State v. Watts

284 Or.App. 146

392 P.3d 358

STATE of Oregon, Plaintiff-Respondent,

v.Jeremy Dean WATTS, Defendant-Appellant.

A155687

Court of Appeals of Oregon.

Argued and submitted October 26, 2015.

March 1, 2017

Marc D. Brown, Deputy Public Defender, argued the cause for appellant. With him on the opening brief was Peter Gartlan, Chief Defender, Office 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.

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 convicted felon. Dispatch mistakenly advised Glowacki that defendant did not have any felony convictions and the officers returned the firearms to defendant.

The following day, officers learned that defendant was a convicted felon, so they returned to defendant's residence, retrieved the weapons, and issued defendant a citation for being a felon in possession of a firearm. Defendant was subsequently indicted on three counts of being a felon in possession of a firearm.

Prior to trial, defendant moved to suppress all of the evidence derived from the search of his residence. The state argued that the search of defendant's residence was "valid under three theories." Specifically, the state contended that defendant's residence was within the scope of the search warrant for defendant's uncle's residence, the police would have inevitably discovered the firearms, and defendant gave his consent verbally and through his conduct. Defendant asserted that the only residence specified in the warrant was his uncle's and that "the state will not be able to meet its burden in showing that these firearms would have been inevitably discovered had it not been for the illegal[ ] * * * search[.]" Additionally, defendant argued that he did not consent to the search.

The trial court concluded that the search of defendant's residence was beyond the scope of the warrant and turned to the question of whether defendant voluntarily consented to the search. The court stated that, despite the fact that "there was a dramatic display of weaponry," multiple armored vehicles, and defendant was in handcuffs the entire time, he voluntarily consented to the search of his residence. In denying defendant's motion to suppress, the court concluded that, although defendant was "presented with a difficult choice," defendant was not inappropriately coerced or pressured into giving his consent and the act of opening his residence to remove the dogs and his statement "have at it, it's all yours," were voluntary.¹ Following a bench trial on stipulated facts, defendant was found guilty of all three counts of being a felon in possession of a firearm.

On appeal, the parties do not dispute the trial court's conclusion that defendant's residence was outside of the scope of the search warrant or argue that the inevitable discovery doctrine is applicable. Defendant argues that, under the totality of the circumstances, he did not consent and, even if his conduct and statements amounted to consent, his consent was not voluntary. Additionally, defendant contends that, if he did voluntarily consent to a search, "that consent was a product of the officers exploiting his unlawful arrest." The state asserts that the search was justified by defendant's unprompted consent and, alternatively, that the police found the challenged evidence in plain view during a lawful protective sweep. Furthermore, the state argues that "defendant failed to preserve any claim that his consent was the product of an unlawful arrest." Defendant replies that the state's protective sweep argument was not raised before the trial court and the record is insufficient for us to affirm on that alternative basis.

We conclude that defendant did not consent to the warrantless search of his residence.² Under Article I, section 9, of the Oregon Constitution a person's residence is "the quintessential domain protected by the constitutional guarantee against warrantless searches." State v. Louis , 296 Or. 57, 60, 672 P.2d 708 (1983).³ A warrantless search of a residence is "per se unreasonable" under Article I, section 9, unless the search is done pursuant to "one of the few specifically established and well-delineated exceptions to the warrant requirement." State v. Davis , 295 Or. 227, 237, 666 P.2d 802 (1983) (citations and internal quotation marks omitted). Consent is one of the recognized exceptions to the warrant requirement under Article I, section 9. State v. Paulson , 313 Or. 346, 351, 833 P.2d 1278 (1992). Under the consent exception to the warrant requirement, the state must prove by "a preponderance of the evidence" that, "under the totality of the circumstances, the consent was given by an act of a defendant's free will, as opposed to resulting from express or implied coercion." Jepson , 254 Or.App. at 294, 292 P.3d 660. Additionally, for us to determine whether the alleged consent was actually and voluntarily given, "the state must establish with some precision how the law enforcement officers make a request of a defendant[.]" State v. Musalf , 280 Or.App. 142, 152-53, 380 P.3d 1087 (2016) (citing State v. Warner , 284 Or. 147, 161, 585 P.2d 681 (1978) ) ("[A]ppellate courts must know what the state's witnesses contend was actually said, in order for appellate courts to discharge their constitutional function in determining the validity of consent.").

Officer Larson asked defendant to let the dogs out, and the only evidence in the record relating to how Larson made his request to defendant is from defendant's own testimony. Defendant testified that Larson told him "we need you to let your dogs out so we can search your [residence,]" and that Larson gave defendant "the choice of [the police] letting [his] dogs out or [defendant] letting [his] dogs out." Additionally, defendant testified that he removed the dogs because, under...