State v. McKee
356 P.3d 651
Or. Ct. App.2015Background
- Deputy followed defendant’s truck at ~11:00 p.m. in a rural area with recent burglaries; defendant turned onto his family’s farm property and parked by a gas pump under a security light.
- Farm was fenced and had multiple “No Trespassing” signs (one on a barn, father testified one at the driveway); signs posted to exclude public access (e.g., to protect lake).
- Deputy entered the property (driveways ungated), parked behind defendant, asked why he was there, observed signs of intoxication, and began a DUII investigation.
- Defendant moved to suppress evidence obtained after the deputy entered the property, arguing the deputy’s entry violated Article I, § 9 of the Oregon Constitution because the family manifested an intent to exclude the public.
- Trial court denied the motion, reasoning the deputy had “some reasonable suspicion” and possibly a duty to check the property; concluded the encounter was not a stop until reasonable suspicion of DUII developed.
- On appeal, the state conceded the trial court’s reasoning was flawed and argued alternatively that defendant lacked a protected privacy interest in the property; the appellate court found the trial court failed to make necessary factual findings and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deputy’s entry onto posted, fenced farm violated Article I, § 9 | State: deputy did not violate § 9 because defendant lacked a protected privacy interest in the property | Defendant: posting/fencing manifested intent to exclude public; deputy needed a warrant or exception | Remanded: trial court erred by not making factual findings whether a reasonable person would understand entry was prohibited; state bears burden to prove no protected interest |
| Burden of proof on suppression of evidence from warrantless entry | State: must prove legality of search | Defendant: suppression proper unless state proves exception or lack of protected interest | Held: state bears burden to prove validity of warrantless entry and may show either no protected interest or an applicable exception |
| Whether reasonable suspicion alone permits entry onto posted/fenced private land | State/trial court: reasonable suspicion justified entry | Defendant: reasonable suspicion insufficient when owner manifested intent to exclude public | Held: Reasonable suspicion alone cannot justify entry if owner manifested intent to exclude; entry requires warrant or exception |
| Whether trial court’s failure to find facts about signage/fencing was reversible | State: appellate court may affirm on alternative basis | Defendant: trial court needed findings about signs’ size, location, visibility | Held: Reversible error; factual findings about signage/fencing required and remand ordered |
Key Cases Cited
- State v. Dixson/Digby, 307 Or 195 (Ore. 1988) (manifestation of intent to exclude public—e.g., fences, signs—creates protected privacy interest under Article I, § 9)
- State v. Roper, 254 Or App 197 (Or. Ct. App. 2012) (sufficiency of signs/fencing depends on factual circumstances; signs adjacent to gate/fence can exclude public)
- State v. McIntyre/Pereira, 123 Or App 436 (Or. Ct. App. 1993) (courts must consider surrounding circumstances to determine intent to exclude)
- State v. Tucker, 330 Or 85 (Or. 2000) (prosecution bears burden to prove validity of a warrantless search)
- State v. Cruz-Renteria, 250 Or App 585 (Or. Ct. App. 2012) (conditional guilty plea tied to erroneous suppression ruling requires reversal and remand)