Argued and Submitted: December 19, 2013.
110933990. Multnomah County Circuit Court. Eric J. Bergstrom, Judge.
Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Timothy A. Sylwester, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[266 Or.App. 173] NAKAMOTO, J.
Defendant appeals a judgment convicting him of unlawful manufacture of marijuana, ORS 475.856, unlawful delivery of marijuana, ORS 475.860(2)(a), and unlawful possession of marijuana, ORS 475.864(2). In a single assignment of error, defendant argues that the trial court should have granted his motion to suppress evidence because officers were trespassing at the time they secured defendant's consent to enter his apartment. We agree with defendant that the officers were trespassing when they obtained his consent to enter and search his apartment, and we vacate and remand for the trial court to consider whether the officers exploited the trespass to obtain defendant's consent and the evidence sought to be suppressed.
We review a trial court's denial of a motion to suppress for legal error. State v. Mitchele, 240 Or.App. 86, 88, 251 P.3d 760 (2010). We are bound by the trial court's findings of fact if there is sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). Consistent with that standard, the facts are as follows.
In 2011, Portland police received a complaint of a suspected marijuana-growing operation at a house on Southeast Taggart Street. From the street, the house appears to be a one-story home with a front door and garage. On the right-hand side of the house is a small, waist-high chain link fence with a gate. There was nothing to indicate that there was any residence in the back of the house, and any normal visitor to the house without special knowledge would go to the front door and knock.
However, the Portland police had previously investigated a marijuana-growing operation at that same address in 2008 and had learned that defendant lived in the basement and that the door to his living quarters was located in the backyard. As part of the 2008 investigation, Officer McGuire and another officer had gone to the house and knocked on the front door. The officers were met at the front door by defendant's mother, Hamblin, who gave the officers consent to enter and search the home. After searching the main part of the house, McGuire asked for permission to [266 Or.App. 174] search the basement, where defendant lives. There is no access to the basement from inside Hamblin's house; it is only accessible by a lockable exterior door located at the back of the house. Accordingly, the door at the back of the house is the " front door" of defendant's residence; however, the basement door does not have a separate address, door bell, or mailbox.
Initially, Hamblin refused to consent to a search of the basement, but then acquiesced
after McGuire told her that he would obtain a search warrant. Before leading the officers to the basement, Hamblin phoned defendant and said something to the effect of " they're coming down." She then led the officers through the house and the garage to the fenced backyard where they met defendant at the basement door. During their search of the basement in 2008, the officers discovered an illegal marijuana-growing operation.
Three years later, when the police received the 2011 complaint of a suspected growing operation at the same house, the investigating officer, Officer Manzella, read McGuire's 2008 police report. McGuire's report stated that he had learned that the only way to get access to defendant's residence was to walk along the side of the house to the backyard. Manzella and McGuire decided to conduct a " knock-and-talk" to investigate defendant and the suspected growing operation at the house. McGuire shared the information that he had learned about the layout of the house in 2008 with Manzella. Thus, based on McGuire's knowledge, the officers knew that the only way to get into the basement was to go into the backyard.
When Manzella and McGuire arrived at the house in 2011, they went directly to the backyard to knock on defendant's apartment door. To get to the door, the officers walked on a path alongside the house, through the closed gate, and into the fenced backyard. The screen door to defendant's apartment entrance was closed, but the main door was ajar. Manzella knocked on the screen door without identifying himself as a police officer. Defendant said, " Come in." From where defendant was sitting in the apartment, he [266 Or.App. 175] could not see the officers at the door. Manzella ...