Lead Opinion
Dеfendant appeals from his conviction for possession of a controlled substance (marijuana), former ORS 475.992 (2003), renumbered as ORS 475.840 (2005),
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 disordеrly 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 plants.
Defendant moved to suppress all of the evidence, arguing that it arose from an unlawful search of Hammes’s backyard.
The state offered two alternative responses. First, the stаte 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 Article I, section 9, so that his consequent observations of defendant were “plain view” observations from a lawful vantage point. Second, the state asserted that, even if Vollrath’s entry to that point did effect a warrantless search, that search was supported by probable cause with respect to disorderly conduct.
“I do believe [the officers] had probable cause to believe the crime 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 аnd 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 ORS 135.335(3), to possession of a controlled substance (marijuana).
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 Article I, section 9. Indeed, in its brief as respondent, the state concedes that,
“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 crime 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, ORS 133.033, which permits an officer to enter “upon the premises of аnother if it reasonably appears to be necessary” in order to “[p]revent serious harm to any person” or to “Mender aid to injured or ill persons[.]” ORS 133.033(2)(a)(A), (B). Neither of those justifications is availing.
In State v. Stevens,
“(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,
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 Article I, section 9. As noted, the state has expressly abandoned, and conceded, that matter on appeal. See
A search, for purposes of Article I, section 9, occurs when “a person’s privacy interests are invaded.” State v. Owens,
Approaches to points on the property other than a front door, however, are generally not regarded as being approaches to which the occupant has implicitly consented. State v. Ohling,
*344 “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,
In State v. Somfleth,
“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.
*345 “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
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 of public entry.
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 timе 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 thе 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,
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.
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 Article I, section 9. See State v. Campbell,
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 next day. Cf. Ohling,
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,
Reversed and remanded.
Notes
See generally Or Laws 2005, ch 708.
It is not disputed that defendant, who was a guest at Hammes’s house and was authorized to use Hammes’s garage, had a protected privacy interest in the curtilage of Hammes’s residence.
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. Thus, it is unclear whether the trial court endorsed the latter rationale — which is the sole basis of the dissent here and which, as explained immediately below, the state has explicitly disavowed as an alternative basis for affirmance.
The state no longer argues, as it did before the trial court, that the operative exigency was to prevent destruction of the marijuana plants. The state’s choice in that regard is well advised — given that Vollrath’s observation of the plants occurred after his entry onto the curtilage, that observation cannot be “bootstrapped” into providing the necessary justification for the entry itself.
As we have noted, ORS 133.033 does not provide a constitutional exception to the warrant requirement; rathеr, if the requirements of that statute are satisfied, .then it is possible that the “emergency aid doctrine” constitutional exception to the warrant requirement has also been satisfied. State v. Martin,
In Dixson/Digby, the Supreme Court generally endorsed this court’s plurality en banc conclusion that the protections of Article I, section 9, extended to certain lands outside the residential curtilage but reversed our application of those principles to the particular circumstances presented.
“ ‘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,
As support for its position, the dissent particularly invokes State v. Wacker,
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,
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,
In this case, of course, Vollrath did not even first attempt to knock on the front door. Indeed, he bypassed the front door and went directly to the rear of the residential curtilage.
Dissenting Opinion
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 secоnd degree.
Article I, section 9, of the Oregon Constitution protects an individual’s privacy interests against unreasonable
Article I, section 9 jurisprudence consistently relies on social and legal norms. Thus, a “seizure” under Article I, section 9, occurs only when a police “officer engages in conduct significantly beyond that accepted in ordinary social intercourse.” State v. Holmes,
“ ‘[N]ot everything that 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 seаrch warrant to charge violation of a noise ordinance against sounds emanating from private premises’ ”
Id. at 425-26 (quoting State v. Louis,
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,
An officer’s intrusion onto the curtilage area surrounding a house significantly impairs a person’s constitutionаl privacy interests only if a resident has not expressly or impliedly consented to that intrusion.
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,
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 enter privately owned lands beyond the curtilage area surrounding a home. Dixson/Digby,
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,
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,
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 equipрed with a doorbell visible from the street. Id. at 426-27 (discussing State v. Glines,
Nonetheless, 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 “sacrifice[ ] 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,
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 officer’s observations under those circumstances do not constitute a search under Article I, section 9.
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 оfficers 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.
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,
The majority denigrates the significance, and misinterprets the statutory meaning, of defendant’s disorderly conduct by equating it to mere “ ‘publicly5 obnoxious behavior.”
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,
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.”
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 salespeople, 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,
In addition, the majority erroneously narrows the definition of implied consent by rejecting most judicial references to social and legal norms.
The majority makes those claims without legal citation. No Oregon case indicаtes 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 Article I, section 9, in general. Within the context of implied consent, for example, the dissent in McIntyre /Pereira would have interpreted a tall
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.”
Article I, section 9, protects individual interests from unreasonable scrutiny. The Oregon Supreme Court interprets that interest by reference to social and legal norms of behavior. Governmental intrusions on curtilage to approach the front door of residential homes are permissible because social norms provide that private individuals may take reasonable steps to make contact with residents there. Similarly, when a resident manifests an expectation that private individuals may seek contact on portions of the residential curtilage away from the front door, and such contact would
For those reasons, I respectfully dissent.
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ORS 164.245(1) provides that “[a] person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully * * * in or upon premises.”
Article I, section 9, provides, in part, that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure!.]”
The majority claims that “social and legal norms * * * are not conclusive of the protections afforded under Article I, section 9.”
Furthermore, I do not claim that, within the present context, social and legal norms of behavior would he conclusively determinative of Article I, section 9, rights. My view is that social and legal norms determine the bounds of implied consent. Implied consent, in turn, sets a default rule that may be overcome by the explicit renunciation of any implied consent.
Defendant was a guest, and not a resident, at the home. A guest may generally assert the constitutional privacy interests held by the host, although the guest’s privacy interests are not as extensive as the privacy interests of the host. State v. Tanner,
The majority states that I “erroneously conflate[ ] consent * * * with notions of reasonable foreseeability.”
The majority observes that, in Ohling, “[wjhen the officers knocked, they could hear a stereo playing.”
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.”
The majority states that a car parked on the driveway contradicts any implication of an invitation to enter to that point.