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State v. Wilson

Court of Appeals of Oregon

May 3, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
BRYON MATTHEW WILSON, Defendant-Appellant.

          Argued and submitted December 17, 2015.

         Douglas County Circuit Court 11CR0694FE; Frances Elaine Burge, Judge. Argued and

          Brian 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.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary:

         Defendant 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 implicated.

          GARRETT, J.

         Defendant 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 written discussion.

         We 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.

         In 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 Road.

         Neither 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.

         Before 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.

         At a hearing on the motion to suppress, defendant offered videos showing the route to his home.[1] 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 ...


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