246 P.3d 20
Or. Ct. App.2010Background
- Deputies arrive at defendant's residence to serve an arrest warrant on a woman believed to live there; house lights are off; deputy observes a car hood inside through a window and later determines it is stolen.
- Deputies later observe a VIN on the car parked in a side/offshoot area of the driveway; car is searched and deemed stolen.
- Defendant arrives, admits living there for ~3 weeks, and that the car is his; officer obtains consent to view car and then to search the home after warnings.
- Defendant initially declines consent to search the house; deputies threaten an application for a search warrant and obtain a signed consent to search form.
- Search of the house yields about 50 marijuana plants, marijuana-growing equipment, and cash; defendant is charged with unlawful manufacture, delivery, and possession of marijuana.
- Trial court denies suppression, finding voluntary consent; on appeal, issues concern whether the initial car search violated curtilage and whether taint from that illegality affected consent to search
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brown's entry onto defendant's curtilage was unlawful trespass | State | Olinger | Remand for factual resolution; issue undecided on record |
| Whether observation of the VIN from the side of the house was a valid non-search under implied consent | State | Olinger | Remand; imputed consent to enter curtilage not shown; entry was presumptively trespass |
| Whether taint from the illegal car search affected defendant's consent to search the house | State | Olinger | Remand to determine nexus and attenuation |
| Whether defendant's consent to search the house was voluntary independent of any illegality | State | Olinger | Remand to resolve totality-of-circumstances and nexus facts |
| Remedy if taint established | State | Olinger | Vacate and remand; if taint proven, suppression and new trial; otherwise reentry of conviction |
Key Cases Cited
- State v. Foster, 347 Or. 1 (2009) (non-search observation from lawful vantage point not a search under Article I, section 9)
- State v. Ohling, 70 Or.App. 249 (1984) (implied consent to approach front door; driveway entry allowed)
- City of Eugene v. Silva, 198 Or.App. 101 (2005) (side-area entry presumptively trespass absent implied invitation)
- State v. Somfleth, 168 Or.App. 414 (2000) (presumption of implied consent to enter curtilage narrowed by location)
- State v. Pierce, 226 Or.App. 336 (2009) (driveway offshoots; location matters for consent to enter)
- State v. Glines, 134 Or.App. 21 (1995) (recognizes evidentiary implications of inviting entry into property)
- State v. Cardell, 180 Or.App. 104 (2002) (front-yard implied consent to contact resident; limits on curtilage consent)