71
Argued and submitted April 11, 2019, Portland Community College, Cascade
Campus, Portland; reversed and remanded July 1, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
TRINIDAD ALATORRE,
Defendant-Appellant.
Multnomah County Circuit Court
17CR23579; A165341
469 P3d 216
Defendant appeals his conviction for fourth-degree assault, assigning error
to the trial court’s denial of his motion to suppress evidence collected inside his
home. The state concedes that the trial count erroneously concluded that it did
not matter whether a third party had authority to consent to police entry into
the home. The parties disagree, however, on the disposition. Held: The trial court
erred in concluding that it did not matter whether the third party had authority
to consent to the officers’ entry, and remand is required under these circumstances, because the Court of Appeals cannot be confident that the error did not
impede development of the record.
Reversed and remanded.
Henry Kantor, Senior Judge.
Ingrid A. MacFarlane, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Joanna Hershey, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Jennifer S. Lloyd, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Lagesen, Judge,
and Shorr, Judge.
ARMSTRONG, P. J.
Reversed and remanded.
72 State v. Alatorre
ARMSTRONG, P. J.
Defendant appeals his conviction for fourth-degree
assault, ORS 163.160 (2017), amended by Or Laws 2017,
ch 337, § 1. He assigns error to the trial court’s denial of
his motion to suppress evidence collected after a third party
admitted police officers into his home. The state concedes
the error. We accept the state’s concession and reverse and
remand.
On the day in question, two employees of an organization that was providing services to defendant, NARA
Northwest (NARA), went to defendant’s home after receiving a second- or third-hand report that he was holding a
woman there against her will. Defendant let them in, and
inside the home they encountered a woman with facial injuries. The NARA workers, the woman, and defendant had
some discussion.
Police had also received a report that a woman was
being held hostage by defendant inside the home. While
defendant was with the NARA workers, police arrived at the
door and knocked. One of the NARA workers answered the
door, let the police in, and led them to defendant. After they
entered the home, officers made observations, interviewed
defendant and the woman, photographed the woman’s injuries, and spoke with the NARA workers. Defendant was
arrested and charged with fourth-degree assault for having
caused—at an earlier date—the woman’s injuries.
Pretrial, defendant moved to suppress the evidence
that police collected inside his home, arguing that the NARA
worker did not have authority to consent to police entering
or searching his home. The state filed a written response,
asserting that the entry was lawful under emergency-aid
and community-caretaking exceptions to the warrant
requirement, and that, even if the entry were unlawful, the
evidence would inevitably have been discovered.
At a pretrial hearing to resolve a number of issues,
including this motion and other motions to suppress and
exclude evidence, several witnesses, including the NARA
workers, testified. The trial court first addressed other
motions. When the trial court addressed this motion, it
Cite as 305 Or App 71 (2020) 73
summarily rejected the legal basis of the motion—that a
third party’s lack of authority to consent to police officers’
entry into a home matters in determining the legality of a
search. The court did not further address that motion; it
denied the motion without hearing any argument from the
state or making any findings or addressing the state’s arguments on the lawfulness of the search.
On appeal, the state concedes that the trial court
erred when it rejected the legal basis for the motion to suppress, and it concedes that defendant’s conviction must
be reversed. We agree and accept the state’s concession.
See State v. Bonilla, 358 Or 475, 486,
366 P3d 331 (2015)
(“[T]he existence of valid third-party consent depends either
on the third party’s common authority over the property
based on her or his own property interest … or, alternatively, on the application of agency principles.” (Internal
citation omitted.)).
The state also argues that the case must be remanded
for the trial court to allow the parties “to litigate the merits
of defendant’s motion to suppress,” because the court never
actually held a hearing on that motion, and the state did not
present evidence on it. In reply, defendant argues that the
record is clear that the evidence that was admitted at the
hearing was intended by both the parties and the court to
make the record for all of the pending motions. He argues
that the parties did not intend to recall witnesses to make
a further record for the motion to suppress at issue here.
Defendant asserts that the record is not sufficient to support a ruling in the state’s favor on its asserted lawful bases
for the entry and collection of evidence. Defendant concludes
that, because the record was made and the state had the
burden of production and persuasion, the evidence collected
after police entered his home must be suppressed.
Although we agree with defendant that the evidence presented at the hearing was intended at the outset
to address all of the pending motions, we do not agree that
there is nothing left for the trial court to determine and that
suppression is therefore required. Because the court summarily rejected the basis for defendant’s motion to suppress,
it never made any findings and did not address or rule on
74 State v. Alatorre
the state’s asserted justifications. We reverse and remand
for further proceedings.1
Reversed and remanded.
1
We have examined the record, and this is not a case where we can be confident that the trial court’s error did not impede the development of the record by
the parties below. Cf. State v. Sheriff, 303 Or App 638, 640-41,
465 P3d 288 (2020)
(where trial court had not ruled on other asserted justifications for a search,
we did not remand for trial court to rule on them when—on the fully developed
factual record—the state could not prevail). Here, although at the outset of the
hearing it seemed clear that the parties intended to make a record for all of
the pending motions, there were a number of issues that were addressed before
and during the NARA witnesses’ testimony. Those included issues regarding the
extent to which the witnesses could testify at the hearing. It is unclear whether,
at the point that the trial court took up the motion at issue here, the parties
and the court had lost sight of that motion, and it is unclear whether the record
would have been further developed had the trial court not ruled as it did. The
witnesses had been told to remain available for the bench trial that followed the
hearing. Our disposition is intended to place the parties in the position in which
they would have been had the trial court recognized that a third party’s lack of
authority to consent to an entry and search could invalidate a search. We express
no opinion on whether the trial court would or could permit further evidence to
be taken on remand, were that to be requested.
