State v. Parnell

278 Or.App. 260

373 P.3d 1252

STATE of Oregon, Plaintiff–Respondent

v.Ricky Lee PARNELL, Defendant–Appellant.

1201316CR

A156530.

Court of Appeals of Oregon.

Argued and Submitted Nov. 19, 2015.

Decided May 11, 2016.

Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attoney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and LAGESEN, Judge, and GARRETT, Judge.

GARRETT, J.

Defendant challenges a trial court's denial of his motion to suppress, after which he entered a conditional guilty plea for one count each of unlawful manufacture of marijuana, ORS 475.856 ; unlawful delivery of marijuana, ORS 475.860 ; and unlawful possession of marijuana, ORS 475.864(2). He assigns error to the trial court's denial of his motion on the ground that his consents to enter and search his home were invalidated by a preceding illegal trespass by police into his backyard. Although the trial court found that police had trespassed, it also found that defendant's initial consent to allow police to enter his home occurred before the trespass and, therefore, was not tainted by that illegality. However, the trial court did not make a ruling or any factual findings as to whether defendant's subsequent consent to allow police to search his home was affected by the police trespass. Accordingly, we vacate and remand for the trial court to address that issue.

We review a trial court's denial of a motion to suppress for legal error. State v. Farrar, 252 Or.App. 256, 257, 287 P.3d 1124 (2012). In reviewing the record, “[i]f the trial court's findings are supported by the evidence, then we are bound by those findings.” State v. Regnier, 229 Or.App. 525, 527, 212 P.3d 1269 (2009) (citing Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968) ). If the trial court does not make findings on all material facts, and there is evidence from which such facts could be decided in more than one way, “we will presume that the facts were decided in a manner consistent with the trial court's ultimate findings.” Id. Consistently with that standard, we draw the following facts from the testimony presented at the suppression hearing, see, e.g., State v. Standish, 197 Or.App. 96, 98, 104 P.3d 624 (2005) (so doing), and from the trial court's findings of fact.

United States Postal Inspector Helton notified the Oregon State Police (OSP) that a drug-sniffing dog had “alerted” to a package addressed to defendant's home. Three OSP detectives and Helton went to the address on the package and found two homes at that location. Unable to determine for which home the package was intended, Detectives Boice and Sitowski went to knock on the door of the first house, while Detective Mogle and Helton went to do the same at the second.

As he approached the second home, Mogle could see defendant through a front window. Mogle knocked, and defendant answered the door. Mogle and Helton identified themselves, and Helton asked defendant if he knew anything about the package. Mogle testified that he “waved at [Boice and Sitowski] to come over” from the first residence “at the same time” as he was asking defendant about the package.

Rather than come to the front door, Boice and Sitowski “went towards the back” of the house and, ultimately, into defendant's backyard, which was unfenced, to “watch” the “rear of the residence.” The state introduced an aerial photograph to demonstrate that there was some distance between the front door of the first residence and defendant's backyard, although the precise distance was not described.

Defendant told Mogle and Helton that the package was not his, that he did not recognize the sender, and that he was not expecting to receive anything in the mail. Without further prompting, defendant then told Mogle that he was a licensed medical marijuana grower in Oregon and that he had a grow operation inside the home. Mogle testified that he “asked to see it,” and defendant “invited” Mogle and Helton inside to see the grow operation.

After Mogle and Helton entered defendant's house, Mogle testified that, from where he was standing, he could see marijuana plants growing “in the backyard through the window.” Mogle also observed marijuana buds in a plastic container. Defendant then showed him a “grow room.” Defendant allowed Helton to open the package, and, inside, Helton found a hollowed-out book containing $25,000. Defendant “lowered his head” upon seeing the money. Mogle read defendant his Miranda rights. Defendant then told Mogle that the money was a payment for a 10–pound shipment of marijuana that he had sent to a buyer in Virginia. Mogle then requested defendant's consent “to search anywhere in the residence[,]” and defendant consented.

Mogle went to the front door to call Boice and Sitowski into defendant's home for a search of the rest of the premises. Mogle testified that Boice and Sitowski told him that, around the back of the house, they had seen marijuana plants growing out on a patio. During the search of the home, defendant made more incriminating statements to police, and police found more marijuana plants upstairs.

Before the trial court, defendant moved, in a written motion, to suppress “all evidence and any statements obtained” by police during the “entry into and search of” his home on the ground that a preceding police trespass “render[ed] any subsequent consent invalid.”

At the hearing on defendant's motion, the trial court noted that it was “pretty clear [defendant] gave the officers permission to search for marijuana.” Defendant replied that that consent had been given only after he had seen Boice and Sitowski trespass and was, therefore, tainted by that illegality. Mogle also testified that, had defendant not given consent to enter the home, he would have detained defendant and applied for a warrant.

The trial court questioned the connection between the trespass and defendant's consent and whether the “whole thing would have happened just the way it did” even if the trespass had not occurred. Defendant responded that the trespass occurred “before he invited [Mogle and Helton] in.” The trial court, however, concluded that it did not “believe [defendant] over Mr. Mogle who said that he saw the marijuana” in defendant's home before he talked with Boice and Sitowski about any marijuana they had seen while trespassing, nor did it believe that any trespass “contribute [d] to the discovery of the marijuana.” At the close of evidence, defendant argued that, “[a]ny subsequent entry into and search of [his] house * * * violated Article [I], Section 9, [of the Oregon Constitution], because even though [he] consented to the entry, * * * [his] consent was invalid because it was a product of illegal police conduct.”

Ultimately, the trial court denied defendant's motion:

“[Y]our Motion to Suppress is denied. * * * Mogle went to the front, he had a, it's okay for him to go to the front, he had a conversation with [you] [you] confided in him and told him all about it, and it's totally [a] consent search. And it, he had a right to be there. So, denied.”

In a subsequent order denying defendant's motion, the court presented, in relevant part, its findings of fact:

“Detective Mogle testified that he and Inspector Helton engaged the defendant in a conversation at the same time that Detective Mogle motioned Detectives Sitowski and Boice over. Detective Mogle testified that Detectives Sitowski and Boice took up positions to secure the back of the house as the defendant invited Mogle and Helton inside.

“Detective Mogle asked the defendant about the package. Defendant denied expecting a package and agreed to allow Mogle and Helton to open the package. Defendant told Mogle and Helton that he was a * * * grower under the Oregon Medical Marijuana Act (OMMA). Helton asked the defendant to show Mogle and Helton the grow. The defendant agreed to do so and led Mogle and Helton inside the residence. Mogle called to Detectives Sitowski and Boice, and indicated that he could see marijuana.

“After showing Mogle and Helton a spot where the defendant was growing marijuana, * * * Helton opened the package. Inside the package was a book * * * containing $25,000.00 in U.S. currency. Upon seeing the money the defendant lowered his head.

“Mogle advised the defendant of his rights pursuant to Miranda . The defendant admitted that he sold marijuana and that the cash was payment.

“Detective Sitowski testified that he did not remember entering the defendant's yard after Mogle summoned him over.”

In its “Findings of Law,” the trial court determined “that there was trespass by the detectives” and that “Detective Mogle [had] observed evidence of the manufacture of marijuana before any possible improper act by Detectives Sitowski and Boice.”

After defendant's motion was denied, he entered a conditional guilty plea to one count each of unlawful manufacture of marijuana, ORS 475.856 ; unlawful delivery of marijuana, ORS 475.860 ; and unlawful possession of marijuana, ORS 475.864(2).

As an initial matter, we address several questions regarding the preservation of defendant's appellate arguments. First, defendant argues on appeal that he was “seized” when police trespassed into his backyard. Defendant acknowledged at oral argument that he did not raise that issue before the trial court, nor does he seek plain error review. Therefore, we do not consider it. See Ailes v. Portland Meadows, Inc., 312 Or. 376, 380, 823 P.2d 956 (1991) (explaining that arguments not preserved in the trial court will not be considered on appeal); ORAP 5.45(1) (“No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court[.]”).

Second, defendant contends that that trespass invalidated his consent to open the package, an...