansen property twice and the Page property once. Defendants contend that the intrusions were unlawful and were, therefore, a violation of their privacy rights protected by Article I, section 9. If information is collected from an unlawful vantage point, it may not be used to support the issuance of a search warrant. See State v. Breshears/Oliver, 98 Or App 105, 112, 779 P2d 158 (1989). We conclude, however, that the information was not obtained from a vantage point that was unlawful as to defendants.

In State v. Dixson/Digby, 307 Or 195, 766 P2d 1015 (1988), the Supreme Court concluded that an entry onto a person’s unbounded and unimproved land does not necessarily violate privacy interests under Article I, section 9. In order to preserve a privacy interest, the owner or resident must demonstrate an intent to exclude others.

“An individual’s privacy interest in land he or she has left unimproved and unbounded is not sufficient to trigger the protections of Article I, section 9. Thus, it is not sufficient that the property in question is privately owned, or that it is shielded from view by vegetation or topographical barriers, because those features do not necessarily indicate the owner’s intention that the property be kept private. A person who wishes to preserve a constitutionally protected privacy interest in land outside the curtilage must manifest an intention to exclude the public by erecting barriers to entry, such as fences, or by posting signs. * * * [I]f land is fenced, *361

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Cite This Page — Counsel Stack

Bluebook (online)
833 P.2d 306, 113 Or. App. 356, 1992 Ore. App. LEXIS 1116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hitesmanpage-orctapp-1992.