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,
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.”
The deputy followed defendant for approximately one mile and he did not see defendant commit any traffic violations. Defendant then turned onto a farm property. The deputy followed defendant onto the farm property “simply to ask why [defendant was] there.” The property was fenced, but there were two driveways to the property from the road on which defendant and the deputy had been driving, and the driveways were not gated. There were barns on the property, and there was a “No Trespassing” sign on the side of the barn closest to the driveway that defendant and the deputy used.
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.
The deputy testified that he believes he has the authority to enter property on which “No Trespassing” signs are posted if he has a reasonable suspicion of criminal activity on the property. When asked why he followed defendant onto the farm property, the deputy testified that, “in fairness to the property owner, it — it’s almost my responsibility to go and check, because *** of the time of night, * * * the area that [the truck] came from and went to[.]”
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.
After the trial court denied his motion, defendant entered a conditional guilty plea, reserving his right to appeal the trial court’s ruling on the motion. See ORS 135.335(3) (a defendant may enter a conditional guilty plea to reserve the right to appeal an adverse determination on a pretrial motion).
On appeal, defendant renews his argument that, by entering the farm property, the deputy
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,
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 on reasonable suspicion; the officer’s entry must be justified by a warrant or an exception to the warrant requirement. State v. Dixson/Digby,
“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.
The state, as the proponent of the evidence that resulted from the deputy’s warrantless
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,
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.
In this case, defendant argued that his family had manifested an intention to exclude the public from the farm property by fencing it and posting “No Trespassing” signs, but the trial court, when analyzing the legality of the deputy’s entry onto the property, focused only on whether the deputy had reasonable suspicion that defendant was engaged in criminal activity. As a consequence, the trial court did not make factual findings regarding the characteristics of the property, including its fencing and signage. For example, it did not make any findings regarding the size and legibility of the “No Trespassing” sign on the barn, nor did it make any findings regarding the locations of the other signs that defendant’s father mentioned, including the one at “the driveway entrance.” Such factual findings — which are relevant to whether the state carried its burden of proving that an objectively reasonable member of the public would have believed that he or she could enter the private farm property without permission, as the deputy did — are for the trial court to make in the first instance. McIntyre,
Reversed and remanded.
Notes
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,
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,
See also State v. Cam,