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State v. Gardner

Court of Appeals of Oregon

May 29, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
FRANK NATE GARDNER, Defendant-Appellant

Submitted February 21, 2013.

Linn County Circuit Court. 08081653. Glen D. Baisinger, Senior Judge.

Peter Gartlan, Chief Defender, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, 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 De Muniz, Senior Judge.

OPINION

[263 Or.App. 310] DE MUNIZ, S. J.

Defendant appeals a judgment of conviction for unlawful delivery of methamphetamine (ORS 475.890) and unlawful possession of methamphetamine (ORS 475.894). The police entered defendant's residence three times. The police first entered defendant's residence as part of a so-called " protective sweep" during the execution of a warrant authorizing the search of other structures on defendant's property. The second entry occurred when police officers accompanied defendant into his residence so that defendant could retrieve some paperwork regarding ownership of a piece of equipment. The third entry was pursuant to a warrant authorizing the search of defendant's residence. The affidavit in support of that search warrant contained assertions and information based on the first two warrantless entries of

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defendant's residence. Drug and drug-related evidence admitted at defendant's trial was seized during the second warrantless entry and the third warranted entry. Defendant moved to suppress the evidence seized during both entries, contending that the entries were unlawful in violation of Article I, section 9, of the Oregon Constitution. The trial court denied defendant's motion. On appeal, defendant renews his argument that the evidence seized during both entries should have been suppressed. We affirm.

Following the hearing on defendant's motion to suppress evidence, the trial court made findings of fact. Accordingly, we state the facts consistently with the trial court's findings of fact. See State v. Stevens, 311 Or. 119, 135, 806 P.2d 92 (1991) (appellate court bound by trial court findings of fact supported by evidence in the record). On August 5, 2008, around 9:30 p.m. five police officers from various local agencies conducted a lawful search of two mobile homes on defendant's property. The target of the warrant was Darell Thompson, a man who lived in one of the mobile homes and who was in custody during the search. Officers believed Thompson and associates were manufacturing and delivering methamphetamine. Defendant's residence and a large shop building were also on defendant's one-acre property.

The officers proceeded with the search carefully because the property had a history of being used as a methamphetamine production site. It was dark outside and the [263 Or.App. 311] officers suspected that the people on the property were armed. There was a long line of recreational vehicles parked along the south and southeast boundaries of the property that had not been searched, and there were only five officers for what the officers considered a relatively large operation.

The officers encountered four individuals on the property. One was outside and three were in a shop. The officers entered the shop to secure it and the individuals inside. Two of the individuals possessed drugs. After encountering and seizing the individuals, the officers decided that for their own safety they needed to undertake a " sweep" of defendant's residence. Officers Parker and Davis entered defendant's residence through an open glass door and announced their presence. The officers moved room-to-room looking for persons and possible weapons, opening closed doors, checking closets and bathrooms, and looking under beds. Three knives were found on a bar in a small dining area near the sliding glass door. One knife was double-edged. They also observed packaging with white residue on a dresser in one of the rooms.

Parker and Davis entered defendant's room and observed a large round table with clean packaging and packaging that contained white residue. There was also a long gun case, along with surplus military ammunition, and an empty holster in the bathroom closet. The officers did not seize any of the items they observed. No other persons or weapons were found. After leaving the residence, the officers searched the attached garage and found small propane bottles, which they believed indicated methamphetamine was smoked in that location. The entire " sweep" lasted between three to five minutes. One of the individuals in custody, Hiler, gave the officers consent to search his person and his room which was located inside defendant's residence. In Hiler's room the officers found and seized a small bag of methamphetamine and a pipe.

Defendant arrived at the property around 2:00 a.m. Defendant told the officers that he had been renting a room to Hiler for three to five months and that Hiler had access to all areas of the property and defendant's residence, with the exception of defendant's room. Defendant asserted that [263 Or.App. 312] the used ...


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