Argued and submitted on March 20, 2013.
Multnomah County Circuit Court No. 101051182, Adrienne C. Nelson, Judge.
Erin Snyder, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Rebecca M. Johansen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
SCHUMAN, P. J.
Defendant appeals his conviction for possession of cocaine, ORS 475.884, assigning error to the trial court's denial of his motion to suppress. Believing that defendant was in violation of a term of his probation, police unlocked and opened the door to the public restroom that defendant was occupying. The state argued below that entry into the restroom was lawful because the officer who unlocked the door had reason to believe that defendant was trying to evade him and that, once defendant came out of the restroom, cocaine residue on a "crack pipe" was in plain view. On appeal, the state modifies the "evasive action" rationale by arguing that entry into the restroom was lawful because defendant had no privacy interest there due to the inferable fact that he was not using it for a "private purpose." The state also argues that, even if the entry was unlawful, the evidence would inevitably have been discovered; the state concedes that this argument was not raised at trial, but maintains that we should consider it under the "right for the wrong reason" rationale. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P.3d 180 (2001). As explained below, that rationale is inapplicable in this case.
Although the trial court made no explicit findings of fact when denying defendant's motion to suppress, the parties essentially agree on the relevant historical facts for purposes of this appeal. Where there was disagreement and the trial court could have reached its ultimate conclusion only by resolving that disagreement one way, we presume that it did so. Ball v. Gladden, 250 Or 485, 487, 443 P.2d 621 (1968). With that understanding, the relevant facts are as follows.
Officer Albertson, who was assigned to Portland's mounted patrol unit, saw defendant sitting on a park bench near downtown. Albertson recognized defendant; they had had several encounters in the past, which Albertson described as "mere conversation and/or arrests." Albertson knew that defendant was currently on probation. After losing sight of defendant, he contacted defendant's probation officer and learned that defendant was in violation of one of the terms of his probation. The probation officer also asked that defendant be detained should Albertson encounter him again.
Later that afternoon, Albertson again saw defendant, who was near a public one-person restroom. As Albertson approached, defendant quickly moved to the restroom ("made a beeline, " in Albertson's words), a distance of about 50 feet, and went inside. Albertson trotted his horse over to the restroom and found the door locked. He then pounded on the door and yelled for defendant to come out. Defendant did not respond. Albertson used his radio to determine whether a nearby officer had a key to the restroom. Officer Helfrich responded that he had a city-issued restroom key. Helfrich then drove to the scene, arriving a few minutes after Albertson had radioed for assistance. Helfrich knocked on the door and yelled to defendant that the police were outside. After a few seconds, the officer opened the door with the key. Once the door was opened, defendant came out of the restroom carrying a plastic grocery sack. Officers handcuffed him and placed the sack on the hood of Helfrich's patrol car. Inside the plastic sack were a number of personal items including eyeglasses, mail, medication, and a small clear plastic bag with defendant's name on it. Inside that plastic bag was a white cardboard box. Inside that box, apparently in "plain view, " was a glass pipe that Helfrich immediately recognized as a "crack pipe." The officers then seized the pipe, which subsequently tested positive for cocaine residue.
Before trial, defendant moved to suppress all evidence derived from the warrantless entry into the locked bathroom. Defendant argued that, when police unlocked the door to the restroom he was occupying, they conducted a warrantless search in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. In her opening statement at the supression hearing, defense counsel stated as one basis for her argument,
"he was in a locked bathroom, and they used a key to go in and get him. * * *The cases that I have cited [State v. Casconi, 94 Or.App. 457, 766 P.2d 397 (1988), and State v. Owczarzak, 94 Or.App. 500, 766 P.2d 399 (1988)] * * * talk about a person's right to property--I mean, excuse me, privacy. * * *The facts of the matter are slightly different, but it has to do with officers who used a camera to observe people in a bathroom.
"What it stands for is the proposition that people have a privacy right to the bathroom. * * *
"In this particular case, Mr. Holiday was in a locked bathroom and the cops used a key to go ...