and submitted December 17, 2015.
County Circuit Court 11CR0694FE; Frances Elaine Burge, Judge.
Michaels argued the cause and fled the briefs for appellant.
Jonathan N. Schildt, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General, and
Shannon T. Reel, Assistant Attorney General.
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
appeals a judgment of conviction for delivery of marijuana,
ORS 475.860(2)(b) (2011), assigning error to the trial
court's denial of his motion to suppress evidence.
Defendant argues that police offcers violated Article I,
section 9, of the Oregon Constitution by using a privately
owned road marked with "No Trespassing" and
"Private Property" signs to contact defendant at
his home. Held: The trial court did not err in
denying defendant's motion to suppress because the police
offcers did not conduct a "search" within the
meaning of Article I, section 9. In the totality of the
circumstances, the signs posted along the road to
defendant's home did not objectively manifest the
intention to prohibit casual visitors from using the road to
contact defendant at his residence. Accordingly, by
approaching defendant's home, the offcers did not invade
any of defendant's protected privacy interests, and,
therefore, the protections of Article I, section 9 were not
appeals a judgment of conviction for one count of unlawful
delivery of marijuana, ORS 475.86O(2)(b) (2011). Defendant
assigns error to the trial court's denial of his motion
to suppress evidence discovered after police entered private
property in order to contact defendant at his residence.
Defendant argues that the trial court erred in concluding
that police did not unlawfully trespass on defendant's
property; defendant contends that "No Trespassing"
and "Private Drive" signs posted on a privately
owned road leading to his residence objectively manifested an
intention to prohibit casual visitors from approaching.
Finding no error by the trial court, we affirm. We reject
defendant's remaining assignments of error without
review the trial court's denial of a motion to suppress
for legal error. State v. Davis, 282 Or.App. 660,
666, 385 P.3d 1253 (2016). We are bound by the trial
court's findings of historical fact if supported by
constitutionally sufficient evidence in the record. State
v. Ehly, 317 Or 66, 75-76, 854 P.2d 421 (1993). If the
trial court did not make express factual findings on any
pertinent issue, we presume that the trial court decided
disputed facts in a manner consistent with its ultimate
conclusion. Id. at 75. We state the facts in
accordance with that standard.
March 2011, Deputies Tilley and Norton visited
defendant's home in response to an anonymous 9-1-1 call
reporting gunshots in the area. Defendant resided on Lowe
Road, a private road owned by defendant's landlord,
Ottenbreit. As Tilley traveled to defendant's residence,
he observed a green street sign lying on the ground where
Lowe Road intersects the public road. In addition to
Ottenbreit's residence and defendant's residence, at
least one other home was accessible via Lowe Road. Defendant
lived between one-half and three-quarters of a mile up Lowe
Tilley nor Norton saw any "No Trespassing" or
"Private Drive" signs along Lowe Road before
turning into defendant's driveway. Upon arriving, the
officers spoke with defendant, obtained consent to search his
home, and discovered evidence of the crime of conviction.
trial, defendant moved to suppress all of the evidence
obtained as a result of the officers' entry onto
defendant's property. Defendant argued, among other
things, that the officers had unlawfully entered
defendant's property because "No Trespassing"
and "Private Drive" signs are posted on Lowe Road,
the officers disregarded those signs, and no exigency
otherwise justified the officers' entry onto the road.
hearing on the motion to suppress, defendant offered videos
showing the route to his home. As depicted in the videos, there
are no gates, fences, or upright signs at the intersection of
Lowe Road and the public road. Some distance down Lowe Road,
there are two signs hanging on a post adjacent to the road: a
small "Private Drive" sign and a larger "No
Trespassing" sign. Further down the road, another
"No Trespassing" sign hangs on a fence set off from
and parallel to the road. The road proceeds through a wooded
area, past several driveways, before reaching defendant's
driveway and residence. There are no signs posted adjacent to
defendant's driveway. A witness testified that the signs
on Lowe Road are "clear and ...