Submitted March 20, 2013
Coos County Circuit Court. 11CR0075. Michael J. Gillespie, Judge. (Order). Cynthia Lynnae Beaman, Judge. (Judgment).
Peter Gartlan, Chief Defender, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[264 Or.App. 627] This appeal arises following a stipulated facts trial that found defendant guilty of 11
counts of felon in possession of a firearm, ORS 166.270, one count of unlawful possession of MDMA, ORS 475.874, and one count of unlawful possession of marijuana, ORS 475.864. Defendant assigns error to the trial court's denial of his motion to suppress evidence obtained as a result of two deputy sheriffs' initial entry onto defendant's property. We conclude that the entry was lawful, and affirm.
We review the trial court's denial of a motion to suppress for errors of law. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005). We are bound by the trial court's findings of historical facts if they are supported by constitutionally sufficient evidence in the record. Id. We presume that any facts not expressly found by the trial court were decided in a manner consistent with the trial court's ultimate conclusion. Id.
Defendant's home is located in Coos Bay on the south side of Luscombe Loop, a paved road that travels east and west. The house and attached garage are facing north toward Luscombe Loop. The garage is on the west side of the house, facing the road, and the front door of the house is on the east side, also facing the road but set back from it. Running parallel along the front of the house--from east to west near Luscombe Loop--is a three-to-four-foot high wire fence that begins at the east side of defendant's property and ends just before the entry to defendant's three-car-wide driveway. The driveway is the access point to defendant's property; it is about as wide as the entire house and leads from Luscombe Loop a short distance to the garage. A dirt pathway from the driveway crosses defendant's front yard to the front door.
Facing north, on the west side of defendant's driveway is a second access dirt road that leads from Luscombe [264 Or.App. 628] Loop to the rear of defendant's property. The dirt road runs parallel to defendant's driveway and is separated from the driveway by a dense laurel hedge. The dirt road has a gate that is set back several feet from Luscombe Loop and is bordered by the laurel hedge on the east side and a fence on the west side that runs parallel with Luscombe Loop to the west end of defendant's property. The trial court found that the dirt access road is separated enough from the house that it would be unclear to an " objective observer" that the dirt access road is attached to the property where defendant's house is located. Nevertheless, if the gate to the dirt access road is closed, defendant's driveway is the only portion of his property along Luscombe Loop that is neither fenced nor gated.
At the time that the officers entered defendant's property, there were a number of signs posted along the perimeter of the property facing Luscombe Loop. There were two " No Trespassing" signs posted on the fence in front of the house, one of which was attached to the fence post immediately adjacent to the east side of the driveway entrance. There were also signs posted around and near the dirt access road that led to the rear of defendant's property--a " No Trespassing" sign on the gate, at least one " No Trespassing" sign on the adjacent fence, and a traffic " Stop" sign that had been secured into the ground near the gate. Additional signs were posted along the fence which paralleled Luscombe Loop and led from the dirt ...