Argued and Submitted June 18, 2013
Washington County Circuit Court C110669CR, C102366CR. Kirsten E. Thompson, Judge.
Stephanie Hortsch, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Michael A. Casper, Deputy Solicitor General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Christina M. Hutchins, Senior Assistant Attorney General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[264 Or.App. 340] ORTEGA, P. J.
Defendant appeals from a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, and a judgment finding him in violation of his probation for committing that offense. He assigns error to the trial court's denial of his motion to suppress evidence discovered when officers detained him without a warrant. We conclude that, on the facts presented, officer safety concerns did not justify the actions the officers took to seize defendant without a warrant and that, but for that seizure, the officers would not inevitably have discovered the evidence at issue. Accordingly, we reverse and remand.
We review the trial court's denial of a motion to suppress for errors of law. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We are bound by the trial court's findings of historical fact when there is constitutionally sufficient evidence in the record to support those findings. Id. When the trial court has made no findings, we presume that the court found the facts in a manner consistent with its ultimate conclusion.
The following facts are undisputed. At about 4:30 a.m., Officers Blood and Cristofaro responded to a 9-1-1 call reporting that a woman was outside another woman's apartment door offering her a firearm. When the officers arrived, they encountered a woman, who appeared to be under the influence of methamphetamine, lying on the ground in front of the apartment with a 9mm gun a few feet in front of her. The officers seized the gun and arrested the woman, whom Blood recognized as Wisman. She told the officers that her houseguest, defendant, had given her the gun and that he was still in her apartment, which Blood knew was less than 100 feet across the parking lot. Blood testified that it was his experience that, " where there's one weapon, there's often more than one" and, based on their proximity to the apartment, he was concerned for his safety. Specifically, the officers testified that they were afraid that someone could shoot them from inside the apartment because the door was wide open and an interior light was on. Upon request, Wisman gave her consent to a search of her apartment to " make sure everyone was safe and secure" [264 Or.App. 341] and to determine if there were additional weapons in the apartment. However, the officers testified that they were not investigating defendant for a crime.
Standing outside, the officers called into Wisman's apartment several times to announce their presence, but received no answer. The officers then entered and discovered defendant lying on his stomach on a bed in a bedroom with the door open and the light on. Standing outside the bedroom door, the officers announced their presence again, but defendant, who appeared to be passed out, did not respond. Knowing that defendant was the person who had given Wisman the gun, the officers were concerned that he might be " faking passed out" and " wanted to make sure that he was secure" because they " didn't know if he was hiding weapons underneath his body[.]" As the officers detained defendant in handcuffs, he woke up and struggled slightly. The officers then rolled defendant over and found a small clear baggie that had been underneath his body. The crystal-like substance inside the baggie later tested positive for methamphetamine.
After being charged with unlawful possession of methamphetamine, defendant moved to suppress the evidence obtained as a result of the search and seizure. Defendant argued that once the officer had Wisman in custody and had secured the gun, the police had no reason to enter the apartment. Furthermore, defendant contended that, once the police saw him lying on the bed, any officer safety justification dissipated and the police should have left the apartment. The trial court denied that motion, concluding that the officers had consent to enter the apartment
and that " the issue of can [the police] pick [defendant] up, can they roll him over, ends up being defeated by the fact that they would have inevitably discovered the methamphetamine under his body." Ultimately, defendant waived his right to a jury trial and, in a stipulated facts trial, the court found him guilty of unlawful ...