Argued and Submitted: November 7, 2013.
Washington County Circuit Court D113573T. Thomas W. Kohl, Judge.
Tiffany Keast, Assistant Attorney General, argued the cause for appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Ryan Scott argued the cause and filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[264 Or.App. 260] SERCOMBE, J.
In this criminal case, a police officer, responding to a call reporting a possible intoxicated driver, spotted defendant's vehicle pulling into a self-storage facility that rented covered and uncovered parking spots for boats and recreational vehicles. To enter the storage lot, which was surrounded by a fence, defendant entered an access code to open a locked gate. The officer--who, along with other law enforcement officials, had been given an access code by the facility's manager--followed defendant's vehicle through the gate without entering his code. The officer then stopped the vehicle at a common driveway in the lot and obtained evidence that defendant had been driving while intoxicated. Defendant, charged with driving under the influence of intoxicants (DUII), moved to suppress all evidence derived from the stop, arguing that the officer's entry on the property was an unlawful search that violated her rights under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. Specifically, she argued that, because the storage lot was not open to the public, the officer could only enter the lot pursuant to a warrant or an exception to the warrant requirement, and he had neither. The trial court agreed with defendant and granted her motion.
The state appeals, arguing that the common areas of a public storage facility protected by an access gate are not " private" for constitutional purposes where defendant could not exclude other renters, their guests, or law enforcement officers from those areas. In the state's view, it follows that, when the officer entered the storage lot, he did not violate defendant's privacy interest under the state and federal constitutions. Because we agree with the state, we reverse and remand for further proceedings.
We review the trial court's grant of defendant's motion to suppress for errors of law. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). In doing so, we are bound by the trial court's express and implicit factual findings if there is constitutionally sufficient evidence in the record to support them. Id. We state the facts in accordance with that standard.
[264 Or.App. 261] On July 24, 2011, a police sergeant responded to a call reporting a possible intoxicated driver. As he drove to the location where the caller had seen the vehicle, he saw a vehicle that matched the reported description--a white truck towing a boat. The vehicle pulled into the entrance of Tote & Stow, a self-storage rental facility offering covered and uncovered parking spaces for boats and recreational vehicles, as well as fully enclosed storage garages. The officer followed.
Just after entering the storage lot, the driver of the truck, defendant, stopped at an access gate. To enter the lot, which is surrounded by a six-foot chain-link fence, drivers must pass through the gate. And to open the gate, drivers must enter a security access code or use an intercom to call an employee to request entry. Tote & Stow provides renters with access codes, and it provides law enforcement officers, who are welcome on the property, with a separate access code. Specifically, the Tote & Stow property manager " highly recommend[s] for [officers] to make daily, weekly, monthly trips in as freely as they so choose" as a " visual sense of security for our customers who are there to know that it is being watched and monitored by [the] Tualatin Police Department."
Defendant entered an access code to open the gate. The officer followed directly behind defendant without entering the access code that Tote & Stow provided to law enforcement. Once through the gate, the officer activated his emergency lights to stop defendant on suspicion of driving under the influence of intoxicants. Defendant kept driving through the lot's common areas--the driveways that separated the rows of covered and uncovered parking spots. As she appeared to begin to position her truck to back the boat into one of the covered rental spots, however, the officer got out of his vehicle. Defendant stopped, left her vehicle, and walked to the officer to speak with him. During their conversation, the officer obtained evidence that defendant was intoxicated.
As noted, defendant moved to suppress that evidence under Article I, section 9, and the Fourth Amendment. Although defendant did not dispute that the officer had reasonable suspicion to stop defendant's vehicle, she argued that [264 Or.App. 262] an officer needed a search warrant--or an exception to the warrant requirement, e.g., exigent circumstances and probable cause--" to go on to private property and pass ...