DocketNumber: 13CR00221; A155292
Citation Numbers: 272 Or. App. 372, 356 P.3d 651
Judges: Duncan, Flynn, Lagesen
Filed Date: 7/22/2015
Status: Precedential
Modified Date: 9/9/2022
In this criminal case, defendant appeals the trial court’s judgment convicting him of one count of driving under the influence of intoxicants (DUII), ORS 813.010. On appeal, defendant assigns error to the trial court’s denial of his motion to suppress evidence that a sheriffs deputy obtained after following defendant onto farm property owned by defendant’s father. Defendant argues that the deputy’s entry onto the property violated Article I, section 9, of the Oregon Constitution.
We review the trial court’s denial of defendant’s motion to suppress for errors of law, and we are bound by the trial court’s express and implicit findings of fact, provided there is constitutionally sufficient evidence in the record to support the findings. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993); State v. Tegland, 269 Or App 1, 3, 344 P3d 63 (2015). Stated in accordance with that standard, the relevant facts are as follows.
On the night of the incident for which defendant was charged, a sheriffs deputy was on patrol in a rural area where there had been three reported burglaries in the preceding weeks. The burglaries involved, among other things, the theft of gas, tools, and batteries from vehicles. At approximately 11:00 p.m., the deputy saw a truck, which defendant was driving, and began following it. Neither the truck nor defendant was associated with the reported burglaries. The deputy testified that he “probably would have followed any vehicle * * * for an amount of time.”
Defendant parked near a gas pump which was directly underneath a large security light. The deputy parked his patrol car behind defendant’s truck but did not block the truck. Defendant got out of his truck, and, immediately thereafter, the deputy got out of his patrol car. The deputy then saw defendant walk “down the driver’s side of the [truck], leaning against [it].” It appeared to the deputy that “there was some reason that [defendant] needed to use the truck for balance — maybe to correct his balance.”
The deputy asked why defendant was on the farm property, and defendant answered that it was his family’s farm and he was there to get gas. The deputy continued his conversation with defendant and noticed that defendant smelled of alcohol and his speech was slurred. Based on those observations, the deputy began investigating defendant for DUII.
Defendant’s father is the current owner of the farm property, and his family has owned the property for approximately 20 years. At the hearing on defendant’s motion to suppress, defendant’s father testified that, in addition to the “No Trespassing” sign on the barn, there are other “No Trespassing” signs posted throughout the property, including “one at the driveway entrance.” Defendant’s father also testified that the family had posted the signs and fenced the property in order to exclude the public. One reason the family posted the signs was because there is a lake on the property and they wanted to restrict access to the lake for safety and insurance reasons. Defendant’s father also noted that there is a culvert around the front of the property.
At the close of the hearing, defendant argued that the deputy did not have reasonable suspicion to believe that defendant was engaged in criminal activity; he contended that, “[a] 11 [the deputy] knows is there’s a car out in the country, it’s late at night, pulls onto a piece of property, posted No Trespassing, and decides to enter and inquire.” Defendant further argued that the deputy could not enter the property unless he did so pursuant to a warrant or an exception to the warrant requirement because the property was “posted with an intent to exclude the public.”
For its part, the state argued that the deputy’s entry onto the farm property did not constitute an “invasion of privacy.” The state also argued that the deputy’s encounter with defendant did not become a stop until the deputy had reasonable suspicion to believe that defendant had committed DUII.
The trial court denied defendant’s motion to suppress, ruling that the deputy’s entry onto the farm property was lawful because the deputy had “some reasonable suspicion” to justify contacting defendant “[e]ven on private property.” The trial court explained:
“I think the trespass signs are * * * kind of a red herring. *** I’m also not completely sure that the No Trespass signs, under these circumstances, then, would exclude a law enforcement officer, who has this reason to go onto the property. It’s not probable cause. In fact, one might actually argue he has a duty to go onto the property, to at least look into this.”
The trial court further ruled that the deputy’s actions on the farm property did not constitute a stop until the deputy had developed reasonable suspicion to initiate a DUII investigation.
On appeal, defendant renews his argument that, by entering the farm property, the deputy violated Article I, section 9.
The state argues that the deputy did not violate Article I, section 9, by entering the farm property. But the state does not defend the trial court’s reasoning. Instead, the state asks us to affirm the trial court’s ruling for an alternative reason. See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001) (an appellate court may affirm for an alternative reason when (1) the evidentiary record is sufficient to support the alternative basis, (2) the alternative basis is legally correct, and (3) the reasons for the trial court’s decision are either erroneous or unnecessary in light of the alternative basis for affirmance).
The state recognizes that, contrary to the trial court’s reasoning, the “No Trespassing” signs were not a “red herring.” If a person manifests an intention to exclude the public from private property outside the curtilage of a residence by, for example, posting signs or erecting fences, a law enforcement officer cannot enter the property based solely
“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.”
Id. at 211-12. In this case, if defendant’s family manifested an intention to exclude the public from the farm property, then the deputy could not enter the property unless he did so pursuant to a warrant or an exception to the warrant requirement. Thus, contrary to the trial court’s reasoning, the “No Trespassing” signs were not a “red herring” because, if the signs adequately manifested an intent to exclude the public, then the deputy could not enter the property based solely on “some reasonable suspicion” of criminal activity.
Because the trial court’s reasoning was erroneous, we turn to the state’s proffered alternative basis for affirmance, that defendant did not have a protected privacy interest in the farm property because his family had not taken sufficient steps to exclude the public from the farm property.
Whether a property owner or occupant has manifested an intention to exclude the public from property outside the curtilage of a residence depends on the particular actions that the owner or occupant has taken. See State v. McIntyre/Pereira, 123 Or App 436, 440, 860 P2d 299 (1993), rev den, 318 Or 351 (1994) (“[C]ourts must consider all surrounding circumstances *** to determine the residents’ intent.”). As mentioned, a person can “preserve
For example, in Roper, we held that the defendant had excluded the public from his property, including his driveway, by fencing the property and posting “No Trespassing” signs on, and adjacent to, a gate across the driveway to the property. 254 Or App at 201-02. Based on that holding, we further held that law enforcement officers who drove down the property’s driveway violated the defendant’s Article I, section 9, rights, even though the gate to the driveway was open. Id.
Reversed and remanded.
Article I, section 9 provides:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
In his brief, defendant mentions the Fourth Amendment to the United States Constitution, but, because his arguments are based solely on Article I, section 9, we consider only whether Article I, section 9, requires suppression. See State v. Kinkade, 247 Or App 595, 599 n 1, 270 P3d 371 (2012) (declining to address Fourth Amendment claim where the defendant made a “passing reference in his opening brief to the Fourth Amendment” but did not develop a “separate argument under the federal constitution”).
In the trial court, the state did not dispute that defendant had an interest in the farm property. As the state acknowledges in its brief, “it did not raise an issue regarding whether defendant lived with his family or had any interest in the property” and, as a result, the state “does not raise an issue regarding defendant’s interest in the property” on appeal.
See also State ex rel Juv. Dept. v. Reeves, 163 Or App 497, 499, 503-04, 988 P2d 433 (1999) (property owner had a protected privacy interest in his property, including his driveway, where he had fenced the property and posted multiple “Keep Out - No Trespassing” signs on the fence and a “Private Road” sign adjacent to the property’s driveway); State v. Poulos, 149 Or App 351, 353, 356-57, 942 P2d 901 (1997) (signs adjacent to property’s entrance and along its driveway sufficiently expressed an intent to exclude the public from entering the driveway).
See also State v. Cam, 255 Or App 1, 6, 296 P3d 578, modified on recons, 256 Or App 146, 300 P3d 208, rev den, 354 Or 148 (2013) (officers did not violate