[338] HASELTON, J.
Defendant appeals from his conviction for possession of a controlled substance (marijuana), former ORS 475.992 (2003), renumbered as ORS 475.840 (2005),1 assigning error to the denial of his motion to suppress evidence. Defendant contends that a police officer’s observations of defendant’s possession of marijuana in a residential backyard at 1:00 a.m., and defendant’s consequent admissions and consent to search, were the products of a warrantless search that did not fall within any recognized exception to the warrant requirement. We agree and, consequently, reverse and remand.
The material facts are, for purposes of our review, uncontroverted. At about 1:00 a.m. on May 2, 2005, Medford Police Officer Vollrath arrived at the home of defendant’s friend, Hammes, in response to a complaint about a noise disturbance. Vollrath parked his police car on the street in front of Hammes’s house and, when he got out, he could hear people yelling and screaming behind the house. Vollrath believed that the crime of disorderly conduct was being committed.
A walkway ran from the sidewalk in front of Hammes’s house to the front door of the house. However, Vollrath did not go to the front door. Instead, bypassing the front door, Vollrath walked up a 30-foot long driveway, along the side of Hammes’s house, to a point just beyond the rear side corner of the house, where a chain link fence and gate ran between the corner of the house and the garage located at the end of the driveway. The configuration of Hammes’s property is generally illustrated by the following diagram: [339] Two representative photographs, among several submitted as defense exhibits, are reproduced in the appendix to this opinion.
From that vantage point, Vollrath was able to look through the fence into the backyard. Although it was dark and rainy, Vollrath was able to see into the yard because he had a flashlight and because there was a light near the top of the garage. Vollrath saw defendant and Hammes sitting on a stoop in the backyard, and he identified himself as a police officer. Vollrath then saw defendant pull marijuana plants from two cups and attempt to destroy them by submerging them in a mud puddle in Hammes’s backyard.
Vollrath and Medford Police Officer Kirkpatrick, who had also arrived, then arrested defendant and advised him of his Miranda rights. Kirkpatrick subsequently obtained defendant’s consent to search his home, where police found another marijuana plant and other evidence of marijuana cultivation. Defendant admitted that he had grown all three plants.
Defendant moved to suppress all of the evidence, arguing that it arose from an unlawful search of Hammes’s backyard.2 In particular, defendant contended that Vollrath’s entry into the side and rear areas of the curtilage of Hammes’s house effected a search for purposes of Article I, section 9, of the Oregon Constitution, and that that warrant-less search was unlawful because no exception to the warrant requirement applied.
The state offered two alternative responses. First, the state asserted that Vollrath’s entry into the side and rear areas of the residential curtilage was implicitly invited and, thus, was not a “search” for purposes of Article I, section 9, so that his consequent observations of defendant were “plain view” observations from a lawful vantage point. Second, the state asserted that, even if Vollrath’s entry to that point did effect a warrantless search, that search was supported by probable cause with respect to disorderly conduct.
[340] The trial court denied the motion to suppress, stating:
“I do believe [the officers] had probable cause to believe the crime of disorderly conduct was being committed. I think it was pretty loud, when you take into consideration the time and where they — that the officers were able to hear it, as he exited his vehicle and characterized it as yelling and screaming. And I do feel that the officer, under those circumstances. Under normal circumstances I would agree that — probably not justified in going to the rear of the house and looking in the backyard, from the rear of the driveway and looking into the backyard, but under these circumstances, I do find that it was reasonable and justified for the officers to do so. And I am not exact — it is interesting the characterization of exigent circumstances, but I don’t know how to deal with that, but I am just making a finding that what they did was reasonable, and they were justified in doing it, and justified in being where they were.”3
Following the denial of suppression, defendant entered a conditional plea, pursuant to ORS 135.335(3), to possession of a controlled substance (marijuana).
On appeal, defendant essentially reiterates his position before the trial court. However, the state no longer contends that Vollrath’s invasion of the side and rear areas of the residential curtilage and concomitant observations did not constitute a warrantless search for purposes of Article I, section 9. Indeed, in its brief as respondent, the state concedes that,
“in light of the layout of the property at issue [as depicted in the photographic exhibits], and pursuant to State v. Somfleth, 168 Or App 414, 8 P3d 221 (2000), Officer Vollrath conducted a search when he walked up the driveway of the house.”
Rather, the state argues solely that Vollrath’s warrantless invasion and observations were justified by probable cause [341] and exigent circumstances. Given the state’s position on appeal and the ambiguity of the trial court’s rationale for denying suppression, see 226 Or App at 340 n 3, we begin by addressing the state’s “exigent circumstances” contention.
The state contends that Vollrath had probable cause to believe that the crime of disorderly conduct was being committed in the backyard and that there was a constitutionally cognizable exigency either because Vollrath needed to terminate a continuing crime of disorderly conduct or because Vollrath believed that the noise from the backyard could indicate that people were “having a disagreement” that presented the danger of someone being injured. In the latter regard, the state invokes the “community caretaking” statute, ORS 133.033, which permits an officer to enter “upon the premises of another if it reasonably appears to be necessary” in order to “[p]revent serious harm to any person” or to “Mender aid to injured or ill persons[.]” ORS 133.033(2)(a)(A), (B). Neither of those justifications is availing.4
In State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991), the court generally described the scope of the “exigent circumstance” exception: “An exigent circumstance is a situation that requires the police to act swiftly to prevent danger to life or serious damage to property, or to forestall a suspect’s escape or the destruction of evidence.” Here, as defendant asserts, the crime of disorderly conduct — based merely on people loudly “having an argument” in the middle of the night — did not require “the police to act swiftly to prevent danger to life or serious damage to property, or to forestall a suspect’s escape or the destruction of evidence.” Id. To be sure, defendant’s conduct may have irritated Hammes’s neighbors and disturbed their sleep, but it did not rise to the level of a constitutionally cognizable “exigency.”
[342] The state’s “emergency aid”-based argument is similarly unavailing.5 In State v. Follett, 115 Or App 672, 680, 840 P2d 1298 (1992), rev den, 317 Or 163 (1993), we described the elements of the “Emergency Aid Doctrine” as follows:
“(1) The police must have reasonable grounds to believe that there is an emergency and an immediate need for their assistance for the protection of life.
“(2) The emergency must be a true emergency- — -the officer’s good faith belief alone is insufficient.
“(3) The search must not be primarily motivated by an intent to arrest or to seize evidence.
“(4) The officer must reasonably suspect that the area or place to be searched is associated with the emergency and that, by making a warrantless entry, the officer will discover something that will alleviate the emergency.”
(Footnote omitted.)
Again, the record here is devoid of any evidence that either of the officers responding to the noise complaint had a good faith belief — let alone reasonable grounds to believe— that the noise from the residential backyard indicated “an immediate need for their assistance for the protection of life.” Id. Indeed, the testimony of both Vollrath and the other officer confirms that they were investigating the crime of disorderly conduct — and not that they were attempting to render emergency aid. See generally State v. Salisbury, 223 Or App 516, 524-25, 196 P3d 1017 (2008) (officers heard yelling and screaming within the curtilage of an apartment consistent wdth a “domestic quarrel,” but that did not indicate that violence was occurring and did not justify entry under “emergency aid doctrine”).
In sum, regardless of the existence of probable cause, Vollrath’s warrantless invasion of the side and rear areas of the residential curtilage was not justified by any exigency. [343] Further — and the state does not contend otherwise— Vollrath’s observations, and defendant’s statements and consent to search following those observations, were the unattenuated product of that predicate warrantless intrusion. See generally State v. Hall, 339 Or 7, 115 P3d 908 (2005).
The dissent contends, however, that the trial court’s ruling should nevertheless be affirmed on an alternative ground, viz., that Vollrath’s warrantless invasion and consequent observations did not constitute a “search” for purposes of Article I, section 9. As noted, the state has expressly abandoned, and conceded, that matter on appeal. See 226 Or App at 340. Of course, a respondent’s concession of law is not binding on us. But, here, it is revealing — and correct.
A search, for purposes of Article I, section 9, occurs when “a person’s privacy interests are invaded.” State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986). No search occurs, however, when police officers make observations from a “lawful vantage point.” State v. Ainsworth, 310 Or 613, 617, 801 P2d 749 (1990). A “lawful vantage point” may be within the curtilage of a property in which a defendant has a privacy interest, given that, “absent 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 P2d 7 (1995).
Approaches to points on the property other than a front door, however, are generally not regarded as being approaches to which the occupant has implicitly consented. State v. Ohling, 70 Or App 249, 688 P2d 1384, rev den, 298 Or 334 (1984), is exemplary. In Ohling, officers went to the front door of the defendant’s home to serve a warrant to search a nearby area for evidence of marijuana cultivation. When the officers knocked, they could hear a stereo playing, but no one answered. Id. at 251-52. The officers then “went to the back of the house to see if they could find anyone” but “found the marijuana plants instead.” Id. at 252. We reversed the defendant’s consequent conviction for manufacture of a controlled substance, concluding that the officers’ conduct unlawfully invaded the curtilage of the defendant’s home:
[344] “Neither the warrant nor their status as peace officers gave them any greater right to intrude onto defendant’s property than any other stranger would have. Going to the front door and knocking was not a trespass. Drivers who run out of gas, Girl Scouts selling cookies, and political candidates all go to front doors of residences on a more or less regular basis. Doing so is so common in this society that, unless there are posted warnings, a fence, a moat filled with crocodiles, or other evidence of a desire to exclude casual visitors, the person living in the house has impliedly consented to the intrusion. 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. ‘[W]e do not place things of a private nature on our front porches that we may very well entrust to the seclusion of a backyard, patio or deck.’ The facts of this case do not show either an express or an implied consent for strangers to go to the back of defendant’s house.”
Id. at 253 (citations omitted; emphasis added; brackets in Ohling); see also State v. Glines, 134 Or App 21, 23-25, 894 P2d 516, rev den, 321 Or 512 (1995) (concluding that police had not unlawfully invaded curtilage where the officers went to the defendant’s home but, instead of going to the front door, went to a side entry that was visible from the public sidewalk, had a doorbell, and was adjacent to a common driveway that the defendant shared with his next-door neighbor).
In State v. Somfleth, 168 Or App 414, 424-25, 8 P3d 221 (2000), after reviewing Ohling and Glines at length, we reiterated and amplified the controlling inquiry:
“Our cases have treated location as, in effect, giving rise to rebuttable ‘presumptions.’ The fundamental principle, as emphasized in Ohling, is that intrusions onto residential curtilage are deemed to be trespasses unless the entry is ‘privileged or [has] defendant’s express or implied consent.’ 70 Or App at 252. Nevertheless, given prevailing social norms, the homeowner is presumed to have implicitly consented to entry into the front yard to approach the front door. Conversely, also given prevailing norms, such a presumption of implied consent to enter is not ascribed to other areas of the curtilage. See Ohling, 70 Or App at 253 (‘Going to the back of the house is a different matter.’). Rather, entry onto those areas is presumptively a trespass. Id.
[345] “Nevertheless, that presumptive treatment is not necessarily conclusive: A homeowner can abrogate the presumption of implied consent to approach the front door by undertaking sufficient steps to exclude casual visitors from the front yard. See Ohling, 70 Or App at 253. Conversely, the presumption that other invasions of the curtilage are trespasses can be overcome by evidence that the homeowner has sufficiently implicitly or explicitly invited entry. Thus, in Glines, the doorbell on the side entrance, coupled with the facts that that entrance was visible from the public sidewalk and was directly accessible from the common driveway, so strongly evinced an invitation to the public to use that entry — and the defendant’s concomitant expectation that that entrance would be so used — that the officers’ entry was not a trespass.
“Applying that analysis here, the issue reduces to whether the state overcame the presumption that the officers’ entry through the open back gate was a trespass. In particular, did other circumstances so evince implied consent to enter the backyard as to overcome that adverse presumption?”
(Emphasis added; brackets in Somfleth.) The state, as proponent of the evidence, has the burden of proving an implicit invitation to public entry sufficient to overcome the presumption of trespass.
The dissent at least implicitly acknowledges that construct, see 226 Or App at 352-53 (Wollheim, J., dissenting), and concludes that the combination of two circumstances (although neither alone would be sufficient) evinced the requisite “implied invitation” here. First, “the driveway provided an unobstructed pathway to the rear of the house.” Id. at 357 (Wollheim, J., dissenting). Second, defendant and Hammes were making unreasonable noise, engaging in disorderly conduct, in the backyard of the house at 1:00 a.m. Id. at 356-57 (Wollheim, J., dissenting).
With respect to the “layout” of the property, it is undisputed that, to reach the point from which he made his observations, Vollrath had to walk up the driveway (which was not a shared driveway, as in Glines), bypassing the front door of the residence and traversing the entire width or side of the house to reach the gate between the side of the house [346] and the standalone garage from which he made his observations. Further, from the photo exhibits in this record, there is no reason to believe that, given its juxtaposition between the house and the garage, the gate was visible from the street— much less inviting entry to that point — at 1:00 a.m. on a rainy night. Certainly, there was no structural feature akin to the doorbell on the side entrance in Glines, see 134 Or App at 23-25, that manifested such an intent. Finally, it is undisputed that, at the time of Vollrath’s entry, a car was parked in front of the garage at the end of the driveway— further contradicting any implication of an “invitation” to enter to that point.
Thus, the purported invitation to enter depends on the proposition that the homeowner, Hammes, by engaging in disorderly conduct in his backyard — or, presumably, by permitting defendant to engage in such conduct — implicitly invited the police to enter. In that regard, the dissent posits that it would not “offend social norms of behavior” in such circumstances for a member of the public to walk up the driveway alongside the home to ask defendant to quiet down and, thus, that defendant manifested, through his conduct, an implied invitation of public entry. 226 Or App at 357-58 (Wollheim, J., dissenting).
With respect, the upshot of the dissent’s analysis is that, if a person engages in sufficiently “publicly” obnoxious behavior within the residential curtilage — at any time of the day or night — -that conduct effectively waives constitutional protections against warrantless trespassory invasions. The urban homeowner, sitting on the patio, listening to a ball game with the volume turned up so loud as to disturb his neighbors’ Sunday afternoon peace, the suburban homeowner doing work in her backyard with exceedingly and irritatingly noisy power tools, the kids in the would-be band “practicing” in the backyard at 8:00 p.m. on a summer Saturday evening — all (in the dissent’s view) have invited entry by strangers, including warrantless entry by police officers.
Such an approach, unsupported by Oregon precedent, would qualitatively subvert bedrock constitutional principles that rigorously protect the residential curtilage [347] from warrantless, uninvited intrusions. See generally State v. Dixson/Digby, 87 Or App 1, 6-7, 740 P2d 1224 (1987), rev’d on other grounds, 307 Or 195, 766 P2d 1015 (1988) (addressing constitutional underpinnings of protection of curtilage in context of addressing “open fields” doctrine).6 See also Payton v. New York, 445 US 573, 601, 100 S Ct 1371, 63 L Ed 2d 639 (1980) (emphasizing, for purposes of Fourth Amendment analysis, “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic”).
At base, the dissent misapprehends the meaning and function of implied “invitation” as a qualification of those fundamental constitutional protections. As consistently employed in our case law, “invitation” connotes a manifestation, either by custom or conduct, of the property owner’s anticipatory consent to entry by members of the public to that point of the curtilage. See, e.g., Somfleth, 168 Or App at 425 (framing dispositive issue: “[D]id other circumstances so evince implied consent to enter the backyard as to overcome [the] presumption” that invasion of the backyard is a trespass?); Ohling, 70 Or App at 252 (officers’ entry “was a trespass unless it was privileged or had [the] defendant’s express or implied consent”).
Thus, “invitation” is a function of consent: Would a member of the public reasonably understand, in the totality of the circumstances, that the property owner has consented, by custom or conduct, to the entry onto the curtilage to that point? Or, more particularly here, would a member of the public reasonably understand that the property owner has so [348] manifested such consent as to overcome the presumption that entry into the “nonfront” areas of the curtilage is a trespass?
The dissent erroneously conflates consent — the constitutional prerequisite to entry — with notions of reasonable foreseeability.7 If a homeowner is playing music (or listening to a ball game, or using power tools, or yelling) too loudly in the backyard, it may be reasonably foreseeable that irate neighbors may enter to confront the homeowner. But the homeowner has not, even implicitly, manifested consent to [349] that entry. Indeed, quite the opposite: The irate neighbors may want to enter, but the homeowner does not want them— or any other stranger — there.
The dissent maintains, nevertheless, that the entry was “invited” by reference to “social and legal norms of behavior.” Except in rare instances of communal behavior so common and well established as to be akin to custom — e.g., that a property owner has, in the absence of manifestations of exclusion, presumptively consented to strangers going to the front door — -judicial reference to such “norms” is illusory. Are they judicially noticeable? Or do we “know them when we see them”? In all events, even if social and legal norms can be reliably identified, they are not conclusive of the protections afforded under Article I, section 9. See State v. Campbell, 306 Or 157, 171, 759 P2d 1040 (1988) (“Social and legal norms cannot govern the scope of the constitutional provision, which itself plays a substantial role in shaping those norms.”).
Certainly, the dissent’s premise that, under “social norms,” a person is privileged to confront a disruptive neighbor, in the neighbor’s backyard, in the middle of the night is hardly self-evident. Rather, many, perhaps most, Oregonians might (a) telephone the neighbor; or (b) go to the neighbor’s front door and, failing a response, go home; or (c) call the police, who would go to the neighbor’s front door, knock loudly, and, failing a response, would either abandon their efforts or obtain a warrant or stop by for a chat with the neighbor the next day. Cf. Ohling, 70 Or App at 253 (officers unlawfully went to backyard after receiving no response after knocking on front door: “Although the officers may have had good reason to believe that someone was at defendant’s house, they had no more legal right to continue to look for that someone after their knocking proved unproductive than anyone else would have.”).8
Our point is not to engage the dissent in a “ ’tis too; ’tis not” debate over prevailing “norms” to be determined by a majority vote of this court en banc. Rather, it is precisely [350] because such matters are subject to reasonable dispute, and not consensus, that the circumstances here do not evince implied consent to enter.
Defendant did not, by engaging in disorderly conduct, impliedly consent to a warrantless trespassory invasion of the residential curtilage. The evidence sought to be suppressed was the unattenuated product of the concomitant unlawful search. See generally Hall, 339 Or 7. Consequently, the trial court erred in denying defendant’s motion to suppress.
Reversed and remanded.