STATE OF OREGON, Plаintiff-Respondent, v. ANDREW LEE PIERCE, Defendant-Appellant.
Jackson County Circuit Court 053579FE; A131475
Jackson County Circuit Court
March 4, 2009
226 Or App 336 | 203 P3d 343
Argued and submitted May 22, 2008, at Lakeview High School, Lakeview, reversed and remanded March 4, 2009
Before Brewer, Chief Judge, Edmonds, Landau, Haselton, Armstrong, Wollheim, Schuman, Ortega, Rosenblum, and Sercombe, Judges.
HASELTON, J.
Wollheim, J., dissenting.
Defendant appeals from his conviction for possession of a controlled substance (marijuana),
The material facts are, for purposes of our review, uncontroverted. At about 1:00 a.m. on May 2, 2005, Medford Police Officer Vollrath arrived at the home of defendant‘s friend, Hammes, in response to a complaint about a noise disturbance. Vollrath parked his police car on the street in front of Hammes‘s house and, when he got out, he could hear people yelling and screaming behind the house. Vollrath believed that the crime of disorderly conduct was being committed.
A walkway ran from the sidewalk in front of Hammes‘s house to the front door of the house. However, Vollrath did not go to the front door. Instead, bypassing the front door, Vollrath walked up a 30-foot long driveway, along the side of Hammes‘s house, to a point just beyond the rear side corner of the house, where a chain link fence and gate ran between the corner of the house and the garage located at the end of the driveway. The configuration of Hammes‘s property is generally illustrated by the following diagram:
From that vantage point, Vollrath was able to look through the fence into the backyard. Although it was dark and rainy, Vollrath was able to see into the yard because he had a flashlight and because there was a light near the top of the garage. Vollrath saw defendant and Hammes sitting on a stoop in the backyard, and he identified himself as a police officer. Vollrath then saw defendant pull marijuana plants from two cups and attempt to destroy them by submerging them in a mud puddle in Hammes‘s backyard.
Vollrath and Medford Police Officer Kirkpatrick, who had also arrived, then arrested defendant and advised him of his Miranda rights. Kirkpatrick subsequently obtained defendant‘s consent to search his home, where police found another marijuana plant and other evidence of marijuana cultivation. Defendant admitted that he had grown all three рlants.
Defendant moved to suppress all of the evidence, arguing that it arose from an unlawful search of Hammes‘s backyard.2 In particular, defendant contended that Vollrath‘s entry into the side and rear areas of the curtilage of Hammes‘s house effected a search for purposes of
The state offered two alternative responses. First, the state asserted that Vollrath‘s entry into the side and rear areas of the residential curtilage was implicitly invited and, thus, was not a “search” for purposes of
“I do believe [the officers] had probable cause to believe the crimе of disorderly conduct was being committed. I think it was pretty loud, when you take into consideration the time and where they—that the officers were able to hear it, as he exited his vehicle and characterized it as yelling and screaming. And I do feel that the officer, under those circumstances. Under normal circumstances I would agree that—probably not justified in going to the rear of the house and looking in the backyard, from the rear of the driveway and looking into the backyard, but under these circumstances, I do find that it was reasonable and justified for the officers to do so. And I am not exact—it is interesting the characterization of exigent circumstances, but I don‘t know how to deal with that, but I am just making a finding that what they did was reasonable, and they were justified in doing it, and justified in being where they were.”3
Following the denial of suppression, defendant entered a conditional plea, pursuant to
On appeal, defendant essentially reiterates his position before the trial court. However, the state no longer contends that Vollrath‘s invasion of the side and rear areas of the residential curtilage and concomitant observations did not constitute a warrantless search for purposes of
“in light of the layout of the property at issue [as depicted in the photographic exhibits], and pursuant to State v. Somfleth, 168 Or App 414, 8 P3d 221 (2000), Officer Vollrath conducted a search when he walked up the driveway of the house.”
Rather, the state argues solely that Vollrath‘s warrantless invasion and observations were justified by probable cause
The state contends that Vollrath had probable cause to believe that the crime of disorderly conduct was being committed in the backyard and that there was a constitutionally cognizable exigency either because Vollrath needed to terminate a continuing сrime of disorderly conduct or because Vollrath believed that the noise from the backyard could indicate that people were “having a disagreement” that presented the danger of someone being injured. In the latter regard, the state invokes the “community caretaking” statute,
In State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991), the court generally described the scope of the “exigent circumstance” exception: “An exigent circumstance is a situation that requires the police to act swiftly to prevent danger to life or serious damage to property, or to forestall a suspect‘s escape or the destruction of evidence.” Here, as defendant asserts, the crime of disorderly conduct—based merely on people loudly “having an argument” in the middle of the night—did not require “the police to act swiftly to prevent danger to life or serious damage to property, or to forestall a suspect‘s escape or the destruction of evidence.” Id. To be sure, defendant‘s conduct may have irritated Hammes‘s neighbors and disturbed their sleep, but it did not rise to the level of a constitutionally cognizable “exigency.”
“(1) The police must have reasonable grounds to believe that there is an emergency and an immediate need for their assistance for the protection of life.
“(2) The emergency must be a true emergency—the officer‘s good faith belief alone is insufficient.
“(3) The search must not be primarily motivated by an intent to arrest or to seize evidence.
“(4) The officer must reasonably suspect that the area or place to be searched is associated with the emergency and that, by making a warrantless entry, the officer will discover something that will alleviate the emergency.”
(Footnote omitted.)
Again, the record here is devoid of any evidence that either of the officers responding to the noise complaint had a good faith belief—let alone reasonable grounds to believe—that the noise from the residential backyard indicated “an immediate need for their assistance for the protection of life.” Id. Indeed, the testimony of both Vollrath and the other officer confirms that they were investigating the crime of disorderly conduct—and not that they were attempting to render emergency aid. See generally State v. Salisbury, 223 Or App 516, 524-25, 196 P3d 1017 (2008) (officers heard yelling and screaming within the curtilage of an apartment consistent with a “domestic quarrel,” but that did not indicate that violence was occurring and did not justify entry under “emergency aid doctrine“).
In sum, regardless of the existence of probable cause, Vollrath‘s warrantless invasion of the side and rear areas of the residential curtilage was not justified by any exigency.
The dissent contends, however, that the trial court‘s ruling should nevertheless be affirmed on an alternative ground, viz., that Vollrath‘s warrantless invasion and consequent observations did not constitute a “search” for purposes of
A search, for purposes of
Approaches to points on the рroperty other than a front door, however, are generally not regarded as being approaches to which the occupant has implicitly consented. State v. Ohling, 70 Or App 249, 688 P2d 1384, rev den, 298 Or 334 (1984), is exemplary. In Ohling, officers went to the front door of the defendant‘s home to serve a warrant to search a nearby area for evidence of marijuana cultivation. When the officers knocked, they could hear a stereo playing, but no one answered. Id. at 251-52. The officers then “went to the back of the house to see if they could find anyone” but “found the marijuana plants instead.” Id. at 252. We reversed the defendant‘s consequent conviction for manufacture of a controlled substance, concluding that the officers’ conduct unlawfully invaded the curtilage of the defendant‘s home:
“Neither the warrant nor their status as peace officers gave them any greater right to intrude onto defendant‘s property than any other stranger would have. Going to the front door and knocking was not a trespass. Drivers who run out of gas, Girl Scouts selling cookies, and political candidates all go to front doors of residences on a more or less regular basis. Doing so is so common in this society that, unless there are posted warnings, a fence, a moat filled with crocodiles, or other evidence of a desire to exclude casual visitors, the person living in the house has impliedly consented to the intrusion. Going to the back of the house is a different matter. Such an action is both less common and less acceptable in our society. There is no implied consent for a stranger to do so. ‘[W]e do not place things of a private nature on our front porches that we may very well entrust to the seclusion of a backyard, patio or deck.’ The facts of this case do not show either an express or an implied consent for strangers to go to the back of defendant‘s house.”
Id. at 253 (citations omitted; emphasis added; brackets in Ohling); see also State v. Glines, 134 Or App 21, 23-25, 894 P2d 516, rev den, 321 Or 512 (1995) (concluding that police had not unlawfully invaded curtilage where the officers went to the defendant‘s home but, instead of going to the front door, went to a side entry that was visible from the public sidewalk, had a doorbell, and was adjacent to a common driveway that the defendant shared with his next-door neighbor).
In State v. Somfleth, 168 Or App 414, 424-25, 8 P3d 221 (2000), after reviewing Ohling and Glines at length, we reiterated and amplified the controlling inquiry:
“Our cases have treated location as, in effect, giving rise to rebuttable ‘presumptions.’ The fundamental principle, as emphasized in Ohling, is that intrusions onto residential curtilage are deemed to be trespasses unless the entry is ‘privileged or [has] defendant‘s express or implied consent.’ 70 Or App at 252. Nevertheless, given prevailing social norms, the homeowner is presumed to have implicitly consented to entry into the front yard to approach the front door. Conversely, also given prevailing norms, such a presumption of implied consent to enter is not ascribed to other areas of the curtilage. See Ohling, 70 Or App at 253 (‘Going to the back of the house is a different matter.‘). Rather, entry onto those areas is presumptively a trespass. Id.
“Nevertheless, that presumptive treatment is not necessarily conclusive: A homeowner can abrogate the presumption of implied consent to approach the front door by undertaking sufficient steps to exclude casual visitors from the front yard. See Ohling, 70 Or App at 253. Conversely, the presumption that other invasions of the curtilage are trespasses can be overcome by evidence that the homeowner has sufficiently implicitly or explicitly invited entry. Thus, in Glines, the doorbell on the side entrance, coupled with the facts that that entrance was visible from the public sidewalk and was directly accessible from the common driveway, so strongly evinced an invitation to the public to use that entry—and the defendant‘s concomitant expectation that that entrance would be so used—that the officers’ entry was not a trespass.
“Applying that analysis here, the issue reduces to whether the state overcame the presumption that the officers’ entry through the open back gate was a trespass. In particular, did other circumstances so evince implied consent to enter the backyard as to overcome that adverse presumption?”
(Emphasis added; brackets in Somfleth.) The state, as proponent of the evidence, has the burden of proving an implicit invitation to public entry sufficient to overcome the presumption of trespass.
The dissent at least implicitly acknowledges that construct, see 226 Or App at 352-53 (Wollheim, J., dissenting), and concludes that the combination of two circumstances (although neither alone would be sufficient) evinced the requisite “implied invitation” here. First, “the driveway provided an unobstructed pathway to the rear of the house.” Id. at 357 (Wollheim, J., dissenting). Second, defendant and Hammes were making unreasonable noise, engaging in disorderly conduct, in the backyard of the house at 1:00 a.m. Id. at 356-57 (Wollheim, J., dissenting).
With respect to the “layout” of the property, it is undisputed that, to reach the point from which he made his observations, Vollrath had to walk up the driveway (which was not a shared driveway, as in Glines), bypassing the front door of the residence and traversing the entire width or side of the house to reach the gate between the side of the house
Thus, the purported invitation to enter depends on the proposition that the homeowner, Hammes, by engaging in disorderly conduct in his backyard—or, presumably, by permitting defendant to engage in such conduct—implicitly invited the police to enter. In that regard, the dissent posits that it would not “offend social norms of behavior” in such circumstances for a member of the public to walk up the driveway alongside the home to ask defendant to quiet down and, thus, that defendant manifested, through his conduct, an implied invitation оf public entry. 226 Or App at 357-58 (Wollheim, J., dissenting).
With respect, the upshot of the dissent‘s analysis is that, if a person engages in sufficiently “publicly” obnoxious behavior within the residential curtilage—at any time of the day or night—that conduct effectively waives constitutional protections against warrantless trespassory invasions. The urban homeowner, sitting on the patio, listening to a ball game with the volume turned up so loud as to disturb his neighbors’ Sunday afternoon peace, the suburban homeowner doing work in her backyard with exceedingly and irritatingly noisy power tools, the kids in the would-be band “practicing” in the backyard at 8:00 p.m. on a summer Saturday evening—all (in the dissent‘s view) have invited entry by strangers, including warrantless entry by police officers.
Such an approach, unsupported by Oregon precedent, would qualitatively subvert bedrock constitutional principles that rigorously protect the residential curtilage
At base, the dissent misapprehends the meaning and function of implied “invitation” as a qualification of those fundamental constitutional protections. As consistently employed in our case law, “invitation” connotes a manifestation, either by custom or conduct, of the property owner‘s anticipatory consent to entry by members of the public to that point of the curtilage. See, e.g., Somfleth, 168 Or App at 425 (framing dispositive issue: “[D]id other circumstances so evince implied consent to enter the backyard as to overcome [the] presumption” that invasion of the backyard is a trespass?); Ohling, 70 Or App at 252 (officers’ entry “was a trespass unless it was privileged or had [the] defendant‘s express or implied consent“).
Thus, “invitation” is a function of consent: Would a member of the public reasonably understand, in the totality of the circumstances, that the property owner has consented, by custom or conduct, to the entry onto the curtilage to that point? Or, more particularly here, would a member of the public reasonably understand that the property owner has so
The dissent erroneously conflates consent—the constitutional prerequisite to entry—with notions of reasonable foreseeability.7 If a homeowner is playing music (or listening to a ball game, or using power tools, or yelling) too loudly in the backyard, it may be reasonably foreseeable that irate neighbors may enter to confront the homeowner. But the homeowner has not, even implicitly, manifested consent to
The dissent maintains, nevertheless, that the entry was “invited” by reference to “social and legal norms of behavior.” Except in rare instances of communal behavior so common and well established as to be akin to custom—e.g., that a property owner has, in the absence of manifestations of exclusion, presumptively consented to strangers going to the front door—judicial reference to such “norms” is illusory. Are they judicially noticeable? Or do we “know them when we see them“? In all events, even if social and legal norms can be reliably identified, they are not conclusive of the protections afforded under
Certainly, the dissent‘s premise that, under “social norms,” a person is privileged to confront a disruptive neighbor, in the neighbor‘s backyard, in the middle of the night is hardly self-evident. Rather, many, perhaps most, Oregonians might (a) telephone the neighbor; or (b) go to the neighbor‘s front door and, failing a response, go home; or (c) call the police, who would go to the neighbor‘s front door, knock loudly, and, failing a response, would either abandon their efforts or obtain a warrant or stop by for a chat with the neighbor the nеxt day. Cf. Ohling, 70 Or App at 253 (officers unlawfully went to backyard after receiving no response after knocking on front door: “Although the officers may have had good reason to believe that someone was at defendant‘s house, they had no more legal right to continue to look for that someone after their knocking proved unproductive than anyone else would have.“).8
Our point is not to engage the dissent in a ” ‘tis too; ‘tis not” debate over prevailing “norms” to be determined by a majority vote of this court en banc. Rather, it is precisely
Defendant did not, by engaging in disorderly conduct, impliedly consent to a warrantless trespassory invasion of the residential curtilage. The evidence sought to be suppressed was the unattenuated product of the concomitant unlawful search. See generally Hall, 339 Or 7. Consequently, the trial court erred in denying defendant‘s motion to suppress.
Reversed and remanded.
WOLLHEIM, J., dissenting.
If my neighbors make unreasonably loud noises in their backyard at 1:00 a.m.—noises so loud that they awaken me from my slumber—I probably would take the easiest and quickest way to their backyard: walk down their driveway and ask them to quiet down. Under the reasoning of the majority, my actions would be criminal because I would be committing criminal trespass in the second degree.1 By the majority‘s reasoning, my only lawful approach would be to go the front door of my neighbors’ home and knock on that door. But if my neighbors do not answer the door (because too much noise is coming from the backyard for them to hear me), I may not lawfully venture any further onto their property. And, when I call the police for assistance, the police are also legally limited to only approaching my neighbors’ front door. Without a warrant, the police may not venture any further. So the police tell me that they have to leave and I have to tough it out that night because the police cannot walk down the driveway where my neighbors are making unreasonable noise at 1:00 a.m. Thе majority claims that to decide otherwise would “subvert bedrock constitutional principles.” 226 Or App at 346. With respect, I disagree and therefore dissent.
“[N]ot everything thаt police officers see or hear one do in private quarters requires a search warrant. * * * Persons may conduct themselves in otherwise protected areas in such a way that their words or acts can plainly be seen or heard outside without any special effort. One would not, for instance, expect police to obtain a search warrant to charge violation of a noise ordinance against sounds emanating from private premises.”
Id. at 425-26 (quoting State v. Louis, 296 Or 57, 61, 672 P2d 708 (1983)) (emphasis added). Unless a police officer may lawfully enter the curtilage, however, a police officer would frequently be unable to determine whom to charge with such a noise violation.
Consistently with that proposition, this court has concluded that police intrusion onto private land significantly impairs an individual‘s interest in freedom from scrutiny if “a private individual would offend social and legal norms of behavior by engaging in the same kind of intrusion.” State v. Portrey, 134 Or App 460, 464, 896 P2d 7 (1995) (emphasis added). Here, as explained below, where there was probable cause to believe that defendant was engaged in disorderly conduct, the officer‘s entry onto the unobstructed driveway did not so offend those social and legal norms of behavior. Accordingly, I would conclude that the officer‘s entry onto the driveway was lawful because it did not significantly impair defendant‘s constitutional privacy interests.
An officer‘s intrusion onto the curtilage area surrounding a house significantly impairs a person‘s constitutional privacy interests only if a resident has not expressly or impliedly consented to that intrusion.4 State v. Ohling, 70 Or
The presumption of implied consent is limited to visitors who have a defined purpose—that is, “the intrusion to which * * * occupant[s] impliedly consent is limited to allowing a person to take reasonable steps to make contact.” State v. Premsingh, 154 Or App 682, 689, 962 P2d 732 (1998) (internal quotation marks omitted); see also Portrey, 134 Or App at 465 (the scope of the presumptive implied consent does not permit a visitor to pick up boots on the front porch for inspection); State v. Gabbard, 129 Or App 122, 128, 877 P2d 1217, rev den, 320 Or 131 (1994) (“An officer‘s right to go to the front door of a house is based on implied consent to allow visitors to take reasonable steps to make contact with the occupant.“). The motivation for making contact is not relevant; accordingly, a police officer may also seek to make contact with a resident even when motivated by criminal investigatory aims. State v. McIntyre/Pereira, 123 Or App 436, 442, 860 P2d 299 (1993), rev den, 318 Or 351 (1994).
The purpose to make contact with a resident is central to whether a presumption regarding implied consent is rebutted. For example, the public presumptively may еnter privately owned lands beyond the curtilage area surrounding a home. Dixson/Digby, 307 Or at 211. By posting a “no hunting” sign, a property owner rebuts that presumption as to members of the public having the purpose of hunting there
Similarly, this court has determined that “no trespassing” signs may be “inadequate to exclude visitors who would use the driveway to make contact with the occupants of the house.” Gabbard, 129 Or App at 128. We reasoned that a “reasonable visitor could have assumed that [a no ‘trespassing‘] sign was intended only to exclude those who might put the property to their own uses * * * [but not] to visitors who desired to contact the residents.” Id. (emphasis added).
Despite the presumption favoring front-door access, “location (‘front yard’ vs. ‘side yard’ vs. ‘backyard‘) is [only] one of a universe of circumstances to be considered in assessing whether a resident has implicitly consented to an invasion of the curtilage.” Somfleth, 168 Or App at 424. Where the universe of circumstances are objectively viewed as “manifesting [a resident‘s] expectation that casual visitors” would enter upon the portion of the curtilage away from the front door to contact a resident, the presumption of nonconsent is overcome. Id. at 427.
In accordance with that standard, this court concluded that a resident had impliedly consented to entries upon residential curtilage to approach a side door where the side door was adjacent to a driveway shared with a neighbor and was equipped with a doorbell visible from the street. Id. at 426-27 (discussing State v. Glines, 134 Or App 21, 894 P2d 516, rev den, 321 Or 512 (1995)). Likewise, where a resident walks toward officers and those officers respond by walking toward the resident but away from the front door of a house, the officers’ “decision to go toward [the resident], rather than to the front door, [i]s reasonable.” Gabbard, 129 Or App at 128-29. Consequently, where a resident manifests by displaying indicia such as doorbells or by conduct that a reasonable visitor may contact the resident on portions of the curtilage away from the front door, the resident impliedly consents to that contact.
Nonethelеss, the presumption of nonconsent to access the curtilage away from the front door of a home is not overcome simply because that portion of the curtilage is
However, individuals may “saсrifice[] any right of privacy by conducting themselves in such a way that their activities could be seen without any special effort.” State v. Rodriguez-Ganegar, 186 Or App 530, 538, 63 P3d 1225, rev den, 335 Or 578 (2003). Accordingly, although an officer typically does not have any right to peer through a crack in an otherwise obstructed window, State v. Fortmeyer/Palmer, 178 Or App 485, 491, 37 P3d 223 (2001), when an individual draws the attention of the public by making loud noises late at night, an officer‘s observations through cracks in the window blinds may be lawful, Rodriguez-Ganegar, 186 Or App at 537-38; see also State v. Castillo-Salgado, 186 Or App 605, 610-11, 64 P3d 1169, rev den, 336 Or 60 (2003) (an officer
In sum, where the evidence establishes that a resident‘s conduct manifests an objective expectation that members of the general public may intrude on the residential curtilage to contact a resident there, the resident has impliedly consented to such intrusions. Because such an intrusion by a private individual is lawful—and does not constitute trespass—an officer so intruding is also acting lawfully. Because any unaided observations by a police officer from a lawful vantage point does not diminish an individual‘s interest in freedom from scrutiny, an offiсer‘s observations under those circumstances do not constitute a search under
Here, the trial court concluded that, under normal circumstances, the location of the house and the placement of the driveway would not manifest an implied invitation for the officer to enter onto the driveway and walk down it to look into the backyard. However, defendant engaged in unreasonably loud and disruptive behaviors in the backyard of his friend‘s Medford home at 1:00 a.m., creating noises loud enough for the officers to have heard the noises from the street in front of the house. Specifically, the trial court found that those behaviors were sufficient to establish probable cause to believe that people were engaged in disorderly conduct. Accordingly, the trial court stated, “under these circumstances, I do find that it was reasonable and justified for the officers” to so enter the curtilage. (Emphasis added.) The trial court was correct.7
By itself, the accessibility of the rear portion of the driveway did not establish an implied invitation for members of the public to so enter the curtilage. But location is only “one of a universe of circumstances to be considered.” Somfleth, 168 Or App at 424.
The majority denigrates the significance, and misinterprets the statutory meaning, of defendant‘s disorderly conduct by equating it to mere ” ‘publicly’ obnoxious behavior.” 226 Or App at 346. If the offense of disorderly conduct criminalized mere publicly obnoxious behavior, this court would likely find such a statute to be constitutionally defective “because a significant amount of unreasonably obscene, unreasonably insulting, unreasonably shocking, unreasonаbly offensive, and unreasonably insensitive expression * * * is constitutionally protected.” State v. Rich, 218 Or App 642, 650, 180 P3d 744 (2008). However, the disorderly conduct statute,
Defendant‘s conduct invited entry not because defendant was publicly obnoxious but because the volume, duration, place, and time of defendant‘s conduct established probable cause that he created a risk of public inconvenience, annoyance, or alarm. By engaging in disorderly conduct, defendant sacrificed the presumption that intrusions on the curtilage at the rear of the house are generally intrusions upon a resident‘s liberty interests. He sacrificed that presumption because, under those circumstances, members of the public would not offend social norms of behavior by entering the residential curtilage to ask defendant to bring his conduct in compliance with the law. By manifesting that a reasonable visitor would seek to contact defendant there, defendant impliedly consented to that entry. Accordingly, members of the public so acting would not be committing criminal trespass. Where the driveway provided an unobstructed pathway to the rear of the house, the layout of the
As noted above, the Supreme Court would not ” ‘expect police to obtain a search warrant to charge violation of a noise ordinance against sounds emanating from private premises.’ ” Wacker, 317 Or at 426 (quoting Louis, 296 Or at 61). The majority‘s holding and reasoning would have the opposite practical effect, because under its interpretation of implied consent, a police officer would no longer be able to enter onto the curtilage to identify any particular defendant to charge. The principle of implied consent has never before been treated so narrowly.
The majority substantially narrows the construct of “implied consent” by declaring that invitation must convey “the property owner‘s anticipatory consent to entry by members of the public.” 226 Or App at 347 (emphasis in original). Claiming that ” ‘invitation’ is a function of consent,” the majority argues that implied consent cannot be found where “the homeowner does not want them—or any other stranger—there.” 226 Or App at 348-49 (emphasis added). Although the majority claims that this definition of implied consent has been “consistently employed in our case law,” 226 Or App at 347, I am unable to discern that definition from the cases cited by the majority.
The majority‘s proposed definition interjects for the first time a resident‘s subjective desire—whether the resident wants someone to enter—as an element of implied consent. This court has never before recognized such a subjective
Rather, this court has consistently treated that subjective component—akin to whether a person may not want magazine sаlespeople, political canvassers, or even Girls Scouts selling cookies to approach the front doors of their homes during dinnertime—as irrelevant to our analysis of implied consent. See Ohling, 70 Or App at 253 (describing similar contacts to which residents are presumed to have impliedly consented). Similarly, most residents do not want and would not have explicitly invited police officers to approach their front doors to serve arrest warrants on them. But those subjective desires play no role in determinations of implied consent. See also Wacker, 317 Or at 425 (“The privacy interests protected from unreasonable searches under
In addition, the majority erroneously narrows the definition of implied consent by rejecting most judicial references to social and legal norms. 226 Or App at 349-50. The majority claims that such references are “illusory,” “[e]xcept in rare instances of communal behavior so сommon and well established as to be akin to custom.” 226 Or App at 349. The majority proceeds to advise that unless the social acceptability of police intrusions are beyond “reasonable dispute“—that is, adopted by social “consensus“—those intrusions should not evince an implied consent to entry. 226 Or App at 350.
The majority makes those claims without legal citation. No Oregon case indicates that the notion of social consensus has ever even been considered—much less adopted—as the standard for ascertaining either the scope of implied consent, in particular, or the reach of
I agree with the majority‘s contention that notions of implied consent should not depend on defining prevailing norms “by a majority vote of this court en banc.” 226 Or App at 349. The question is not what a majority of the people—or a majority of judges on this court—believe is socially acceptable. The question is what a reasonable visitor would have understood. That is the fundamental principle upon which the presumption that a resident impliedly consents to front door access is based. Thаt is the fundamental principle that the legal precedent of this state has consistently abided by. And that is the fundamental principle that the majority departs from in its ruling in this case.
For those reasons, I respectfully dissent.
Edmonds, Ortega, and Sercombe, JJ., join in this dissent.
Notes
Furthermore, I do not claim that, within the present context, social and legal norms of behavior would be conclusively determinative of
” ‘The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the king of England may not enter; all his force dares not cross the threshold of the ruined tenement.’ ”
Dixson/Digby, 87 Or App at 7 (quoting the Earl of Chatham‘s statement as quoted in Thomas M. Cooley, A Treatise on the Constitutional Limitations 299 n 3 (1868)). The majority observes that, in Ohling, “[w]hen the officers knocked, they could hear a stereo playing.” 226 Or App at 343. The dissent in Ohling suggests that the stereo was playing inside the home. 70 Or App at 254 (Van Hoomissen, J., dissenting). No other evidence indicated that anyone was present in the backyard.
Neither Wacker nor Louis involved any physical invasion of the residential curtilage. Rather, Wacker involved the admissibility of observations of conduct within a car, and Louis addressed whether evidence obtained without a warrant from a vantage point outside the residential curtilage should be suppressed. See Wacker, 317 Or at 421 (officers, while stationed on second floor of a tavern, used a “starlight scope” to observe drug-related activity in a parked car in tavern‘s parking lot late at night); Louis, 296 Or at 59 (officer, while located in the defendant‘s neighbor‘s garage, took photographs, using a telephoto lens, of the defendant exposing himself in the living room of his residence).
Further, with respect to Louis‘s “noise ordinance” reference, the dissent‘s emphasized invocation of that language does not acknowledge its proper context:
“Nevertheless, not everything that police officers see or hear one do in private quarters requires a search warrant. The question is when observation (or listening) becomes a ‘search’ within the legal meaning of that term. Persons may conduct themselves in otherwise protected areas in such a way that their words or acts can plainly be seen or heard outside without any special effort. One would not, for instance, expect police to obtain a search warrant to charge violation of a noise ordinance against sounds emanating from private premises. An indecent exposure in a window opening to public view is not very different. This, we think, is all that can properly be meant by the phrase that a person‘s conduct within private premises may be such as to sacrifice the ‘expectation of privacy.’ ”
Louis, 296 Or at 61. Thus, in Louis, the “sound ordinance” hypothetical refers to the admissibility of evidence of a crime that was within the public‘s perception from outside the residential curtilage. Nothing in Louis—or Wacker—suggests that, based on such publicly perceptible information, the police can, in the absence of a legally sufficient exigency, invade the curtilage without a warrant to further investigate or to effect an arrest. Indeed, the implication of the dissent‘s reasoning in this case is that the police, without a warrant, could simply have entered Mr. Louis‘s home to arrest him because his criminal conduct, albeit within the residential curtilage, was publicly perceptible. The majority states that it is “unclear from the trial court‘s remarks whether the court denied suppression based on the state‘s probable cause rationale, the ‘no search/‘plain view’ ’ rationale, or both.” 226 Or App at 340 n 3. Regardless of any ambiguity in the trial court‘s remarks, the trial court was correct in reaching its ultimate conclusion that the officer‘s intrusion onto the curtilage was lawful.