Defendant appeals from her conviction of first-degree manslaughter of her husband. She assigns as error the denial of her motion to suppress evidence seized from her residence without a warrant and the admission of testimony that she made certain threats to others. We reverse and remand for a new trial because several items of evidence admitted at the trial were seized without a warrant in violation of the Fourth Amendment to the United States Constitution and Article I, § 9 of the Oregon Constitution.
On November 23, 1977, at approximately 5:30 p.m., police officers in the city of Medford received a report of a shooting at defendant’s residence. When the first officer arrived, defendant was standing in the doorway of her residence and directed the officer to her husband’s dead body lying in the hallway inside the house. Other officers arrived. Defendant reрeated several times, "I shot him, I had to shoot him.” One officer asked where the gun was, and she pointed toward the bedroom. She was twice advised of her Miranda rights and stated that she wished to talk to her attorney. The officеrs did not question her further, except to ask again where the gun was; she responded that it was under the mattress in the master bedroom. The officers then found it there, but did not seize it.
The investigation on Novémber 23 continued for several hours. During that time, officers took several photographs and observed numerous items of eviden-tiary value in plain view inside the house, but nothing except the body of the decedent was removed that day. At aрproximately 9:45 p.m., the police left the scene of the homicide. One officer stayed in the house to stand guard until the next day, and he was relieved by other officers during the night and following morning. No one else remained in the house.
After noon on the next day, November 24, several officers returned to the house to resume their investigation. They had no search warrant and, so far as the *344 transcript shows, had not attempted to obtain one. They took additional photographs and seized a number of items from the bedroom where the shooting occurred, including a bullet from the floor, the gun from under the mattress, a bedspread, two beer bottles, a ceiling panel showing an impact point of the bullet found on the floor, and a revolver and four rifles from the bedroom closet. The bullet, two handguns, the ceiling panel and numerous photographs were among the state’s exhibits received at defendant’s trial.
A search or seizure without a warrant is per se constitutionally unreasonable, subject only to a few well-delineated exceptions.
Mincey v. Arizona,
The police began their investigation in this case immediately after the homicide on November 23. The initial phase of investigation ceased that evening; the officer who remained at the house was assigned to guard, not to investigate, the scene of the homicide. The officers returned the following day after noon to resume the investigation. While law enforcement officers are not necessarily required to seek a warrant during the course of a continuous investigation,
State v. Basler,
The first phase was lawful. When the police arrived at defendant’s residence immediately after the homicide, defendant directed them inside to the victim’s body. They were properly concerned about the location of the homicide weapon, the safety of everyone present, and the preservation of evidence. Under those circumstances, it would be unreasonable to delay investigation until a warrant cоuld be obtained. The need to protect evidence from destruction, take the defendant into custody and arrange for the care of her children constituted exigent circumstances justifying the officers’ prеsence at the scene and an immediate investigation of the crime.
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Being lawfully on the premises, the officers were entitled to photograph and seize evidence in plain view.
State v. Corbin,
The second phase was not based upon exigent circumstances. By 9:45 p.m. on November 23, the defendant, her children, and the victim’s body had been removed from the house, the officers were satisfied that no further search for evidence was immediately necessary, and the house was secured by posting an officer to guard it until the next day. At that point, the exigent circumstances justifying the initial warrantless intrusion no longer existed. The initial exigencies did not carry over to the second phase of the investigation.
See State v. Brothers,
"* * * There was no indication that evidence would be lost, destroyed or removed during the time required to obtain a search warrant. Indeed, the police guard at the apartment minimized that possibility. And there is no suggestion that a search warrant could not easily and conveniently have been obtained. We decline to hold that the seriousness of the offense under investigation itself creates exigent' circumstances of the kind that under the Fourth Amеndment justify a warrantless search.”
See also State v. Brothers,
The next question is whether the erroneously-admitted evidence was prejudicial to defendant. Her principal defense was that the homicide was justified because it was committed in self-defense. She testified that her husband attacked her and that she was forced to shoot him to protect herself. The state relied on ballistics evidence derived from the homicide weapon, a bullet slug and the ceiling tile, all of' which were seized on the second day of the investigation, to disprove defendant’s theory of self-defense. The evidence was qualitatively different from the observations of the preceding day. The jury was instructed on murder, justification as a defense, and the lesser-included offenses of first-degree manslaughter, second-degree manslaughter, and criminally negligent homicide.
Because the justification defense relates to
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manslaughter in the first degree and because the erroneously-admitted evidence was used to disprove the defense, we cannot say beyond a reasonable doubt that the admission of the evidence seized in violation of the Fourth Amendment was harmless error. Therefore, the conviction must be reversed.
Chapman v. California,
For the reasons stated above, those photographs taken on November 23 are admissible; those taken on November 24 are not. We cannоt determine from the record when many of the photographs were taken. Therefore, admissibility of individual photographs must be determined at the new trial.
Defendant’s second assignment of error requires considerаtion because the issue may recur on remand. She contends that it was error to admit testimony that she had previously threatened two women whom she believed were romantically involved with her husband.
The indictment chаrged defendant with intentionally causing the death of her husband. An element of first degree manslaughter is that the homicide be "intentional.”
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Accordingly, the state may establish intent by proving motive.
State v. Lehmann,
The challenged testimony was relevant to prove motive for the homicide. As such, it was admissible if its probative value outweighed the prejudice to defendant that is caused by evidence of other crimes.
State v. Manrique,
Reversed and remanded for new trial for manslaughter.
Notes
Because exigent circumstances justified the intrusion of November 23, we do not consider whether defendаnt’s directing the officers to the victim’s body inside the house constituted consent to their presence and the search that ensued.
ORS 163.118(1) provides:
"(1) Criminal homicide constitutes manslaughter in the first degree when:
"(a) It is committed recklessly under circumstances manifesting extreme indifference to the value of human life; or
"(b) It is committed intentionally under circumstances not constituting murder.”