August 13, 2014
STATE OF OREGON, Plaintiff-Respondent,
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.
HASELTON, C. J.
[264 Or.App. 593] Defendant, who entered a conditional plea of guilty, ORS 135.335(3), 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, and the Fourth Amendment to the United States Constitution. 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 --and knocked on the front door at around 5:00 a.m. When defendant's grandmother  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
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 intoxicated. He was arrested and subsequently charged with DUII.
Defendant filed a pretrial motion to suppress all evidence obtained as a result of the search of his residence and bedroom because, defendant argued, the search was not supported by a valid exception to the warrant requirement. Specifically, defendant argued that " [t]he officers entered the residence and defendant's bedroom without exigent purpose or valid consent."
In opposing defendant's motion to suppress, the state's primary contention was that grandmother had consented to a search of the residence and defendant's bedroom. [264 Or.App. 595] The state argued, in the alternative, that the state had proved that exigent circumstances existed, in that both officers testified that alcohol dissipates and that they would have been delayed in questioning defendant had they attempted to obtain a warrant.
With respect to the purported " probable-cause-plus-exigency" exception, defendant remonstrated that, at the time that the officers entered the residence, they did not have probable cause to believe that defendant had consumed alcohol and operated a vehicle while impaired--and, thus, the state had failed to establish the probable-cause component of that exception to the warrant requirement. In so arguing, defendant focused on the officers' observations prior to the point at which they entered his residence; defendant did not assert that the officers lacked probable cause for DUII when, standing at the threshold of his bedroom, the officers observed the strong smell of alcohol and the mud. Defendant did not dispute that, if there was probable cause to enter his bedroom, the circumstances were legally sufficient to establish a requisite exigency.
With respect to consent, defendant contended that the state had failed to prove that grandmother had actual or apparent authority to consent to a search of the residence, generally, and defendant's bedroom, specifically. Defendant did not contend that grandmother's opening the bedroom door constituted a search.
The trial court denied defendant's motion to suppress. In so ruling, the court reasoned:
" The person that opened--answered the door, opened the door, allowed the parties to come into the house. She was not ordered to allow them to come in. She consented to their coming in after being asked if they could come in, and took them to the defendant's room and opened the defendant's door.
" Officer Desmond stated there was an overwhelming odor of alcohol coming out of the room; and he saw that there was mud on the defendant's hands, consistent with the person that would have been putting handprints on the car.
[264 Or.App. 596] " At that point in time, they had not only reasonable suspicion to believe that the defendant had committed [DUII], they also had probable cause for that traffic crime[.] * * *
" I agree that there was no reasonable suspicion or probable cause to believe that an emergency occurred that would give an exigency to enter the house without a warrant; but there was no requirement for that, as the person with apparent authority  to give the consent gave the consent for them to enter and there was no unlawful police access to the house. The police observed the evidence of a crime that had been committed, and they observed that while they were in a place lawful to observe
it, and they were, therefore, authorized to continue the investigation * * *."
The preceding excerpt of the trial court's reasoning demonstrates that the court based its denial of defendant's motion to suppress on both consent and exigency. That is, when the officers arrived at the residence, they did not have probable cause for an intoxication-related offense; thus, probable cause plus exigency was inapposite with respect to entering the residence without a warrant. Instead, the court determined that grandmother consented to the officers entering the residence, and that she opened defendant's bedroom door of her own volition, and not at the officers' suggestion or instruction. At that point, the officers' vantage point permitted them to make " plain-view" observations that supported probable cause for DUII and, implicitly, the requisite exigency to cross the threshold into defendant's bedroom.
[264 Or.App. 597] Defendant entered a conditional guilty plea and appealed the denial of his motion to suppress. In his opening brief on appeal, defendant's sole contention is that the search of defendant's bedroom was unlawful because there was insufficient evidence to establish that grandmother had authority to consent to the search. In so arguing, defendant first contends that the officers' request to " come inside and speak with [defendant]" extended to grandmother's opening defendant's bedroom door and, therefore, the opening of the door constituted a search. Defendant argues, alternatively, that, even if opening the bedroom door was not a search, the officers crossing the threshold into defendant's bedroom was an unlawful search.
The state responds that defendant's argument regarding the opening of his bedroom door is unpreserved. With respect to the officers entering defendant's bedroom, the state asserts that search was supported by probable cause and exigent circumstances-- viz., the natural dissipation of evidence of intoxication.
In his reply brief, defendant does not respond to the state's nonpreservation argument. Instead, defendant argues, for the first time, that the " near per se " exigency that the Supreme Court identified in State v. Machuca, 347 Or. 644, 657, 227 P.3d 729 (2010), does not justify warrantless residential entries. As support for that argument, defendant invokes, inter alia, two of this court's decisions, State v. Roberts, 75 Or.App. 292, 706 P.2d 564 (1985), and State v. Kruse, 220 Or.App. 38, 184 P.3d 1182 (2008), in which we held that, with respect to warrantless residential searches aimed at obtaining evidence of DUII, to support an exigency exception to the general warrant requirement, the state must prove that the amount of time that it would take to obtain a warrant would result in material destruction of evidence of intoxication. Roberts, 75 Or.App. at 296 (so holding); Kruse, 220 Or.App. at 42 (same).
[264 Or.App. 598] In his reply brief, defendant also asserts that the warrantless entry violated the Fourth Amendment, invoking Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552, 1563, 185 L.Ed.2d 696 (2013), in which the Supreme Court held that, " while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, * * * it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." Defendant asserts, inter alia, that the exigency exception identified in McNeely applies only to evidence of blood alcohol content--and not other evidence of intoxication such as the results of field sobriety tests--and that, in any event, in this case, the state failed to establish that the officers would face any " unusual delay in securing a warrant," id. at ___, 133 S.Ct. at 1567, such that evidence of defendant's intoxication would dissipate in the time it would take to obtain a warrant.
For the reasons that follow, we conclude that defendant's appellate contentions are not preserved for our review. See State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000) ( " [A] party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." ).
First, defendant failed to preserve his present argument that grandmother's opening his bedroom door (which yielded the " plain-view" observations that established probable cause for DUII) constituted an unlawful search. Specifically, at the pretrial hearing on his motion to suppress, defendant argued that the officers did not have probable cause for DUII when they entered the residence without a warrant, and he further argued that the state failed to prove that grandmother had actual authority to consent [264 Or.App. 599] to a search of defendant's bedroom. However, defendant did not contend that grandmother's opening of the bedroom door in itself constituted a search--and, particularly, defendant did not contend that grandmother opened his bedroom door in response to any request or direction by the officers. Accordingly, we agree with the state that that argument is unpreserved.
Second, defendant did not preserve his present contention that Machuca 's dissipation-exigency analysis is inapplicable to warrantless entries into residences, or private areas within residences, and that the record here was insufficient to establish the requisite exigency under Brown and Kruse. As noted, defendant did not raise that argument until his reply brief and, as we have previously held, a theory advanced in a reply brief " simply comes too late." Clinical Research Institute v. Kemper Ins. Co., 191 Or.App. 595, 608-09, 84 P.3d 147 (2004) (citing Barns v. City of Eugene, 183 Or.App. 471, 476 n 5, 52 P.3d 1094 (2002)) (declining to address theory in the reply brief because the plaintiffs " did not raise [that] claim either before the trial court or in their opening brief" ); Hayes Oyster Co. v. Dulcich, 170 Or.App. 219, 237 n 20, 12 P.3d 507 (2000) (noting that the plaintiff was advancing " a different basis in its reply brief as to why the trial court erred" and that the " new argument comes too late" ). The same analysis and result pertains to defendant's contention that the search violated the Fourth Amendment. Accordingly, because none of defendant's appellate contentions are preserved, we affirm.