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State v. Brown

Court of Appeals of Oregon

August 13, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
WYMAN EDWARD BROWN, Defendant-Appellant

 Argued and Submitted December 30, 2013

Yamhill County Circuit Court. MI100367. John L. Collins, Judge.

Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Wollheim, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.

OPINION

Page 1154

HASELTON, C. J.

[264 Or.App. 593] Defendant, who entered a conditional plea of guilty, ORS 135.335(3),[1] for driving under the influence of intoxicants (DUII), ORS 813.010, appeals the resulting judgment, assigning error to the trial court's denial of his motion to suppress evidence of his intoxication obtained as a result of a warrantless search of his bedroom. Defendant contends that the search was unlawful under Article I, section 9, of the Oregon Constitution,[2] and the Fourth Amendment to the United States Constitution.[3] For the reasons explained below, we conclude that defendant's appellate contentions are unpreserved. Accordingly, we affirm.

We review the trial court's denial 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.

On May 8, 2010, in the early morning, McMinnville Police Officers Zemlicka and Desmond responded to a report that a vehicle was in a roadside ditch outside of a residential area. The officers arrived at the scene at 4:22 a.m. and observed an unoccupied green Ford Taurus in a ditch, with footprints in the mud around the car and muddy handprints on the outside of the car. After retrieving the car's registration information, Zemlicka called the registered owner. She reported that she had given the car to defendant, who, Zemlicka discovered, lived a few blocks from the scene. At [264 Or.App. 594] that point in the investigation, the officers did not know what had caused the crash.

The officers went to defendant's residence--a mobile home that he occupied with his mother and grandmother [4]--and knocked on the front door at around 5:00 a.m. When defendant's grandmother [5] answered the door, Zemlicka explained to her that the officers needed to speak with defendant and asked if she knew where he was. She replied that defendant was in his bedroom. Zemlicka asked if the officers could " come inside and speak with [him.]" She allowed the officers into the residence, led them to defendant's bedroom, and opened the door. As they stood at the threshold of the bedroom, the officers smelled an " overwhelming odor of alcohol coming from inside the bedroom," and they saw defendant asleep on his bed with mud on his hands and clothes.

The officers entered the bedroom, and Zemlicka spoke to defendant, who awoke and sat up in bed. Zemlicka stood next to defendant and asked him what he had been doing earlier that evening. Defendant admitted that he had consumed alcohol and crashed the car into the ditch. Zemlicka administered

Page 1155

a horizontal gaze nystagmus test to defendant in his bedroom. Shortly thereafter, defendant agreed to accompany Zemlicka outside and undergo other field sobriety tests. Those tests indicated that defendant was ...


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