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State v. McKee

Court of Appeals of Oregon

July 22, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
BRYCE ANDREW McKEE, Defendant-Appellant

Submitted February 11, 2015

13CR00221. Yamhill County Circuit Court. John L. Collins, Judge.

Robert C. Williamson argued the cause and filed the brief for appellant.

Pamela J. Walsh argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

OPINION

Page 652

[272 Or.App. 373] DUNCAN, P. J.

In this criminal case, defendant appeals the trial court's judgment convicting him of one count of driving under the influence of intoxicants (DUII), ORS 813.010. On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence that a sheriff's deputy obtained after following defendant onto farm property owned by defendant's father. Defendant argues that the deputy's entry onto the property violated Article I, section 9, of the Oregon Constitution.[1] As explained below, the trial court erred in its analysis of whether the deputy's entry violated Article I, section 9, because it failed to determine whether the state carried its burden of proving that a reasonable person would have believed that he or she could enter the private farm property without permission, as the deputy did. Therefore, we reverse and remand.

We review the trial court's denial of defendant's motion to suppress for errors of law, and we are bound by the trial court's express and implicit findings of fact, provided there is constitutionally sufficient evidence in the record to support the findings. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993); State v. Tegland, 269 Or.App. 1, 3, 344 P.3d 63 (2015). Stated in accordance with that standard, the relevant facts are as follows.

On the night of the incident for which defendant was charged, a sheriff's deputy was on patrol in a rural area where there had been three reported burglaries in the preceding weeks. The burglaries involved, among other things, the theft of gas, tools, and batteries from vehicles. At approximately 11:00 p.m., the deputy saw a truck, which defendant was driving, and began following it. Neither the truck nor defendant was associated with the reported burglaries. The deputy testified that he " probably would have followed any vehicle * * * for an amount of time."

[272 Or.App. 374] The deputy followed defendant for approximately one mile and he did not see defendant commit any traffic violations. Defendant then turned onto a farm property. The deputy followed defendant onto the farm property " simply to ask why [defendant was] there." The property was fenced, but there were two driveways to the property from the road on which defendant and the deputy had been driving, and the driveways were not gated. There were barns on the property, and there was a " No Trespassing" sign on the side of the barn closest to the driveway that defendant and the deputy used.

Page 653

Defendant parked near a gas pump which was directly underneath a large security light. The deputy parked his patrol car behind defendant's truck but did not block the truck. Defendant got out of his truck, and, immediately thereafter, the deputy got out of his patrol car. The deputy then saw defendant walk " down the driver's side of the [truck], leaning against [it]." It appeared to the deputy that " there was some reason that [defendant] needed to use the truck for balance--maybe to correct his balance."

The deputy asked why defendant was on the farm property, and defendant answered that it was his family's farm and he was there to get gas. The deputy continued his conversation with defendant and noticed that defendant smelled of alcohol and his speech was slurred. Based ...


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