State v. Iams

830                December 18, 2024              No. 907

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
               ALISON MICHELE IAMS,
                  Defendant-Appellant.
             Deschutes County Circuit Court
                  19CR08326; A177674

  Raymond D. Crutchley, Judge.
  Argued and submitted January 22, 2024.
   Francis C. Gieringer, 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.
  Lauren P. Robertson argued the cause for respondent.
On the brief were Ellen F. Rosenblum, Attorney General,
Benjamin Gutman, Solicitor General, and David B. Thompson,
Assistant Attorney General.
  Before Powers, Presiding Judge, Hellman, Judge, and
Armstrong, Senior Judge.
  HELLMAN, J.
  Vacated and remanded.
Cite as 

 (2024)   831
832                                               State v. Iams

         HELLMAN, J.
          Defendant was charged with driving under the
influence of intoxicants (DUII) after an officer saw her commit traffic infractions on a public road, suspected that she
was intoxicated, followed her into her driveway to issue
the citation and continue his DUII investigation, and then
administered field sobriety tests (FSTs) in the driveway.
Defendant moved to suppress the evidence discovered after
the officer followed her into the driveway, arguing that the
officer illegally entered her private property and approached
her without a warrant or exception to the warrant requirement, and that, in any event, defendant had not voluntarily
consented to take the FSTs. The state responded that the
officer was not a trespasser because he had implied consent
to enter the driveway, and that nothing about the circumstances suggested that defendant was unable to voluntarily
consent. The trial court denied defendant’s motion to suppress, reasoning that the officer “had the right to continue
that stop and extend that stop” onto private property and
that defendant’s consent to the FSTs was voluntary.
         Defendant, who was subsequently found guilty
of DUII, argues that the trial court was wrong as to both
aspects of her motion to suppress. As explained below, we
reject defendant’s argument regarding her consent to the
FSTs. However, we agree with defendant that the trial court
erred with regard to the question of the officer’s intrusion
into the driveway. On that issue, we vacate and remand for
the trial court to address the state’s primary justification for
the entry—i.e., that the officer had implied consent to enter
the driveway—and to engage in the necessary factfinding
on that issue.
         We review a trial court’s denial of a motion to suppress for legal error, and 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. Maciel-Figueroa,

, 

 (2017). “When the trial
court did not make express factual findings, and there is
evidence from which the trial court could have found a fact
in more than one way, we will presume that the trial court
decided the facts consistently with its legal conclusion.” 

Cite as 

 (2024)                             833

However, “[i]f an implicit factual finding is not necessary to
a trial court’s ultimate conclusion or is not supported by the
record, then the presumption does not apply.” Pereida-Alba
v. Coursey, 

, 

 (2015). We recite the
following background facts, drawn from the court’s findings
and the record of the suppression hearing, in light of that
standard of review.
         Around 2:30 a.m., while on patrol in Bend, Officer
Avery saw an SUV with a taillight out. He followed the SUV
onto Columbia Avenue, which did not have marked lanes,
and noticed that the SUV was weaving three feet in either
direction. Avery continued to follow the SUV as it turned onto
NW Newport Avenue. Avery had been following the SUV for
seven to nine blocks when the driver signaled to turn into a
driveway on NW Newport. Once the driver signaled to turn,
Avery activated the overhead lights of his patrol car. The
SUV proceeded down the driveway and parked behind the
house to the east (left) of the driveway. Avery, who had a
field training officer with him in the car, followed the SUV
into the driveway. Avery believed that he could follow the
SUV based on the facts that he “initiated the stop on the
street, and she continued into the driveway, [and he] wasn’t
sure that it was her residence at that time.”
        After entering the driveway, Avery stopped between
the residences rather than proceeding around the corner,
because he was not sure where defendant was going. Avery
and his field training officer then got out of the car and
walked up the driveway, which curved between two residences and toward a third house in the back.
         Avery walked up the center of the driveway a little
further to where he could see the driver, and he saw defendant getting out of the SUV. Avery greeted defendant, who
said “hi,” and told her who he was. Defendant said that she
had seen Avery following her and asked why. Avery explained
that he was initiating a traffic stop based on what he had
observed, and, although he suspected that defendant may
have been impaired, he did not tell her that. Avery noticed
that defendant had “bloodshot, watery eyes,” and that she
was “chewing gum and was just kind of chatty” with Avery
as they were talking; he also noticed a faint smell of alcohol.
834                                                             State v. Iams

Avery asked for defendant’s license and registration, which
she produced after “fumbling through [papers and cards
from her purse], dropp[ing] several of them.”
         Based on what he was observing, Avery asked defendant if she would consent to performing voluntary standard
field sobriety tests for him. Defendant agreed to perform
the tests and Avery administered the FSTs in the driveway
between the residences near the patrol car.1 Avery observed
clues of impairment during the FSTs and arrested defendant. Following her arrest, defendant gave a breath sample
that showed blood alcohol content of .09.
         In a written motion to suppress, defendant argued
that all of the evidence obtained after Avery drove onto the
driveway and approached her—including statements defendant made to the officers, the results of the FSTs, and the
results of her breath test—should be suppressed because
Avery unlawfully entered the curtilage of her home without probable cause of a crime, without a warrant, and without an exception to the warrant requirement, in violation
of Article I, section 9, of the Oregon Constitution. At the
suppression hearing, after the evidentiary record had developed, defendant raised an additional issue under Article I,
section 9: that the testimony showed that the circumstances
of the request (in her backyard, with multiple officers present, when she was being investigated for DUII) were coercive and that “alcohol use may have impaired her ability to
make a knowing, intelligent, voluntary choice.”
         In response to those arguments, the state contended
that Avery’s entry into the driveway was lawful because he
had implied consent to enter and proceed up the shared
driveway, which was a natural pathway to the third residence. However, at one point during the suppression hearing, the state combined that argument with the suggestion
that, logically, police should be allowed to pursue suspects
onto private property to complete a stop and continue an
investigation:

    1
      Eventually, a second patrol car arrived. However, at the time that Avery
asked defendant to perform the tests, Avery and his field training officer were the
only police on the scene.
Cite as 

 (2024)                                    835

   “The fact that she has a long driveway in this case, an
   interesting case, does not affect the validity of the stop or
   the contact, partially because of the rear—the rear residence, making that entire common driveway fair ground
   for Officer Avery to walk on, and partially because I do not
   believe that logically, you should be able to get out of the DUI
   that you know you’re being stopped and drive around to your
   normal parking place behind—you know, around the corner,
   slightly, of the house rather than just stopping on a short
   driveway. I do not think that logically that follows to negate
   all the factors justifying the stop and the investigation.”
(Emphasis added.) As for the question of consent to the
FSTs, the state argued that, although that issue had not
been raised in the motion, the presence of uniformed officers
and the fact that defendant was not free to leave did not
mean that her consent was involuntary.
        The trial court denied defendant’s motion to suppress. The court reasoned that Avery initiated a traffic stop
on Newport Avenue while both vehicles were on the street,
once defendant had signaled to turn into her driveway; that
defendant then turned onto her own driveway; and that
Avery “had the right to stop her and had probable cause to
stop her for the traffic infraction.” The court then addressed
the entry into the driveway, albeit briefly, in the context of
addressing reasonable suspicion of DUII:
       “And the question then becomes whether or not he had
   reasonable suspicion to conduct a DUI investigation. And
   under Oregon law, an officer may expand an investigation
   of a person stopped for a traffic infraction only if the officer
   has a reasonable suspicion that the person has engaged in
   illegal activity other than the traffic infraction. The officer
   had a right to be where he was in that driveway because he
   had the right to stop her and give her a traffic citation. The
   question then becomes did he have reasonable suspicion to
   extend the stop?”
(Emphasis added.) The trial court concluded that Avery had
reasonable suspicion to investigate the crime of DUII and
thereby extend the stop. The court went on to conclude that
nothing in the circumstances of the stop suggested that
defendant’s will was overborne and that, in the totality of
the circumstances, her consent to the FSTs was voluntary.
836                                                 State v. Iams

          At that point, defendant asked the trial court to
clarify its “findings of fact and conclusions of law regarding
the issue of whether or not there was a privacy interest in
that back area where she had contact with law enforcement.”
In response, the court returned to the officer’s initiation and
continuation of the stop:
      “So the Court finds that the officer had the right to be
   there given that he had the right to stop her, and he initiated the stop on the—on Newport Avenue, she turned into
   that area. He still had the right to stop her and be there at
   that time. Given that he had the right to stop her and the
   issue then becomes at that point, did he observe anything
   about her that would rise to reasonable suspicion to continue or extend the stop to investigate a DUI. And given
   that he had the—he had that established, then he had the
   right to continue that stop and extend that stop.
      “So the question is whether or not he had the right to be
   there, and the Court finds that he had the right—a lawful
   right to be there at that time.”
         After the court denied the motion to suppress, the
case went to trial, where the state presented evidence of
defendant’s performance on the FSTs and her blood alcohol content. She was found guilty of DUII. She now appeals,
arguing that the court’s ruling on her motion to suppress
was incorrect both as to the lawfulness of Avery’s intrusion
into the driveway and her consent to the FSTs.
          Intrusion into the Driveway. In her first assignment
of error, defendant contends that the trial court erred in ruling both that Avery had the right to park on the driveway and
then subsequently proceed into what defendant describes
as her backyard. According to defendant, the trial court’s
expressed rationale—that the officer had probable cause to
stop defendant for the traffic infractions, which justified his
entry onto the shared driveway and his further approach
of defendant so long as there was reasonable suspicion of
DUII—is not a justification for a warrantless entry onto her
property. Defendant further argues that the record does not
support any alternative basis for affirmance, including the
other grounds argued by the state below, such as implied
consent for the intrusion.
Cite as 

 (2024)                              837

         The state responds that defendant reads the court’s
ruling too narrowly. According to the state, the question that
the parties litigated extensively below—and that the trial
court decided—was whether defendant had a privacy interest in the shared driveway. The state focuses its appellate
arguments, as it did below, on that question and whether
Avery had implied consent to enter the driveway and proceed to the area where he contacted defendant. The state
does not attempt to defend what defendant characterizes as
the court’s ruling—that, so long as a stop is initiated on a
public road, police have the ability to continue an investigation on private property if they develop reasonable suspicion.
         As a threshold matter, we must determine the basis
for the court’s ruling with regard to the entry of the property
and approach of defendant at the back of the shared driveway. The state is correct that the question of implied consent
was the primary focus of the suppression hearing. However,
as set forth earlier, the trial court’s ruling did not engage
with the parties’ arguments on that issue, despite an express
invitation to do so. In explaining the basis for its ruling, the
court initially stated that the “officer had a right to be where
he was in that driveway because he had the right to stop her
and give her a traffic citation.” (Emphasis added.) Then, after
defendant explicitly asked the court to clarify its ruling as to
the privacy interest in the back area of the driveway where
Avery contacted defendant, the court again found that “the
officer had the right to be there given that he had the right to
stop her,” and then proceeded to address reasonable suspicion
to continue or expand the stop. (Emphasis added.) Given that
context, we do not understand the trial court to have ruled on
the issue of implied consent to enter and approach defendant
where he contacted her. Rather, we take the court’s ruling at
face value: Avery was justified in approaching defendant in
her driveway because he “had the right to stop her” and “then
he had the right to continue that stop and extend that stop”
based on reasonable suspicion of DUII.
         The state, as noted earlier, does not defend that
rationale, and the record does not support it. Article I, section 9, protects against unreasonable invasions of privacy
interests. See generally State v. Newcomb, 

,
838                                             State v. Iams

 (2016). Whether privacy interests have been
invaded is not necessarily determined by whether police
conduct takes place on private or public property. State v.
Michel, 

, 

 (2014) (citing State v. Erb, 

, 

 (1995)).
Rather, the classification of a space that “can be deemed
private” is a reflection of constitutional principles that have
developed through case law. 

 (citing State v. Smith, 

, 

 (1998); see also 

 at 264 (citing
State v. Campbell, 

, 

 (1988),
for the proposition that “both laws and social conventions
have long recognized the right to exclude others from certain places deemed to be private”) (internal quotation marks
omitted))).
          That body of case law regarding privacy includes
cases involving curtilage of a residence, including driveways. As we summarized those cases in State v. Goldberg,

, 

 (2021), the protections
of Article I, section 9, extend beyond the home to include
the curtilage of private property, and “[w]hen considering a
warrantless entry onto the curtilage of private property, an
officer’s status as law enforcement affords him no greater
right to intrude than any other stranger.” 

 In other words,
if “an officer’s presence on the property is trespassory, it is
an unconstitutional search.” 

 However, there “exists an
operative, but rebuttable, presumption—that the landowner
has impliedly consented to visitors going to the front door
of the house.” 

 Driveways connected to residences can be
part of the curtilage of a home. See, e.g., State v. Olinger,

, 

 (2010) (addressing police
entry into an offshoot of a driveway and stating that, if the
“entry onto that area of the curtilage was not pursuant to
defendant’s implied consent, his intrusion was a trespass,
and thus a search in violation of Article I, section 9”).
        As that body of law further reflects, warrantless
entries and searches of areas in which a defendant has a
privacy interest are per se unreasonable unless they fall
“within one of the few specifically established and well-delineated exceptions to the warrant requirement.” State v.
Davis, 

, 

 (1983) (citing Katz
Cite as 

 (2024)                                 839

v. United States, 

, 

 (1967) (internal quotation marks omitted)). As the court
explained in Davis,
       “The state has the burden of showing that circumstances
   existing at the time of entry invoke one of these exceptions.
   Absent consent, a warrantless entry can be supported only
   by exigent circumstances, i.e., where prompt responsive
   action by police officers is demanded. Such circumstances
   have been found, for example, to justify entry in the case
   of hot pursuit, the destruction of evidence, flight of a suspect, and where emergency aid was required by someone
   within.”

 (internal citations omitted); see also State v. Baker, 

, 

 (2011) (recognizing, in addition to
the exceptions listed in Davis, an officer-safety exception).
         In this case, although the parties litigated the question of whether defendant had a privacy interest in the driveway, the trial court did not answer that question. That is
significant, because Avery’s warrantless entry into a part
of the driveway in which defendant had a protected privacy
interest would require the state to demonstrate that the
entry came within one of the “few specifically established
and well-delineated exceptions to the warrant requirement.”
Davis, 

 (citing Katz 

). The state
did not attempt to do that in the trial court, and the court’s
reasoning—that Avery “had the right to stop her” based on
probable cause of a traffic violation and “then he had the
right to continue that stop and extend that stop” based on
reasonable suspicion of DUII—does not fall within any recognized exception. Although the court’s reasoning is akin to
a “hot pursuit” theory, the state has not developed a record to
establish any kind of exigency and, on appeal, has disclaimed
reliance on any exigency exception. See State v. Roberts, 

, 

 (1968) (holding that officers in hot
pursuit need not obtain a warrant before searching a car
that the defendant left behind as he fled on foot).
         The trial court therefore erred in denying defendant’s motion to suppress based on the lawfulness of Avery’s
initial stop and his subsequent development of reasonable
suspicion. See State v. Jackson, 

, 

                                               State v. Iams

130 (1984) (rejecting the state’s argument that the officer’s
presence on private property was permissible because he
was “looking for defendant and not conducting a search”;
“[i]t is no more acceptable to allow police, when they are unable
to obtain a warrant, to enter private portions of the property
to ‘confront the occupant’ ”); cf. State v. Dahl, 

, 

 (1996) (“A well-established, constitutional
principle is that, where there is neither ‘hot pursuit’ nor any
other pre-existing, exigent circumstances, police officers
with probable cause to arrest a suspect may not make a
warrantless and nonconsensual entry into a suspect’s house
in order to make a routine felony arrest of the suspect.”).
         The next question is whether we can affirm on the
alternative grounds to which the state devotes the bulk of its
argument: that Avery was not trespassing because he had
implied consent to enter and proceed up the shared driveway. That question involves factfinding, including drawing
inferences from the testimony and exhibits as to the nature
of the access to the houses, how visitors might naturally
approach the shared driveway (and where they might park),
and whether Avery was within those parts of the driveway
that visitors could expect to use to access the front doors
of the different houses. See State v. Ohling, 

, 

, rev den, 

 (1984) (“Going to the
front door and knocking [is] not a trespass. Drivers who run
out of gas, Girl Scouts selling cookies, and political candidates all go to the front doors of residences on a more or less
regular basis. Doing so is so common in this society that,
unless there are posted warnings, a fence, a moat filled with
crocodiles, or other evidence of a desire to exclude casual
visitors, the person living in the house has impliedly consented to the intrusion.”).
         Because the trial court did not address implied consent, we cannot presume that it engaged in the requisite
factfinding. See Pereida-Alba, 

. We therefore
vacate and remand for the trial court to address the question
of implied consent in the first instance. See State v. Deatley,

, 

 (2021) (explaining
that we have taken that approach in circumstances where a
trial court has not engaged in the factfinding necessary to
Cite as 

 (2024)                             841

resolve a motion to suppress). To be clear, our remand is limited to allowing the trial court to make the necessary findings of fact on the existing record, and thereafter to address
the question of implied consent.
         Consent to FSTs. In her second assignment of error,
defendant argues that “[e]ven if Avery could have parked
on defendant’s driveway and approached her in her backyard, the state still failed to show that defendant voluntarily consented to perform FSTs.” Although we are vacating and remanding for further factfinding on defendant’s
first assignment, our relief is conditional: The trial court
may reach the same conclusion as to that issue on remand,
leaving the question of the FSTs. We therefore turn to the
merits of defendant’s independent grounds for suppression
of the FSTs.
         FSTs are searches within the meaning of Article I,
section 9, and the same principles described earlier apply:
In the absence of a warrant for the search, the state must
show an exception to the warrant requirement. See State v.
Hamilton, 

, 268, 

 (2024) (describing that framework). One such exception is voluntary consent. See State v. Maddux, 

, 

(1996) (holding that, where a defendant voluntarily consents
to a request to perform FSTs, the performance of the tests
does not violate Article I, section 9). “In reviewing the voluntariness of a defendant’s consent to a search, we consider
whether, under the totality of the circumstances, the consent
was given by an act of free will or was the result of coercion,
express or implied.” State v. Moore, 

, 

 (2013), adh’d to as modified on recons, 

, 

 (2014). “Simply acquiescing in an officer’s exercise
of authority does not constitute consent.” State v. Finney, 

, 

 (1998).
         In this case, the record supports the trial court’s
ruling as to voluntariness. Viewing the facts consistently
with the court’s express and implicit findings, the totality of the circumstances establishes that defendant’s consent was freely and voluntarily given. The officer testified
that he asked for voluntary consent, and defendant agreed.
There was nothing coercive about the encounter beyond the
842                                                             State v. Iams

ordinary circumstances of a breath test; defendant had been
stopped, and the circumstances made it apparent that defendant was being investigated for driving while intoxicated.
Although the encounter occurred at night, and two officers
were present, the encounter occurred openly in the driveway of a private residence, not in a confining environment,
and nothing in the record suggests that defendant, who was
“chatty” and cooperative, was too impaired to consent. See
Finney, 

 (holding that the defendant’s consent was voluntary despite the presence of multiple officers
conducting a DUII investigation after the driver pulled over
into a private driveway at night).2 We therefore affirm the
trial court’s ruling on that aspect of defendant’s motion to
suppress.
           Vacated and remanded.




    2
      In arguing to the contrary, defendant relies on State v. Tennant, 

, 

 (2021), in which we held that, “in assessing consent versus mere acquiescence, we view the situation from the perspective of the person
being asked for consent, not the police officer asking.” According to defendant,
the record is too sparse with regard to the exact phrasing of Avery’s request
and defendant’s response for a court to conclude that the state met its burden of
showing consent as opposed to mere acquiescence. That argument is not properly before us, given the manner in which defendant raised the issue of voluntary consent in this case. Defendant’s written motion did not raise voluntary
consent, nor did she raise the issue at the beginning of the suppression hearing,
thereby alerting the state to its burden of proof on that issue; instead, she waited
until the evidence was presented and made a voluntariness argument based on
what the evidence showed about the encounter, not gaps in the state’s evidence.
Had defendant advanced the argument that she makes on appeal regarding the
state’s burden, the trial court likely would have deemed her voluntary consent
argument to be untimely or would have allowed the state an opportunity to further develop the record as to what was said.