State v. Salah ( 2024 )

576 October 23, 2024 No. 745
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
ABDIKADAIR MOHAMED SALAH,
Defendant-Appellant.
Washington County Circuit Court
22CR02733; A180088
Janelle F. Wipper, Judge.
Argued and submitted April 30, 2024.
Carla E. Edmondson, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
POWERS, J.
Remanded for resentencing; otherwise affirmed.
Cite as 335 Or App 576 (2024) 577
POWERS, J.
Defendant appeals from a judgment of conviction
for harassment, ORS 166.065(3), raising five assignments
of error. He first assigns error to the denial of his motion
to suppress evidence, arguing that neither the officer-safety
exception nor consent justified the warrantless entry into
his home. Conceding that the officer-safety exception does
not apply in this case, the state remonstrates that the dep-
uty entered under a reasonable belief of implied consent. As
explained below, because there is sufficient evidence to sup-
port the trial court’s determination that the sheriff’s deputy
entered the home based on implied consent, the court did not
err in denying defendant’s motion to suppress. Defendant’s
last four assignments of error challenge the imposition of
four special conditions of probation because they were not
announced in open court and because the conditions do not
reasonably relate to defendant’s crime of conviction. The
state concedes, and we agree, that the court erred by failing
to announce the special probation conditions in open court.
Accordingly, we remand for resentencing and otherwise
affirm.
We begin with defendant’s challenge to the denial
of his motion to suppress. We set out the background facts
based on the trial court’s express and implicit findings con-
sistent with the trial court’s denial of the motion to sup-
press. Ball v. Gladden, 250 Or 485, 487-88, 443 P2d 621(1968). Defendant called 9-1-1 to report a verbal argument
with S, his wife. Deputy Hazel with the Washington County
Sheriff’s Office responded to the call and arrived approxi-
mately fifteen minutes later. As Hazel approached the apart-
ment, defendant opened the apartment door, came outside,
and began talking to her on the front patio. S and their four
children stood in the doorway and watched. Defendant and
S were separated by several feet. No one had visible injuries.
When Officer Hinkelman with the Hillsboro Police
Department arrived as the cover officer, defendant told
Hazel, “No. We can talk over here. I—I called you guys.”
Hazel believed that defendant did not want her to speak
with S, and she told defendant that she had to speak with
both parties. In response, defendant said, “Okay. Okay.”
578 State v. Salah
Shortly after the cover officer arrived, S started
yelling in a language that the officers did not understand.
S was pointing at defendant, and she was visibly upset. At
that time, S was standing a few steps back from within the
doorway and the door was wide open. In response to the yell-
ing, Hazel entered the apartment and shut the door. Hazel
did not speak with S before entering the apartment.
Once inside the home, S turned away from Hazel
and walked into the kitchen. The deputy asked one of the
children if anyone else was home and asked if they could tell
her S’s name. Hazel called a Somali interpreter and asked
S to come talk to the interpreter, who was on her cellphone
speaker. S walked towards the deputy and spelled her name
for the interpreter. S continued to speak in Somali while
crying and pointing outside to defendant, who continued
talking with the cover officer on the patio. The interpreter
relayed that S described that defendant had pushed S and
threw water on her. S showed the deputy the spot where the
floor was wet. Hazel took photos of the scene but did not col-
lect any physical evidence.
Before trial, defendant moved to suppress—solely
under the Fourth Amendment to the United States
Constitution—any statement and all derivative evidence
discovered after Hazel entered the apartment. Defendant
argued in his written motion, supporting memorandum,
and at the suppression hearing that he had objected to
Hazel’s entry and that no exception to a warrantless search
applied. Citing to Georgia v. Randolph, 547 US 103, 106, 126
S Ct 1515, 164 L Ed 2d 208 (2006), defendant asserted that
law enforcement could not enter the residence even if S con-
sented because, in his view, he made an express denial of
consent. The state remonstrated that this was not a search
protected by the Fourth Amendment and, alternatively, the
entry was lawful because either the officer safety or the exi-
gent circumstances exception applied. Further, responding
to defendant’s reliance on Randolph, the state argued that
there was not an express denial in that defendant “never
expressly told officers not to enter the house.”
After holding a hearing on defendant’s motion in
which it received into evidence body-cam footage from the
Cite as 335 Or App 576 (2024) 579
responding officers and heard testimony from Hazel, the
trial court denied defendant’s motion, concluding that there
was a search under the Fourth Amendment because there
is a privacy interest in the home and that the entry was
lawful both because the officer-safety exception applied and
under Randolph. The court concluded that, “given what was
happening at that particular time, it was reasonable for the
officer to go in, separate the parties and close the door.” In
denying the defendant’s suppression motion, the court made
several factual findings: (1) there was no express denial by
defendant to have officers come into the home; (2) yelling
and screaming between S and defendant occurred within
“mere seconds” after the deputies showed up to respond to a
domestic violence call; and (3) there was no further expres-
sion of denial of consent once Hazel was inside the house. In
making its ruling, the court commented that Randolph, 547
US at 117-21, “addresses the ability * * * for officers to talk to
both parties in a domestic violence situation.” The court con-
cluded that the exception for exigent circumstances did not
apply because only a verbal argument had been reported,
and defendant was already outside of the apartment.
Ultimately, the jury convicted defendant of harass-
ment. At sentencing, the state requested that the trial court
impose the domestic-violence package of supervision condi-
tions. Defendant objected on the grounds that it was not rea-
sonably related to the crime of conviction, harassment, and
he requested the anger-management package instead. The
court imposed the domestic-violence package and did not
specify any of the conditions within the package when it pro-
nounced defendant’s sentence. The court advised defendant
that his translator would go “through the entire domestic
violence package” with defendant. The record does not dis-
close whether the translator went through the package with
defendant, nor is there anything in the record that suggests
that defendant was provided any documentation explaining
the details of the domestic-violence package.
On appeal, defendant first assigns error to the
denial of his motion to suppress. We review a court’s ruling
on a motion to suppress for errors of law. State v. Ehly, 317
Or 66, 75, 854 P2d 421 (1993). We are bound by the trial
580 State v. Salah
court’s factual findings if there is constitutionally adequate
evidence to support them. Id. If the court did not make
express findings of fact on all pertinent issues, we “presume
that the facts were decided in a manner consistent with the
court’s ultimate conclusion,” but only if the evidence allows
for application of that presumption. Id.Renewing his Fourth Amendment argument on
appeal, defendant asserts that the officer-safety exception
justifying the warrantless entry into his home does not
apply in this case because he was outside and separated
from his wife, there were no visible weapons, no one had
visible injuries, and there was nothing to suggest that there
were other people in the apartment that could have posed
a threat. In defendant’s view, given the circumstances,
there was no objectively reasonable basis to support that
entry was necessary to prevent physical harm to the offi-
cers. Defendant contends, among other arguments, that law
enforcement did not have consent to enter his home because,
in his view, there was no evidence that either defendant or
S consented to the entry, and defendant was not required to
deny consent. Moreover, defendant asserts that S’s consent
to the deputy’s entry is not an implicit finding of the trial
court because the court erroneously read Randolph as cre-
ating a per se domestic-violence exception that allows law
enforcement the authority to talk to both parties regardless
of consent. Defendant maintains that, because the court’s
reasoning was based on officer safety and not implied
consent, we would need to review under “the right for the
wrong reasons” principle as articulated in Outdoor Media
Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20
P3d 180 (2001), if we were to affirm on that basis.
Further, defendant contends that the evidence
discovered as a result of Hazel’s entry could not have been
discovered by other lawful means and that the error was
harmful. Defendant argues that the photographs obtained
corroborated and bolstered S’s testimony, increasing her
credibility. Defendant also asserts that the responding dep-
uties’ testimony about S’s statements at the scene provided
the most contemporaneous account of the incident and that
Cite as 335 Or App 576 (2024) 581
closeness in time likely rendered the deputies more reliable
in the eyes of the jury.
For its part, the state concedes on appeal that the
officer-safety exception did not apply because there was no
immediate threat of serious physical injury. The state fur-
ther does not argue on appeal that there were exigent cir-
cumstances. The state contends that the trial court correctly
reasoned that the deputy reasonably entered defendant’s
apartment to discuss a domestic-violence complaint with a
presumed victim and that the victim implicitly consented to
the entry. The state asserts that Randolph did not preclude
the deputy’s entry into the home because defendant did not
explicitly object. In the alternative, if defendant did expressly
object to the entry, the state argues that Randolph autho-
rized the deputy to enter the home to protect S from domestic
violence by determining whether violence, or the threat of
violence, had just occurred, even if a co-tenant objected.
As an initial matter, we agree with the parties’
arguments that the officer-safety exception did not apply
in this case and that there were not exigent circumstances
to justify the warrantless entry into the home. Here, law
enforcement was not responding to an immediate threat of
physical harm or attending to anyone in need of emergency
aid. Defendant was outside the apartment, and there is no
information in the record to suggest that there were other
people inside that could have posed a threat to law enforce-
ment or others. Thus, to the extent that the trial court
denied defendant’s suppression motion based on its conclu-
sion that the warrantless entry was justified by the officer-
safety exception, the trial court erred.
However, given the court’s ruling and factual find-
ings, we also understand the trial court to have relied on S’s
implied consent when it denied the motion to suppress. We
turn to that issue and ultimately conclude that the court’s
factual finding on consent, which is supported by evidence
in the record, is dispositive.
Under the Fourth Amendment, a warrantless
search is per se unreasonable unless it fits into an estab-
lished exception to the warrant requirement. California v.
582 State v. Salah
Acevedo, 500 US 565, 580, 111 S Ct 1982, 114 L Ed 2d 619(1991). One such exception occurs when an individual freely
and voluntarily consents to the search. United States v.
Rodriguez, 834 F3d 937, 940 (8th Cir 2016). Consent may be
express or implied. United States v. Lakoskey, 462 F3d 965,
973 (8th Cir 2006).
Implied consent may be inferred from “words, ges-
tures, or other conduct,” and the ultimate inquiry is not
whether a person subjectively consented, but whether a rea-
sonable officer would believe consent was given. Rodriguez,
834 F3d at 940-41 (concluding that there was implied con-
sent where the defendant did not affirmatively consent but
“did not try to close the front door, or protest when [officers]
followed him into the house”) (quoting United States v. Pena-
Ponce, 588 F3d 579, 584 (8th Cir 2009)); see also United
States v. Risner, 593 F3d 692, 695 (7th Cir 2010) (conclud-
ing that there was implied consent where the victim did not
protest entry into residence and the “weather and common
sense compelled them to move inside to take [the victim’s]
statement”); United States v. Griffin, 530 F2d 739, 743 (7th
Cir 1976) (concluding that despite the defendant’s silence
in response to police questions about a possible burglary
at his residence, his conduct in stepping back and leaving
the door open was consent to enter the home); Robbins v.
MacKenzie, 364 F2d 45, 48 (1st Cir 1966) (holding that an
officer who identified himself and his purpose from the other
side of a closed door had “every reason to assume that the
act of unlocking and opening the door, without more, is a
consent to talk, and that the walking back into the room is
an implied invitation to conduct the talking inside”).
When two or more people share “common author-
ity” over a place, any one of them may generally consent
to a search. United States v. Matlock, 415 US 164, 171, 94
S Ct 988, 39 L Ed 2d 242 (1974). There is a “narrow excep-
tion” to the common authority rule: when two people share
common authority over a premise and both are present, if
one expressly objects to the search and the other consents,
the objection will prevail. Randolph, 547 US at 106. If the
search proceeds, anything found cannot be used against
the person who objected. See id. (concluding that when a
Cite as 335 Or App 576 (2024) 583
physically present co-occupant objected, the warrantless
search was invalid as to the person who objected). However,
this narrow exception applies only if the objection is express.
See, e.g., United States v. Moore, 770 F3d 809, 813 (9th Cir
2014) (requiring the co-occupant’s express and unequivocal
refusal); United States v. Watkins, 760 F3d 1271, 1283 (11th
Cir 2014) (requiring an express refusal); United States v.
Delancy, 502 F3d 1297, 1307-08 & n 7 (11th Cir 2007) (deter-
mining that the defendant who did not object was not cov-
ered by Randolph even though the defendant possibly con-
sidered objection futile).
In this case, there is evidence to support the trial
court’s implicit finding that S consented to the search. That
is, under the totality of the circumstances, Hazel’s conduct
before and after entering the home permits an implicit find-
ing that Hazel entered because S impliedly consented to the
entry. When Hazel arrived, S was standing a few steps back
in the doorway with the door wide open. Further, the officers
could see that S was visibly upset and could hear S yelling
in a language they did not understand. Hazel went into the
residence and closed the door in response to that yelling.
From the circumstances presented, the trial court permissi-
bly could find that a reasonable officer would conclude that
walking into the home and closing the door was the quickest
way to separate the parties, and that S understood that law
enforcement was there to investigate based on the 9-1-1 call
and may want to talk with her.
Importantly, at no point did S try to close the door or
protest when Hazel entered. Instead, S walked further into the
house and later talked to Hazel with the help of an interpreter
who was on the phone. When Hazel called the interpreter, S
was cooperative and relayed her version of what happened.
Although engaging in a conversation with law enforcement
after entry into the home does not always indicate consent, in
the specific circumstances of this case, we conclude that the
evidence of S’s behavior was consistent with someone who was
consenting rather than someone who was withholding consent
or objecting to a deputy’s entry into the home.
Thus, because the evidence in the record supports
that a reasonable officer would have understood that S’s
584 State v. Salah
acts and gestures amounted to consent to enter, we conclude
that there is sufficient evidence to support the trial court’s
implicit finding of consent, which was consistent with its
overall conclusions that the entry was lawful and that “it
was reasonable for the officers to go in, separate the parties
and close the door.”
Given S’s consent, we further conclude that Randolph
does not preclude the search. In so concluding, we rely on
the trial court’s factual finding, which is not challenged on
appeal, that defendant did not expressly deny consent. The
court noted that the body camera footage did not show that
defendant told the officers that he did not want them to go
into his home, and there was never a request for the officers
to leave the premises. Because the narrow exception under
Randolph requires an express objection, it does not apply in
the circumstances of this case.1 Further, given that there is
sufficient evidence to support the conclusion that the entry
was lawful because Hazel had S’s implied consent to enter,
we need not analyze this case under the right for the wrong
reasons principle, nor do we reach the state’s argument that
entry was lawful under Randolph or the discussion of a
potential domestic-violence exception.
In sum, we conclude that, because the trial court
relied on S providing implied consent for entry into the
home, the court did not err in denying the motion to sup-
press. Accordingly, we reject defendant’s first assignment of
error.
On defendant’s second through fifth assignments of
error, he argues that the trial court erred when it imposed
special conditions of probation because those conditions
were not announced in open court and the conditions did
not reasonably relate to defendant’s crime of conviction.
There were four special conditions: defendant was required
to (1) “complete an approved Domestic Violence Intervention
Program;” (2) attend a “Survivor’s Impact Panel”; (3) obtain
1
To the extent that defendant argues in his reply brief that the trial court
misread Randolph and applied a per se rule for domestic violence cases, we sum-
marily reject that argument. We understand the trial court’s ruling to note that
it reviewed Randolph before making its determination and ultimately relied on S
providing implied consent for entry into the home when it denied the suppression
motion.
Cite as 335 Or App 576 (2024) 585
written permission from his supervising officer before partic-
ipating in “couples’ or family counseling”; and (4) “[d]isclose
any potential intimate sexual relationships (prior to sex-
ual intimacy)” to his supervising officer and “consent to the
supervising officer communicating with others about the
defendants domestic violence history.”
The state concedes that the trial court erred by
imposing the special conditions of probation because they
were not announced in open court. We agree, and we accept
the state’s concession. A criminal defendant has the right
to have his, her, or their sentence announced in open court,
and a trial court errs if it does not do so. State v. Priester, 325
Or App 574, 581, 530 P3d 118, rev den, 371 Or 332 (2023).
Because the four challenged conditions were not
announced in open court, we remand for resentencing. We
decline to address defendant’s remaining arguments as to
those conditions because any such arguments can be pre-
sented to the trial court in the first instance on remand.
See State v. Reed-Hack, 313 Or App 728, 729-30, 495 P3d
196, rev den, 369 Or 69 (2021) (declining to reach the defen-
dant’s argument regarding a condition of probation because
“it may be raised on remand for the trial court to consider in
the first instance”).
Remanded for resentencing; otherwise affirmed.