- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Procedure
- Date Filed: 10-08-2014
- Case #: A150713
- Judge(s)/Court Below: Nakamoto, J. for the Court; Armstrong, P.J.; & Egan, J.
- Full Text Opinion
Defendant appealed his conviction of unlawful manufacture of marijuana, unlawful delivery of marijuana, and unlawful possession of marijuana, contending that the trial court erred in denying his motion to suppress evidence. Defendant alleged that police officers were trespassing when they went into the backyard of a home to access the door to his apartment, located in the basement, and obtained his consent to search his apartment. The apartment is not visible from the street and does not give any appearance, by way of separate address or mailbox, to exist apart from the residential home. Defendant alleged the trial court erred in determining that the police officers' subjective knowledge that the backyard door was Defendant's front door was the foundation for implied consent to cross the backyard without a warrant. This Court concluded that the test to establish implied consent is based on whether an objective member of the public understands there is an implied consent to enter the curtilage, not whether there is subjective knowledge on part of the officers. Nothing about the house indicated visitors were free to access the backyard; therefore, officers did not have implied consent and were trespassing. Vacated and remanded.