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State v. Watts

Court of Appeals of Oregon

March 1, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JEREMY DEAN WATTS, Defendant-Appellant.

          Argued and Submitted October 26, 2015

         Lane County Circuit Court 201307714. Josephine H. Mooney, Judge.

         Reversed and remanded.

          Marc D. Brown, Deputy Public Defender, argued the cause for appellant. With him on the opening brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services. With him on the reply brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.

          Shannon T. Reel, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and Wollheim, Senior Judge.

         Case Summary: Defendant appeals a judgment of conviction for three counts of being a felon in possession of a frearm, ORS 166.270, assigning error to the trial court's denial of his motion to suppress. Held: The state failed to prove by a preponderance of the evidence that defendant consented to a warrantless search of his residence. Thus, the trial court erred when it denied defendant's motion to suppress.

         Reversed and remanded.

          TOOKEY, J.

         Defendant appeals a judgment of conviction for three counts of being a felon in possession of a firearm, ORS 166.270, assigning error to the trial court's denial of his motion to suppress. Defendant argues that he did not consent to a warrantless search of his residence. We agree with defendant; he did not consent to a search of his residence and, accordingly, we reverse and remand.

         We are bound by the trial court's findings of historical fact, provided that they are supported by constitutionally sufficient evidence in the record. State v. Ehly, 317 Or 66, 75, 854 P.2d 421 (1993). "Whether those facts establish that the consent was voluntary, however, is a legal issue that we review independently." State v. Jepson, 254 Or.App. 290, 294, 292 P.3d 660 (2012). We state the facts consistently with that standard.

         On a dark January night, approximately 10 to 12 members of the Lane County Special Response Team (SRT) executed a search warrant on defendant's uncle's residence to retrieve two firearms. The SRT pulled into the driveway in three armored vehicles with their spotlights and sirens on, wearing tactical body armor, and carrying AR-15 style semi-automatic rifles. Using a loudspeaker on one of the armored vehicles, the SRT ordered the occupants to come out of the residence with their hands up. All of the occupants, including defendant, came out of the residence and were taken to the roadway in handcuffs so that they could be detained by local law enforcement officers while the SRT finished securing the property.

         As the SRT was securing the property, they came across an outbuilding that defendant used as his separate residence and could hear dogs barking aggressively inside. The SRT asked the officers to find out who owned the dogs because they did not want the dogs to run away or be shot when they entered the residence. Defendant stated that he owned the dogs. Officer Larson asked defendant to go back to his residence and safely let the dogs out, otherwise the SRT would let the dogs out themselves so the SRT could search his residence and secure it. Sergeant Harold escorted defendant to his residence to tie up the dogs. One of the four members of the SRT at defendant's residence moved defendant's handcuffs to the front of his body so he could tie up his dogs.

         After defendant tied up his dogs, but before the SRT entered the residence, defendant stated, "have at it, it's all yours." As one of the SRT members was entering defendant's residence, he noticed a long gun leaning up against the wall. Additionally, as the SRT was searching his residence, defendant told the SRT members that there are "three guns in there." After searching defendant's residence, the SRT retrieved a rifle, a handgun, and a shotgun. Detective Glowacki thought that he remembered defendant being on felony probation, so Glowacki contacted dispatch to find out whether defendant was a ...


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