{"id":5053,"date":"2011-03-01T07:20:10","date_gmt":"2011-01-04T05:42:48","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-01-04T05:42:48","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5053","title":{"rendered":"OR: Entry onto the curtilage is presumptively a trespass, and the state could not justify it"},"content":{"rendered":"

Entry onto the curtilage is presumptively a trespass, and the state could not justify it. State v. Olinger<\/a>, 240 Ore. App. 215, 246 P.3d 20 (2010):<\/p>\n

Entry onto the property for purposes other than to contact persons at the front door, however, is a different matter. Such intrusions onto a home’s curtilage are presumptively trespasses, unless the circumstances so strongly evince an invitation to the public that it can be said that the homeowner has implicitly invited entry. State v. Pierce, 226 Ore. App. 336, 343-45, 203 P.3d 343 (2009); Somfleth, 168 Ore. App. at 425; State v. Glines, 134 Ore. App. 21, 25, 894 P.2d 516, rev den, 321 Ore. 512, 900 P.2d 509 (1995).<\/p>\n

In this case, the state argues that it is no less common or acceptable for the public (and thus the police) to be in an offshoot of a driveway with a parked car in it than it is for the public to be in the driveway itself, at least absent any evidence of the resident’s intent to exclude the public from that area. Thus, in the state’s view, we must presume that defendant implicitly consented to public entry into that area unless there is evidence that defendant intended to exclude the public, which, the state contends, there is not.<\/p>\n

We disagree that that is the appropriate analysis. The presumption of implied consent to enter does not necessarily extend to all portions of a driveway. See Pierce, 226 Ore. App. at 345-46 (police did not have implied consent to walk up a driveway that extended along the side of the defendant’s house and look in the backyard). The mere fact that the “offshoot” on which the car was parked may have been connected to, or part of, the driveway, is not dispositive. Rather, it is the location of the offshoot that matters. The uncontroverted evidence in the record here shows that the portion of the offshoot where the car was parked was on the side of the house\u2014beyond the area in which implied consent is presumed.<\/p>\n

Thus, Brown’s entry into the area on the side of the house is presumptively a trespass unless there is evidence in the record of circumstances that evince implied invitation to the public to enter that area. The state points to no such evidence, and our review of the record reveals none.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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