Argued and submitted on December 28, 2012.
Deschutes County Circuit Court MI091303 Barbara Haslinger, Judge.
Elizabeth G. Daily, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Justice J. Rillera, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
SCHUMAN, P. J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII) and driving while suspended or revoked. He was arrested after Brown, a Deschutes County deputy sheriff, responded to an anonymous report indicating that a man was intoxicated and driving erratically in a resort parking lot. The deputy arrived at the scene and spotted defendant. Believing that defendant matched the informant's description, Brown pursued him and made a warrantless entry into one of the resort's guest condominiums, where he found and subsequently arrested him. At a pretrial hearing, defendant argued that Brown's warrantless entry was unlawful and moved to suppress the resulting evidence. The state responded that Brown entered with consent and, in any event, even if there was no consent, his entry was justified due to exigent circumstances. The trial court denied defendant's motion. Defendant entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress. ORS 135.335(3). We now affirm.
When reviewing a denial of a motion to suppress, we are bound by the trial court's findings of historical fact if they are supported by evidence in the record. State v. Marshall, 254 Or.App. 419, 421, 295 P.3d 128 (2013). A trial court's conclusion, based on those facts, that a warrantless search or seizure was justified by a recognized exception to the warrant requirement is a matter of law, which we assess independently. State v. Dahl, 323 Or 199, 915 P.2d 979 (1996); Marshall, 254 Or.App. at 421.
On April 26, 2009, Deschutes County Deputy Sheriff Brown responded to an anonymous phone call reporting that a "highly intoxicated" male was "driving erratically" in the parking lot of a local resort, the Inn of the Seventh Mountain. The caller described the driver as "approximately 5'8'', 170 pounds, with facial hair, wearing dark clothing and a baseball cap, and driving an older Camaro that was red with gray fenders." Brown responded to the scene at approximately 12:06 a.m. and saw a parked vehicle matching the description provided by the informant. Brown ran the vehicle's plates and discovered that the car was registered to a man whose driver's license had been suspended following a DUII conviction. After getting out of his patrol car, Brown spotted defendant "walking down the stairs from the building directly in front of where the car was parked." Brown noticed that defendant "[h]ad the dark clothing, the baseball cap, and about the right height and weight." Brown shone his flashlight at defendant and asked if they could talk. Defendant "turned around and ran back up to the room, banged on the door, and then went inside and closed the door."
Lieutenant Nelson arrived on the scene shortly thereafter. The two officers knocked on the door of the condominium that defendant had entered. A young woman answered. The officers could see that there were between 15 and 20 people in the room. Brown noticed that many of them were holding red plastic cups and that the room contained bottles of alcoholic beverages. He also noticed that the room smelled of alcohol. Brown told the woman who had answered the door, "I need to talk to the person that just ran in here." He then asked her whose room it was. She explained that she had rented it for a party. Brown then said, "Well, where's the gentleman * * * that just ran in?" The woman stepped aside, motioning to the back of the room, and said, "He's in the back." Brown then entered the room.
After locating defendant, Brown took him outside for questioning and field sobriety tests. Brown then arrested defendant for driving while suspended and DUII. Defendant was taken to Deschutes County Jail, where he consented to a breath test. The test indicated that defendant had a blood alcohol content of 0.10 percent.
Before trial, defendant moved to suppress any and all evidence that came to light after his arrest. He argued that the evidence should be suppressed because Brown did not have a warrant and because no exception justified the entry into the condominium. The state responded by offering two potential justifications. First, the state argued that the warrantless entry was justified because the woman renting the condominium consented to having the room entered and searched by police. Second, the state argued that, even if no consent was given, the entry would still be justified because of exigent circumstances. On appeal, the parties reprise their earlier arguments.
A warrantless search violates Article I, section 9, of the Oregon Constitution unless justified by an exception to the warrant requirement. State v. Dunlap, 215 Or.App. 46, 53, 168 P.3d 295 (2007).
"'Under the consent exception to the warrant requirement, the state must prove * * * that someone having the authority to do so voluntarily gave the police consent to search the defendant's person or property and that any limitations ...