State v. Wilson
State v. Wilson
Opinion of the Court
Defendant appeals a judgment of conviction for one count of unlawful delivery of marijuana, ORS 475.860(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 P3d 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 P2d 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.
At a hearing on the motion to suppress, defendant offered videos showing the route to his home.
Ottenbreit testified that he owns and maintains most of Lowe Road. He testified that he had posted “No Trespassing” signs on Lowe Road continuously since 1993, replacing the signs as needed, and that the signs had been present at the time the officers approached defendant’s home. Ottenbreit further testified that, in addition to the residents of the homes along Lowe Road, the road was regularly accessed by delivery drivers and by a utility company with an easement on Ottenbreit’s property.
Tilley testified that it was evening, but not dark, when he drove to defendant’s home and that he did not see any signs posted along Lowe Road. He testified that, based on the fallen city street sign and the fact that “the roadway
The trial court denied defendant’s motion to suppress. In a memorandum opinion, the court reasoned that the officers did not trespass because the signs posted on Lowe Road, as depicted in the videos, were not on defendant’s property. The trial court also expressly credited the officers’ testimony that they did not see the signs.
On appeal, defendant renews his argument that the officers unlawfully trespassed in order to reach his residence. Defendant argues that the presence of the “No Trespassing” and “Private Drive” signs along Lowe Road was sufficient to manifest an intention to prohibit the public from approaching defendant’s residence, whether or not the officers actually saw the signs. In response, the state argues that, even if the officers saw the signs, a reasonable person would not have understood those signs to prohibit the use of the road to contact defendant at his residence.
Article I, section 9, of the Oregon Constitution provides, in part, that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.” In order to determine whether the government violated Article I, section 9, we must first decide the threshold question of whether the officers conducted a “search” within the meaning of Article I, section 9. State v. Meredith, 337 Or 299, 303, 96 P3d 342 (2004). “Under Article I, section 9, a search occurs when the government invades a protected privacy interest.” Id. If the government did not invade a protected privacy interest, the protections of Article I, section 9, do not apply, and our inquiry ends. Id.
Thus, we must decide whether the trial court erred in concluding that the officers did not invade defendant’s protected privacy interest by approaching his residence. In order to preserve a protected privacy interest in the areas used by the officers to access his residence, defendant was required to objectively manifest an intention to prohibit members of the public from entering those areas without permission. See State v. Dixson/Digby, 307 Or 195, 211-12, 766 P2d 1015 (1988) (“A person who wishes to preserve a constitutionally
We agree with the trial court that, under the totality of circumstances, the intention to exclude the public from using Lowe Road to access defendant’s residence was not objectively manifest. Here, the characteristics and placement of the signs were insufficient to put members of the public on notice that they were prohibited from travelling on that road to approach the residences along it. First, the presence of the two “No Trespassing” signs was not sufficient to prohibit public access to the road because a reasonable member of the public could have readily assumed that those signs were “intended only to exclude those who might put the property to their own uses,” but not “to visitors who desired to contact the residents.” State v. Pierce, 226 Or App 336,
For the foregoing reasons, we conclude that the trial court did not err in denying defendant’s motion to suppress. We reject defendant’s remaining assignments of error without written discussion.
Affirmed.
The videos were created approximately five months after the events at issue.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.