641
Argued and submitted February 12, 2019, reversed and remanded
November 25, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSE LUIS DORADO, JR.,
Defendant-Appellant.
Washington County Circuit Court
17CR34443; A166427
477 P3d 1209
Defendant appeals from a judgment of conviction for multiple crimes stemming from an early morning hit-and-run accident. He argues that the trial court
erred in denying his motion to suppress, arguing that the investigating officer
conducted a warrantless search that was not justified by any exception to the
warrant requirement. Specifically, defendant argues that the officer’s directive to
“open the door” of his residence was an unconstitutional search under Article I,
section 9, of the Oregon Constitution and that evidence obtained as a result of the
search should be suppressed. Held: The trial court erred in denying defendant’s
motion. The officer had no lawful basis to direct defendant to open the door so
that the officer could further his investigation. That directive, followed by defendant’s acquiescence or compliance, amounted to a search. And, because the state
offers no justification for the officer’s directive, the trial court erred in denying
the motion to suppress.
Reversed and remanded.
James Lee Fun, Jr, Judge.
Mike De Muniz argued the cause for appellant. Also on
the brief was Sherlag De Muniz, LLP.
Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Powers, Presiding Judge, and Lagesen, Judge, and
Brewer, Senior Judge.
POWERS, P. J.
Reversed and remanded.
642 State v. Dorado
POWERS, P. J.
Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII),
ORS 813.010; failure to perform the duties of a driver when
property is damaged, ORS 811.700; reckless driving, ORS
811.140; and criminal mischief in the second degree, ORS
164.354, stemming from an early morning hit-and-run accident in Sherwood, Oregon. Defendant argues that the trial
court erred by denying his motion to suppress, arguing that
the investigating officer conducted a warrantless search
that was not justified by any exception to warrant requirement. We reverse and remand.
We review the denial of a motion to suppress for
legal error and, in so doing, we are bound by the trial court’s
factual findings if there is any constitutionally sufficient
evidence in the record to support them. State v. South, 300
Or App 183, 184,
453 P3d 592 (2019), rev den,
366 Or 259
(2020). In the absence of an express factual finding by the
trial court, we presume that the court found facts consistent
with its ultimate conclusion.
Id. That presumption, however, has its limits. That is, we will not presume an implicit
finding where the record does not support it or where the
record shows that such a finding was not part of the trial
court’s chain of reasoning forming the basis of its ultimate
legal conclusion. State v. Gatto,
304 Or App 210, 212,
466
P3d 981 (2020). We recount the facts consistent with those
standards.
Just after 3:00 a.m., Officer Smith responded to a
hit-and-run complaint. Smith discovered a damaged truck
parked on the street and a bumper from a different vehicle with a license plate that was left at the scene. Officers
found the suspect vehicle, a Hyundai, just down the road
from the accident. A motorcyclist slowly drove by the investigating officers looking at the Hyundai. Smith learned that
the owner of the Hyundai, defendant, lived just over a mile
away.
Approximately half an hour after beginning the
investigation, Smith went to defendant’s residence and saw
a motorcycle similar to the one that drove by him at the accident scene. Smith noted that the motorcycle engine was still
Cite as 307 Or App 641 (2020) 643
hot and confirmed with dispatch that defendant was the
registered owner of both the motorcycle and the Hyundai.
Smith knocked on the front door of defendant’s residence.
Eventually, the lights turned on and a man peeked through
the blinds. At that point, Smith said, “Open the door, Jose.”
After defendant opened the door, Smith asked, “Are you
Jose?” Defendant said that he was and asked, “Where’s my
car?” Smith observed signs of impairment including red,
watery, and bloodshot eyes, as well as a strong odor of alcohol. At this point, Smith believed he had probable cause to
arrest defendant for DUII. Defendant eventually admitted
to driving his motorcycle by the accident scene and drinking
alcohol earlier, submitted to field sobriety tests, and took a
breath test, which indicated that his BAC was .11 percent.
Defendant was ultimately arrested for DUII and failure to
perform duties of a driver.
At trial, defendant filed a motion to suppress evidence. He argued that Smith’s directive to “open the door”
was an unconstitutional search under Article I, section 9,
of the Oregon Constitution and that evidence obtained as
a result of the search should be suppressed.1 Specifically,
defendant noted, “I can’t emphasize enough[,] I’m not arguing this was a stop. I’m arguing it was a search.” Defendant
argued that
“ordering someone to open their door constitutes a search,
because it put the officer in a position where he could obtain
evidence that he could not obtain without the door becoming open. That’s when he could smell the alcohol, that’s
when he could observe other bases that he said he relied on
to develop probable cause for the arrest for [DUII].”
The state argued that the proper analysis was not whether
or not a search has occurred, but rather whether Smith had
stopped or seized defendant.
After hearing the parties’ arguments, the trial court
made its findings of fact, but did not directly address defendant’s contention that defendant was searched. Defendant
asked for clarification:
1
Article I, section 9, provides, in part:
“No law shall violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or seizure[.]”
644 State v. Dorado
“[COUNSEL]: [O]ur next issue specifically was
whether or not there was a search when the officer ordered
[defendant] to open the door. I realize the Court is—I
assume by your finding, denying that?
“THE COURT: Yes.
“[COUNSEL]: But I just want to make it clear that you
are specifically holding that there was no search. Or are
you saying that it was a search but it was justified in some
way?
“THE COURT: … I’m saying the latter. There was
a search and a seizure, I think. And whether or not it was
an encounter or a stop I don’t know makes any difference
because at the point in time the officer develops probable
cause to believe that the crime of [DUII] has occurred,
when he’s standing at the front door, he has the authority
to arrest. …
“[COUNSEL]: And so is the Court saying … that the
officer had probable cause to arrest for [DUII] prior to ever
having a conversation or prior to that door ever opening?
That’s what I’m trying to get clarification on. …
“…
“THE COURT: … [T]o be clear about this, no, the
officer did not have probable cause before the conversation
that occurred between the defendant and officer. And I suppose if the question is whether or not the officer has the
permission to knock on the door in the first place, I would
say yes. … Once he knocks on the front door and the door
is open, then the conversation that occurs from that point
forward turns into probable cause.
“[COUNSEL]: And so I just want to clarify, though,
because my main point … is that specifically it’s not the
knocking on the door, but it’s the statement by the officer,
‘Open the door, Jose,’ that that is what constituted a search.
“And so I guess I just want to clarify … is the Court
saying that wasn’t a search, period, or it was a search
and—because it’s—I’m not arguing it was just the knocking on the door made a difference one way or the other. I’ve
been arguing that it’s the direction, the order to open the
door, that is the—search in this case.
“THE COURT: Oh. I suppose since I need to fall down
on this issue, one side or the other, the Court would find
Cite as 307 Or App 641 (2020) 645
that that is not a search. That the mere act of knocking
on the door, and saying … ‘Open the door, Jose. Are you
Jose?’ is not in and of itself a search.”
After the court denied the motion to suppress, the
parties proceeded to a stipulated facts bench trial, where
defendant was ultimately convicted.
On appeal, defendant renews his argument that
Smith’s “open the door” statement constituted an order that
amounted to an unconstitutional search. Rather than renew
its argument made to the trial court that the proper inquiry
was whether the interaction between defendant and Smith
was a stop, the state contends that Smith’s directive was not
an order, and, therefore, no search occurred. Specifically, the
state argues that the trial court implicitly found that Smith’s
directive was not an order when the court concluded that no
search had occurred. The state does not argue that, at the
time he knocked on defendant’s door, Smith had developed
probable cause or that any exception to the warrant requirement applied. As explained below, we conclude that the trial
court erred in denying defendant’s motion to suppress.
As an initial matter, we reject the state’s contention
that the trial court made an implicit factual finding that
Smith’s “open the door” statement was not an order. First, we
do not understand the trial court to have found that Smith’s
“open the door” statement was a request to open the door,
rather than an order or directive to do so. Second, even if the
trial court implicitly made that finding when it concluded
that there was not a search, that finding cannot be sustained
on this record. Smith’s words were unconditional and were
not posed as a request to open the door.2 See State v. Freund,
102 Or App 647, 652,
796 P2d 656 (1990) (concluding that
the officer’s words that he “was there” to pick up the marijuana were “unconditional” and could not be characterized
2
Although the trial court discussed Smith’s statements “Open the door,
Jose” and “Are you Jose?” as if they were said together, a review of the body-cam
video entered into evidence during the suppression hearing shows that defendant
opened the door after the first statement and before Smith asked if he was Jose.
The state does not assert Smith’s question mitigated any coercive effect on the
first directive to open the door. Indeed, because the record shows that the question was asked only after the door was opened, it could not have had any arguable
mitigating effect.
646 State v. Dorado
as a request for consent to search). Therefore, the question
before us is whether the trial court erred in concluding that
Smith did not effectuate an unconstitutional search when
he directed defendant to open the door.
In addressing whether there was a search, it is
important to note that defendant does not assert that
Smith’s act of knocking on the door, standing alone, was an
impermissible search. Nor, does the state does argue that,
at the time Smith knocked on the door, there was probable cause or any other justification for a warrantless search.
Rather, it was Smith’s directive to open the door, followed
by defendant’s acquiescence or compliance with that directive, that amounts to a search. That is, Smith was able to
observe signs of intoxication only because defendant complied with Smith’s order to open the door. Had defendant not
complied and kept the door shut, Smith’s directive would not
have resulted in a search. Cf. California v. Hodari D., 499
US 621, 629,
111 S Ct 1547,
113 L Ed 2d 690 (1991) (holding no Fourth Amendment seizure occurred when a juvenile
did not comply with an officer’s command to halt); United
States v. Pope,
686 F3d 1079, 1081 (9th Cir), cert den,
568 US
1018 (2012) (concluding that there was not a search under
the Fourth Amendment where the defendant did not comply with the officer’s command to empty his pockets). Thus,
the question reduces to whether Smith had a lawful basis to
direct defendant to open the door so that he could further
his investigation.
To answer that question, we turn to State v. Finlay,
170 Or App 359,
12 P3d 999 (2000). In Finlay, an officer
received a tip that a car was driving erratically near his
location.
Id. at 361. The officer took a description of the car
and the license plate from the tip and was able to trace the
car to the defendant. When the officer saw the car run a
stop sign, the officer stopped the defendant, cited him, and
told him that he was free to leave. The defendant, however,
decided to remain at the scene to discuss the citation and
eventually admitted that he was driving erratically due to
mechanical problems.
Id. at 361-62.
Meanwhile, another officer arrived to provide backup.
That second officer, who was unaware that the original officer
Cite as 307 Or App 641 (2020) 647
had completed an investigation, asked the defendant for
his registration, and attempted to compare the Vehicle
Identification Number (VIN) on the dashboard to the registration. The officer then “advised the two occupants that
[he] wanted them to step from the vehicle” so that he could
check the VIN inside the driver’s door post.
Id. (internal
quotation marks omitted). The defendant opened his door,
the second officer looked at the VIN and, from that vantage
point, discovered evidence of a crime. Id. at 362.
The defendant moved to suppress that evidence,
arguing that the second officer did not have probable cause
to order the defendant out of his car. Id. at 363. The trial
court denied the motion, and the defendant renewed his
argument on appeal. Id. at 363-64. We noted that the second
officer “ordered defendant and his passenger to get out of the
car so that he could inspect the doorpost VIN. Thus, this is
not a case in which the investigating officer merely ‘asked’ if
the defendant would be willing to leave his [or her] vehicle or
sought, and received, consent to search.” Id. at 364 (emphasis omitted). We concluded that the second officer “had no
lawful basis to order defendant and his passenger from the
car so that [the officer] could inspect the doorpost VIN. That
is, [the officer] compelled defendant to open the car door to
reveal that which was otherwise concealed. That was an
unlawful search.” Id.
Similarly, in this case, Smith told defendant to open
the door, which allowed Smith to observe signs of intoxication that were otherwise concealed. See State v. Turechek,
74 Or App 228, 232-33,
702 P2d 1131 (1985) (holding that
an “officer conducted a search … when he opened the door
to inspect the VIN”). If Smith had knocked on the door and
merely waited for a response, or knocked on the door, identified himself, and asked “would you please open the door,”
this case would be different. Here, however, Smith’s statement was not a question. There was nothing about Smith’s
intonation or inflection to suggest that the phrase “open the
door” was a request. Rather, it was a command at 3:00 a.m.
from an armed, uniformed law enforcement officer standing
outside of defendant’s home. Smith’s command—without a
lawful basis—compelled defendant to open the door. That
was an unconstitutional search.
648 State v. Dorado
Because it is undisputed that Smith did not develop
probable cause to arrest defendant for DUII until after
defendant opened the door and revealed evidence of his
impairment and the hit-and-run offense, and the state offers
no other justification for the search, the trial court erred in
denying the motion to suppress.
Reversed and remanded.
