*1 20, 1988, 12, July July In Banc reversed on record and briefs resubmitted Submitted 1989, for new trial October reconsideration denied March and remanded 26,1990 (309 698) April petition allowed for review Oregon Reports later issue See OREGON, OF STATE Respondent, FORD, CHARLES TIMOTHY Appellant. A45907)
(10-87-01668; CA
Dave Attorney General, Virginia Linder, L. General, Solicitor Kistler, and Rives Attorney Assistant Gen- eral, Salem, filed respondent. the brief for
BUTTLER, J.
Deits, J., dissenting.
BUTTLER, J. pos- for unlawful his conviction appeals
Defendant 475.992, substance, assigning ORS of a controlled session evidence obtained suppress failure to to the trial court’s error in violation of conducted allegedly of a search the course 133.235, Fourth rule, and the and ORS “knock announce” the search constituted agree We Amendment. suppression reverse. requires violation that and a stopped defendant Eugene Police Officer Nauta in a in which defendant was woman while car defendant and the woman for passenger. asked Nauta (Jones) and gave The woman her name names addresses. staying her. defendant was her address and stated that Ford, Douglas as rather than Defendant identified himself name, Ford, living he was real Charles confirmed that that, encounter, during with the woman. Nauta testified pack he saw a blue back in the back of car. day, anonymous
The next caller informed Department just apartment that he had left an Eugene Police resided, Ford Ford possessed Charles and Jones which stolen, five jewelry that he have firearms, he had concealable two which on *3 kept in pack, three of which he in a blue back and he was possession recognized of the name methamphetamine. Nauta and, of had remembering the woman and the address that she before, compared police a the he passenger day had with her and then realized that photos Douglas of Charles Ford. Nauta (defendant), an passenger the had been Charles ex-convict appear on fel- outstanding with arrest warrants for failure to charges. I ony driving suspended trespass while and criminal buy/sell an of Another officer then told Nauta that owner sold shop had told him three weeks earlier defendant had shop him a and that he left the with concealable firearm had in his possession. another firearm for obtained warrant search defendant his order to execute the warrants for arrest concedes that possession.
cealable firearms his state face, did not the search warrant defective on its because it the searched. Defen- particularity place describe with suppressed should be dant does not assert that evidence defective; only contention search warrant was during that the evidence was obtained an improper execu- outstanding tion of the arrest warrants.
While application for the search warrant was being processed, apartment two officers drove complex to determine the layout the residence. While were in lot, parking stepped balcony a man onto Jones’ apartment and watched them until were out of sight. Meanwhile, another officer an unmarked surveillance van the apartment watched until the warrant was issued. During time, he being saw another man to the apart- admitted ment by someone inside. Neither the men observed apartment outside the However, was defendant. time, throughout car in which defendant day seen parked directly apartment. before was below the
The police chose to execute the search warrant with a eight tactical team. Six to officers arrived with the warrant. All military fatigue wore face masks and camouflage uniforms placards with on the front them as identifying police. Using a battering-ram, one officer struck the door three times until it broke while another open, shouted “Police officers with a search apartment guns warrant.” entered the drawn, which began shouting, time defendant “Is it the cops? it the cops?” Is the woman. Defendant was hand- and, down, put cuffed when he did not calm an officer a hood over head. assigns error the trial denial
Defendant court’s suppress, his motion to the execution of the arguing arrest warrants violated “knock announce” rule of 133.235, provides, part: ORS which
“(5) arrest, peace may make order to officer enter premises in probable officer has believethe cause to present. to be to be arrested “(6) identity, giving If notice of the officer’s author- after admitted, ity purpose, officer is the officer premises, by breaking, necessary.” (Empha- if enter sis supplied.) *4 presence purpose The officers here did not announce their was a before battered the door down. Their conduct clear suppression of the requires violation statute. violation of (1) result if evidence obtained as a of the unlawful it is
5
(2)
violation.
a constitutional
or
it
constitutes
aggravated
352,
(1980).
Bishop,
v.
349,
642
State
288 Or
605 P2d
711,
State
in
62 Or
663 P2d
We noted
Valentine/Darroch,
54,
in State v.
(1983),
264 Or
504
38
Bishop,
and State v.
cert den
“the court treated the violations as
Oregon
of
or federal Constitu-
level of a violation
either
tions,
suppression. They
cited
declined to order
have been
suppression
justi-
proposition
of evidence is not
for the
by
police,
recently
most
fied for a
violation
Brock,
15,
(1982) (nighttime
State v.
294 Or
“On
requirements
the Fourth Amendment as
codification
in Ker.
by
Supreme
the United
Court
enunciated
States
Supreme
Oregon
Court held
Although it is true that
Bishop
‘knock-and-
both
Valentine/Darroch
part
protection
requirements
of the
announce’
are not
Constitution,
I,
by
Oregon
Article
section
afforded
only
may infringe
the fact
that a
violation
not seem to offer a viable distinc-
federal constitution would
Valdez to hold that
if
Valdez. We understand
tion from
kind
protect
interests of the
statute violated is intended
provi-
or
protected
the relevant state
federal constitutional
subject
sions,
is
as a result of the violation
evidence obtained
only practical method
‘the
suppression,
because that
*5
* *
rights
protect
which has
devised to
of this
*.’
kind
Valdez, supra,
v.
State
Further,
In plain-clothes seven officers and one uni- form executed a warrant to search the defendant’s home for drugs. An officer in plain clothes knocked on the door while officers, uniform, five including one in stood behind him. The defendant opened and, so, the door did when he non- stepped inside, uniformed officer displayed badge pulled pistol, pointing it at the defendant. officer did not identify entering himself before or state his purpose. having officer smelled alcohol and admitted consumed one and one-half beers about two and one-half hours before executing warrant. Neither the defendant nor wife the men knew were officers or that had a warrant until were inside. We held that the evidence must be suppressed, because the circumstances of the officers’ entry rule, protected violated both interests intended violation, also that thereby constituting constitutional particularly aggravated. circumstances v. it is to State is closer to Tweed than This case In neither supra. supra, Bishop, or State Valentine/Darroch, down, did the door two cases the officers break of the latter safety endanger the home entering nor their conduct did interest of within, although privacy did invade the of those peace- occupants. although officers entered could fully, they created a situation reasonably were the victims of an have believed that robbery violently. reacted might armed have
Here,, officers believed that their violent *6 potential danger was of “the involved” justified because safety is our surprise probably biggest “the element of a for always potential We that there is recognize factor.” surprise that a warrant and the element of danger executing however, is no Here, the there police. be of benefit to they that were about suggestion thought that the drug or that major ring execute for the warrant They did have reason to believe that defen- dangerous. the pistols, or more but that dant carried one knew for and that warrants his arrest related to non-violent offenses history Although he had no of violence. the officers testified war- that one of them shouted “Police officers with search battering another hit the door three times with a rant” while ram, surprising is not the announcement was not that it the heard, by defendant, least “Is began shouting, at cops?” as the officers entered. express findings on
Although the trial made no judge findings the assume that he made suppress, motion we forced implicit legal with his conclusion that consistent Gladden, 250 443 not See Ball v. entry aggravated. was is However, dispute P2d there no but police made no privacy was invaded or that occupants’ comply requirements with the attempt authority before enter- presence, purpose announce their ing using until before force. or that wait refused simul- making We not believe that announcement do forced or the taneously very noisy entry, with a and violent surprise danger general benefit of general potential for or aggravated or nature mitigate the violation minimize did, the violation here. If they statutory requirements meaningless. would be
We conclude that violation was aggra- vated, suppression requiring the evidence.1
Reversed and remanded new trial. J.,
DEITS, dissenting. This case involves the execution of an arrest warrant in a situation where the police legitimate had concerns for safety. majority’s their requires police decision officers to requirements follow technical of the knock and announce statute the face information leads them believe so, by doing will substantial risk of death or before, injury. We have required never and we should not do so I agree now. the “knock and However, announce” was statute violated here. I not agree do that the violation was aggravated. Accordingly, I dissent. determining test for an aggravated when vio- lation has has been precisely occurred articulated. The other majority examines cases this involving issue Tweed, cludes that the here facts are closest to State v. P2d the one case where a violation of aggravated. statute found to be obtained warrant search defendant’s home for “mari- juana special barbituates.” no reason to be concerned for safety other than general concerns that *7 accompany the execution of search warrant. Two hours they warrant, before the executed the officers to decided drink This “couple beers.” then occurred: a.m., husband], response knock, 12:30 “At in to a [defendant’s opened slightly, door front his wife and two children home; objectively police a man was not identifiable as a officer, alcohol, stepped smelling through the door into the hallway identifying stating first or without himself mis- sion, hastily displayed badge and drew under his coat [from weapon], uni- an automatic which shook as he held it. Other men, plainclothes, rapidly in dentified also first.” followed the App 62 Or at 717. 1 aggravated, Given our that the was conclusion violation we do not
decide whether it also violated the constitution. federal
9
the defendant’s
gun
to hold his
on
proceeded
The first officer
minute,
tripped,
then
without
for half
unarmed husband
the
defendant
reason,
attempted
as
hand
he
apparent
in Tweed was
the violation
agree
I would
that
search warrant.
far
from
cry
this case is a
Tweed.1
but
aggravated,
Tweed, accord-
similarity
this case and
between
occupants reasonably
the
could
is that
majority,
to the
ing
robbery
of an
they were the victims
armed
have believed
However,
in
case
violently.
the facts
this
have reacted
might
not
Here, although
police
the
did
announce
quite different.
are
entered,
they
under
they
as
should have
presence
their
before
statute,
and continued
they
they
did so as
entered
resi-
throughout
the search
presence
announce their
their
on the front of
clothes
They
placards
dence.2
Further,
police.
they
as
did not smell of alco-
identifying them
if
in a manner that
cause one
doubt
hol or behave
would
police officers,
did
in Tweed.
they were
as
the officers
Additionally,
there was no
in Tweed that the
evidence
safety,
their
did
artic-
officers were concerned for
not
any
entry.
not
As
announcing
ulate
other reason for
Berardinelli,
95 Or
P2d
recognized
App
in State
(1989),
den
Or 79
important
rev
an
consideration
if a
of the knock and announce
determining
violation
statute
in the
entering
has occurred is
officers’ reasons
manner
Berardinelli,
did.3
where
warrant was executed
a.m., some officers
were
plain
at 3
were
uniform
some
clothes,
special
while others wore
uniforms with hoods and
a stun
an
win-
goggles.
grenade
upper
The officers threw
into
dow,
explosion,
“diversionary
a loud
as a
tactic.”
causing
1Although
in Tweed found a violation of the constitutional knock
entirely
requirement,
clear that
was
and announce
is not
violation
711,663
(1983) (Rossman,
aggravated.
App
State v.
found to be
62 Or
P2d 38
J.,
concurring).
specially
police
presence
majority acknowledges
as
that the
did announce their
entered,
ineffective,
entry
noisy.
was
Even
but
was
because the
concludes
noisy,
assuming
fact
continued
the initial
occupants
police.
presence
announce their
was sufficient to let the
know that
Moreover,
testified
told defendant that it was
officer
that one
asked,
cops?”
when defendant
“Is it the
rule
Berardinelli dealt with a violation of the knock
codified
announce
133.575(2),
Although
specific
relating
ORS
execution of search warrants.
identical,
wording
analysis of
is
in the
a violation under either
two statutes
Arce,
185, 188 2, 730
rev
virtually
See State v.
n
83 Or
P2d 1260
same.
349, 352, 605
Bishop,
(1987);
den
kicked entering the door and entered with drawn. Soon after
they killing fired at Dobermans, the defendants’ two injuring one and the other. The defendants contended that the police identity purpose did not announce until after they occupants The entered. testified had no idea what happening. thought was were them Two of testified that
being aggra- robbed. heldWe that the violation was vated, because the had reason to believe that com- pliance endangered with the statute could have both them and occupants of the house. was There evidence that occupants armed, officers believed the to be that there were guard large dogs two in the house that lookouts were posted occupants presence police. alert the to the Berardinelli, 95 Or at 367-68.
Here, the officers had reason to that believe defen- handguns possession. They dant five knew, had from observing day during stop him before, a traffic that he had presence police.4 behaved in nervous manner in They outstanding knew that there were two warrants for his present arrest. were aware that two other men were apartment that at defendant and least one of them watching police apartment. had been activities outside the Finally, they probably possession knew that defendant inwas property methamphetamine. of stolen majority information
The dismisses all of that stating suggestion police thought that “there is no that major drug ring were about to execute warrant for a occupants dangerous.” any or that the were I am unaware of requirement major drug ring that the warrant must relate to a before a violation of the knock and will announce statute suggestion excused. The statement there was no that the dangerous ignores reality. The officers expressed safety, concerns for their and those concerns were supported by objective facts.5 Defendant so nervous the officer asked the driver of car that had stopped gun backup help had whether defendant and called him with officers stop.
the traffic suppression hearing, apart At the the officer led the search of defendant’s ment testified: Why you entry? did select a forced
“Q. potential danger surprise “A. Because of involved. element probably biggest safety factor.” our should asserts not have possession weapons, been concerned about defendant’s he only been arrested for non-violent crimes and history preposterous had no of violence. It is to hold *9 safety officer cannot act consistent with held legitimately suspected when a warrant on executing drug cerns user to be in of possession drugs, property believed stolen has weapons, unless the officer has knowledge weapons used the in a violent or has a of history manner proof violence. would seem to actual require a situation is rather than a dangerous, more reasonable stan- dard, adopt, which I would there objective be facts support officer’s belief that a situation is dangerous. case, I Accordingly, in this would hold that violation of the aggravated. knock announce statute argues
Defendant also
the officers violated the
requirement
knock and announce
federal
constitution.
level,
To rise to that
two
First,
conditions must exist.
i.e.,
violation must
purposes,
conflict
both of the rule’s
protection
of
who might
injured
those
in an unan-
nounced
protection
homeowner’s
right
privacy.
Berardinelli,
368;
See State
supra,
95 Or
Second,
v. Bishop, supra,
State
Richardson and this dissent.