Submitted May 16, 2013
Yamhill County Circuit Court. CR100216. Carroll J. Tichenor, Judge.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[260 Or.App. 602] ORTEGA, P. J.
Defendant appeals a judgment of conviction for unlawfully possessing methamphetamine, in violation of ORS 475.894, and assigns error to the trial court's denial of her motion to suppress evidence, arguing that the warrantless search that led to the discovery of physical evidence and admissions was unlawful. We agree with defendant that the officers illegally entered the bedroom where she was sleeping and that the court therefore erred in denying her motion to suppress. Accordingly, we reverse and remand.
We review a trial court's denial of a motion to suppress for legal error and defer to the court's findings of historical fact if there is sufficient evidence to support them. State v. Mitchele, 240 Or.App. 86, 88, 251 P.3d 760 (2010). In March 2010, police received a report from a named person that, while attending an estate sale, she had seen a man lying on a couch, unresponsive. Also, there were reports that people attempting to buy things at the sale had noticed hypodermic needles and white rocks near where the man was passed out on the couch and, concerned for his well-being, had unsuccessfully tried to wake him. When officers Schoening and Obregon responded to the dispatch call and arrived at the home to conduct a welfare check, they observed that there was an estate sale sign in front, that people in front of the home were looking at sale items, and that the front door was open.
Upon entering the home, which was a double-wide trailer, the officers noticed that the lights were off and items for sale were set out on tables. The officers could hear snoring coming from the back of the home. Schoening announced himself, and, when there was no answer, the officers walked toward the snoring sound and came upon a man sleeping on a couch in the living room. Near the couch they saw syringes and two glass pipes with residue on them, of the type used to smoke methamphetamine. Eventually the officers were able [260 Or.App. 603] to wake the man and, upon searching him, found a crystalline substance that looked like methamphetamine rolled in a plastic baggie. They arrested the man, and Obregon took him outside.
Another police officer, Moreland, arrived and, along with Schoening, set out to find the owner of the trailer home, whom Schoening knew from a previous contact, so that they could inform her that they had arrested a man passed out on her couch, find out what he was doing there, and let her know that her front door was open and that there were people outside unattended at the estate sale. The officers also wanted to check for anyone else " overdosed or under the influence of illegal drugs." They walked back to a bedroom, which was where they previously had heard snoring. The door to the bedroom was open about half an inch. When they opened it, they saw a person sleeping under the bed covers. The officers loudly announced themselves as police and Moreland pulled the covers off defendant, who was not the owner of the trailer home, and shook her to wake her. She woke and sat up. While
Schoening talked to her and asked for her identification, Moreland observed on top of a television a spoon with some residue on it and on a desk a half-full syringe. Defendant and Moreland went outside the bedroom and sat at the dining room table. While Schoening and another police officer went to look for the homeowner, Moreland asked defendant about the substance in the syringe and on the spoon. She answered that the substance was methamphetamine. Moreland also asked her if she could show them any track marks on her arms, which would indicate drug use, but she refused. The officers arrested defendant and took her to the police station. There, Schoening read defendant her Miranda rights and defendant again admitted that the substance the officers had found was methamphetamine.
We now turn to defendant's contention that the trial court erred when it denied her motion to suppress. According to defendant, the police officers discovered evidence while conducting an unlawful search in violation of Article I, section 9, of the Oregon Constitution. The state counters that the trial court correctly denied the motion [260 Or.App. 604] to suppress because the exceptions of implied consent and emergency aid made the officers' entry into the trailer ...