Lead Opinion
Defendant appeals his conviction for unlawful possession of a controlled substance. ORS 475.992. He contends that the trial court erred in refusing to suppress evidence obtained by police officers after a search allegedly conducted in violation of the “knock and announce” rule, ORS 133.235(6),
FACTS
Eugene police officer Nauta stopped a car for a traffic violation. He asked the driver and the passenger for their names and addresses. The driver stated that her name was Amy Jones and that she and her passenger lived at 975 West 5th Avenue, Apartment 3, in Eugene. The passenger, who identified himself as Douglas Ford, confirmed that he lived at that address and stated that he just had been released on temporary leave from the Oregon State Penitentiary. A radio check of the name Douglas Ford revealed that Jones’ passenger generally matched the description of a person bearing
The next day, an anonymous informant told the Eugene police that Charles Ford was currently at 975 West 5th Avenue, Apartment 3, in Eugene, where Ford and Amy Jones resided; that Ford had five concealable firearms in his possession, two of which he carried on his person and three of which were in a blue backpack that Ford kept with him at all times; that Ford was in possession of methamphetamine; and that Ford had a substantial quantity of jewelry, believed to be stolen, in his backpack. The informant’s information was based on personal observation. Some of the information was corroborated by Nauta’s earlier encounter with defendant and Jones.
Nauta recognized the name Amy Jones and the address given by the informant and, remembering that Jones had had a passenger with her the day before who had identified himself as Douglas Ford, Nauta compared police photos of Charles Ford with those of Douglas Ford. Nauta realized that Jones’ passenger the day before in fact had been defendant Charles Ford, a convicted felon
The officers commenced the process to obtain a warrant to search Apartment 3 to arrest defendant on the outstanding arrest warrants and to seize any concealable firearms in his possession. Meanwhile, two officers drove to the neighborhood to observe the apartment. While the officers were in the apartment’s parking lot, they saw a man step onto the balcony of Apartment 3 and watch them until they walked out of sight. Another officer observing Apartment 3 saw a man being admitted into the apartment by someone inside. Neither of the men seen by the officers was defendant. Jones’ car, in which Nauta had seen defendant and Jones the day before, was parked directly below the apartment in a stall designated for Apartment 3.
The officers obtained a search warrant to search Apartment 3 to arrest defendant on the outstanding arrest warrants and to seize any concealable firearms in his possession.
The officers found a handgun in a blue backpack similar to the backpack Nauta had seen on the back seat of Jones’ car the day before. They also saw a syringe loaded with methamphetamine and some drug paraphernalia in plain view on a coffee table. After defendant arrived at the police station,
At trial, defendant moved to suppress all the evidence seized by the officers at the time of his arrest, arguing that it was seized during a search allegedly conducted in violation of the knock and announce rule, ORS 133.235(6), supra n 1, and of Article I, section 9, of the Oregon Constitution, infra n 23, and the Fourth Amendment to the United States Constitution, infra n 24. He also moved to suppress the methamphetamine found in his coat and the second handgun found in his backpack at the police station and the statements he made to the officers after his arrest, arguing that they were derivative of those violations. Without making any express findings of fact, the trial court ordered suppression as to defendant’s backpack and its contents, but denied suppression of the methamphetamine found in his coat at the police station and his statements to the officers.
A jury convicted defendant of unlawful possession of a controlled substance. He appealed to the Court of Appeals, arguing that the trial court had erred in denying his motion to suppress the methamphetamine and his statements to the officers. As noted, the unlawful possession of a firearm charge was dismissed and the trial court’s suppression of the backpack and its contents was not in issue on appeal.
A majority of the Court of Appeals, sitting in banc, concluded that the officers had violated the knock and announce requirements of ORS 133.235(6) and that the violation was “aggravated,” requiring suppression of the evidence
“[T]here is no suggestion [in this case] that the police thought that they were about to execute a warrant for a major drug ring or that the occupants were dangerous. [The officers] did have reason to believe that defendant carried one or more pistols, but they also knew that the warrants for his arrest related to non-violent offenses and that he had no history of violence.”99 Or App at 7 .
Judge Deits, joined by Judges Richardson and Rossman, dissented. Finding a statutory violation, the dissenters concluded that the facts did not show an “aggravated” violation. Writing for the dissenters, Judge Deits explained:
“I am unaware of any requirement that the warrant must relate to a major drug ring before a violation of the knock and announce statute will be excused. The statement that there was no suggestion that the occupants were dangerous ignores reality. The officers expressed concerns for their safety, and those concerns were supported by objective facts.
“* * * It is preposterous to hold that an officer cannot act consistent with legitimately held safety concerns when executing a warrant on a suspected drug user believed to be in possession of drugs, stolen property and weapons, unless the officer has knowledge that the person has used the weapons in a violent manner or has a history of violence.”99 Or App at 10-11 . (Footnote omitted.)
On review, the state contends that the Court of Appeals erred in reversing the trial court, arguing that the officers had an apprehension of peril at the time they entered the apartment which excused their unannounced entry.
ORS 133.235(6), supra n 1, requires a peace officer seeking to execute an arrest warrant inside premises to notify the occupants of the premises of the officer’s “identity, authority and purpose.”
Various reasons have been given for the “knock and announce” rule. In State v. Bishop, supra,
Another reason given for the rule is to protect persons who might be injured by violent resistance to unannounced entries by law enforcement officers. State v. Valentine/Darroch, supra,
“The purpose of [knock and announce] statutes is to forbid the unannounced intrusion into a dwelling. The reasons underlying the statutes are grounded in practical experience: a police officer entering a house must guard against the possibility that he might be mistaken for someone with no right to be there.”
A third reason given for the rule is to protect a homeowners’ right to privacy. State v. Valentine/Darroch, supra,
“It must be remembered that the police officers have the right to enter after they announce their presence and purpose and, if entry is denied, they have the right to force entry. The only right of privacy protected by the announcement requirement is the right to know who is entering, why he is entering, and a few seconds to prepare for his entry.”264 Or at 60 .
In State v. Bishop, supra,
“The right of the occupants of the premises which is protected by the rule is really their right to be warned that their privacy is about to be legally invaded. Even the dissenter in Valentine/Darroch, [Chief] Justice O’Connell, who believed that the basis of the rule was privacy, had difficulty ‘in seeing the knock and announce rule as having constitutional proportions, * * *.’264 Or at 69 .”
More recently, in State v. Davis, supra,
“The purpose of the ‘knock and announce’ rule * * * is not to protect the privacy and the freedom of those within against an entry and arrest or search which the officers in fact were legally authorized to make.”
At common law, noncompliance with the knock and announce rule was excused if the officer’s peril would have been increased had the officer given notice. Sabbath v. United States, supra,
ORS 133.235 itself does not contain an apprehension of peril exception to its knock and announce requirements. The question therefore is: When the 1973 legislature enacted ORS 133.235, did it intend to recognize an apprehension of peril exception to that statute’s knock and announce requirements? For the reasons stated below, we hold that it did.
This court has never before specifically held that noncompliance with the knock and announce statute may be excused because of an officer’s apprehension of peril.
The Court of Appeals long has recognized an apprehension of peril exception to Oregon’s statutory knock and announce rule.
“[T]he police knew that the defendant had just been released from the penitentiary and that the hotel clerks who were robbed and stated that the robber used a gun in each case. Thus they had reasonable grounds to believe that tarrying in the hall outside the defendant’s door might expose them to danger. In determining the lawfulness of the entry and the*635 existence of probable cause, the court should concern itself only with what the officers reasonably believed at the time of their entry. There were exigent circumstances in this case which justified the officers in entering Staffes’ room without first announcing their purpose.”2 Or App at 169 . (Emphasis added.)
In State v. Spicer,
“We think furthermore that the ease of destruction of narcotics and the likelihood that one trafficking illegally therein would seek to do so, not to mention the possible danger to officers, were indeed exigent circumstances.”3 Or App at 127 . (Emphasis added.)
In State v. Mitchell,
“Traditionally, forcible entry has been allowed where ‘exigent circumstances’ exist to justify the exception. * * * Therefore, where notice would imperil the officer, * * * the requirement is dispensed with.
U* * * * *
“The officers’ on-the-spot decision is of necessity a hasty judgment based upon the facts - or reasonably founded suspicion - of the moment. Severe judicial second-guessing is therefore inappropriate. The officer must be given a degree of latitude for good faith judgment as to his own possible peril, e.g., Gilbert v. United States, 366 F2d 923 (9th Cir 1966), or as to the possibility for destruction of the evidence, fruits or instrumentalities of crime for which he is obliged to search. If the decision is reasonable under the ‘exigent circumstances,’ the entry is valid.
* * * *
“In State v. Steffes, supra, we cited [People v. Maddox, supra,] with approval and described its holding for excused*636 compliance with ‘knock and announce’ when (1) the police possess information which would lead them to reasonably believe the evidence would be destroyed, or (2) reasonably believe a culprit might escape, or (3) reasonably believe the police might face increased peril.
“What constitutes ‘exigent circumstances’ is discussed in more detail, and we think well stated, in State v. Clarke et al, Case No 70-382 (DCA, Fla, filed July 1970). These, stated in substance, are:
“(1) Where the person within already knows of the officer’s authority and purpose; (2) where the officer is justified in the belief that the persons within are in imminent peril of bodily harm; (3) where the officer’s peril would have been increased had he demanded entrance and stated the purpose; (4) where those within, made aware of the presence of someone outside, are engaged in activities which justify the officer in the belief that an escape or destruction of evidence is being attempted; or (5) where evidence would be destroyed if the officer announced his presence.”6 Or App at 384-87 . (Emphasis added.)
In State v. Vance,
“[T\he officers had good reason to believe that delaying their entry would increase their peril because of the above mentioned handgun. [TJhis is sufficient to require reversal, * * *.
«* * * * *
“The actions of the person who observed the officers approaching the door, coupled with the information which the officers had that the subject of the search warrant was armed, provided exigent circumstances excusing the officers’ noncompliance with ORS 133.290 [the predecessor codification of ORS 133.235].” (Emphasis added.)
The legislative history of ORS 133.235 makes it clear, beyond peradventure, that in enacting that statute the legislature intended to preserve the Court of Appeals’ interpretations of earlier versions of this state’s statutory knock and announce rule and, specifically, the interpretations recognizing an apprehension of peril exception found in State v. Vance, supra; State v. Mitchell, supra; and State v. Steffes, supra. See Minutes: Senate Committee on Judiciary, Conference Committee on SB 80, June 23,1973; Commentary to Criminal Law
The determination of the reasonableness of an
ANALYSIS
We proceed to consider whether the record in this case supports the state’s claim that the officers’ apprehension of peril excused their failure to comply with the knock and announce rule.
At the time of their forced entry, the officers knew or had reason to believe: (1) that defendant, a convicted felon prohibited by law from possessing a concealable firearm, had five concealable firearms in his possession, two of which he carried on his person and three of which he kept nearby; (2) that three weeks earlier defendant had been in possession of two concealable firearms; (3) that defendant, a convicted drug offender suspected of using methamphetamine one-day earlier, was in possession of methamphetamine; (4) that defendant was in possession of a large quantity of stolen jewelry; (5) that there were two outstanding warrants for defendant’s arrest, one of which was a felony warrant; (6) that one day earlier, defendant had given officer Nauta a false name; (7) that defendant was inside the apartment being entered; (8) that in addition to defendant, there were several other people in the apartment; (9) that a man standing on the balcony of
Viewing the totality of the circumstances present at the time of the officers’ unannounced entry in this case, we conclude that specific and articulable facts known at the time of entry, taken together with rational inferences that may be drawn from those facts, would lead a reasonable person to believe that compliance with the knock and announce requirements of ORS 133.235(6) would create a risk to the entering officers’ safety. Defendant’s illegal possession of several handguns carried on or about his person, coupled with evidence of his known history of drug abuse and of illegal drug activity on the premises to be entered, were highly specific indicators of an appreciable risk of danger to the officers. Those factors alone satisfy us that the officers’ unannounced entry was lawful.
CONSTITUTIONAL ANALYSIS
Defendant argues that in failing to knock and announce before entering the apartment, the officer violated defendant’s rights under Article I, section 9, of the Oregon Constitution.
“We are of the opinion that an otherwise lawful search and seizure accomplished by an entry which was made without an announcement of presence and purpose is not an unreasonable search and seizure within the meaning of the Oregon Constitution. We reach this conclusion because of our opinion that the interest of the momentary protection of the privacy of the householder and the interest in protecting innocent persons from the violence that may stem from the unannounced entry are not of sufficient substance to rise to constitutional stature and require the exclusion of otherwise competent evidence.”264 Or at 65-66 .
We followed that analysis in State v. Bishop, supra,
Defendant also argues that in failing to give notice the officers violated defendant’s rights under the Fourth Amendment to the United States Constitution.
In Ker v. California, supra, a case involving the California knock and announce statute, a plurality of the Supreme Court of the United States suggested that the federal knock and announce statute may have Fourth Amendment roots. Thus, aside from any state statutory violation, there conceivably might be circumstances where the failure of state officers to give notice prior to entering premises might violate the Fourth Amendment. However, in Ker, the Supreme Court specifically recognized that an officer’s reasonable apprehension of peril could excuse noncompliance with any knock and announce rule that might exist under the Fourth Amendment.
For the reasons explained above, in this case we find that the officers’ failure to give notice was not “unreasonable” under the Fourth Amendment. We therefore find no Fourth Amendment violation.
In sum, assuming that the officers did not comply with the knock and announce requirements of ORS 133.235(6), we hold that their noncompliance was excused. For the same reason, we find no federal constitutional violation. As for Article I, section 9, of the Oregon Constitution, it simply is not applicable here.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
Notes
ORS 133.235, relating to arrest by a peace officer, provides in part:
“(5) In order to make an arrest, a peace officer may enter premises in which the officer has probable cause to believe the person to be arrested to be present.
“(6) If after giving notice of the officer’s identity, authority and purpose, the officer is not admitted, the officer may enter the premises, by a breaking, if necessary.”
ORS 133.575(2) makes the knock and announce rule applicable to search warrants:
“The executing officer shall, before entering the premises, give appropriate notice of the identity, authority and purpose of the officer to the person to be searched, or to the person in apparent control of the premises to be searched, as the case may be.”
Given its conclusion that the statutory violation was “aggravated,” the Court of Appeals’ majority did not reach defendant’s state or federal constitutional claims.
Nauta testified at the suppression hearing that he had been employed as a Eugene police officer for thirteen years, that he held basic and advanced certificates from the Drug Enforcement Administration, that he had worked in narcotics enforcement for about four-and-one-half years, and that it is not difficult to tell when someone is using methamphetamine.
Defendant was convicted in 1986 of a felony controlled substance offense, ORS 475.992, and was placed on 5 years probation.
Failure to appear on a felony charge is, itself, a felony. ORS 162.205. Failure to appear on a misdemeanor charge is a Class A misdemeanor. ORS 162.195.
The state concedes that the search warrant was defective on its face, because it failed to describe with particularity the place to be searched. Defendant does not argue, however, that the evidence should be suppressed because the search warrant was defective. His only contention is that the evidence was obtained during an improper execution of the arrest warrants. This case does not present the issue of whether police are authorized to enter a residence without a search warrant on the authority of an arrest warrant only. See State v. Jordan,
We do not know the factual or legal basis for the court’s ruling. Once again, see State v. Magee,
The Court of Appeals majority stated:
“The violation [of the knock and announce statute] requires suppression of evidence obtained as a result of the unlawful entry if (1) it is aggravated or (2) it also constitutes a constitutional violation. State v. Bishop,288 Or 349 , 352,605 P2d 642 (1980).”99 Or App at 4-5 .
In Bishop, this court noted that ORS 133.235(5) and (6) say “nothing concerning the consequences of this or any kind of violation * * * [of the statute].”
The state does not argue that the officers complied with the notice requirements of ORS 133.235(6).
State v. Miller,
Cases involving the execution of both arrest and search warrants interchangeably comprise the body of the law on the subject. See generally 2 LaFave, Search and Seizure (1987), § 4.8(a), 217.
The rule is traced to dictum in Semayne’s Case, 77 Eng Rep 194, 195 (KB 1603):
“As early as Semayne’s Case, * * * it was declared that ‘[i]n all cases when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the K[ing]’s process, if otherwise he cannot enter. But before he breaks it, it ought to signify the cause of his coming, and to make request to open doors * * * (Emphasis supplied.).” Ker v. California,374 US 23 , 47,83 S Ct 1623 ,10 L Ed 2d 726 (1963) (Brennan, J., dissenting).
Some courts have held that announcement is not required when the officer justifiably believes that the subject knows of the officer’s presence and purpose so that an announcement would be a “useless gesture.” See Miller v. United States,
The 1854 Deady Code provided:
“The officer may break open any outer or inner door or window of a dwelling house, or otherwise, to execute the warrant, if after notice of his authority and purpose, he be refused admittance.”
Restatement, Torts (1934), § 206, comment d, states:
“Since under ordinary circumstances it is reasonable to give the possessor an opportunity to permit the actor to enter peaceably and thus avoid the danger of harm to the premises and the risk of the actor’s use of force to the person, it is usually a prerequisite to the privilege to make a forcible entry into a dwelling that the actor shall first explain his errand and make demand upon the possessor to permit him to enter and make the arrest or other apprehension. Upon refusal of such demand, or if no refusal be made by word or act, upon the expiration of a reasonable time, the privilege to effectuate a forcible entry arises. Such reasonable time would ordinarily be very brief.
“If for any reason an explanation of his errand and demand for admittance by the actor are or reasonably appear to him to be impracticable, as where such, explanation and demand would tend to frustrate or to make much more dangerous to life or limb the arrest or other apprehension, the above requirements may be dispensed with.” (Emphasis added.)
ORS 133.140(7) provides that an arrest warrant shall
“Specify that the arresting officer may enter premises, in which the officer has probable cause to believe the person to be arrested to be present, without giving notice of the officer’s authority and purpose, if the issuing judge has approved a request for such special authorization; * * (Emphasis added.)
No similar authority for a “no-knock” search warrant is explicitly found in ORS 133.575. Defendant does not argue that the officers should have applied for a “no-knock” endorsement on the arrest warrants.
Defendant does not argue that the legislature did not intend to recognize an apprehension of peril exception. We understand defendant’s argument to be that the evidence in the record does not show that compliance with the statute would have endangered the officers’ safety, and that the method and manner of their entry constituted an “aggravated” violation of the ORS 133.235(6) notice requirements.
Read v. Case,
Some of the many Court of Appeals’ decisions that recognize the apprehension of peril exception are: State v. Stalbert,
In Maddox, Justice Traynor articulated the basis for the exigent circumstances exception to the California knock and announce statute (section 844):
“It must be borne in mind that the primary purpose of the constitutional guarantees is to prevent unreasonable invasions of the security of the people in their persons, houses, papers, and effects, and when an officer has reasonable cause to enter a dwelling to make an arrest and as an incident to that arrest is authorized to make a reasonable search, his entry and his search are not unreasonable. * * * Moreover, since the demand and explanation requirements of section 844 are a codification of the common law, they may reasonably be interpreted as limited by the common law rules that compliance is not required if the officer’s peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose. Read v. Case,4 Conn 166 ,170; see Restatement, Torts, § 206, comment d. Without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide these questions in the first instance.” (Quoted with approval in Ker v. California, supra,374 US at 39-40 .) (Emphasis added.)
As originally proposed by the Criminal Law Revision Commission to the 1973 Legislature, SB 80 contained the following language:
“(7) If the arresting officer reasonably believes that the notice required by subsection (6) of this section would * * * increase the peril to the safety of the officer or another person, the officer may enter the premises without prior notice.” (Emphasis added.)
At a June 23, 1973, meeting of the conference committee on SB 80, Representative Hampton asked Commission Director Donald Paillette, whether the Commission intended that the existing body of Court of Appeals’ case law should be applied to the newly restated knock and announce requirements of SB 80. Paillette responded that the Commission’s Commentary to the Proposed Oregon Criminal Procedure Code, Final Draft and Report (November 1972), § 106, at 60, made this abundantly clear. The relevant commentary states:
“Subsection (7) permits three ‘no-knock’ exceptions, as does NYCPL §§ 120.80-120.84. These same provisions are contained in § 136 relating to execution of search warrants. The constitutionality of such provisions is upheld in Ker v. California,374 US 23 (1963), and had been approved by the Oregon Court of Appeals. State v. Mitchell, * * * [6] Or App [378],487 P2d 1156 (1971), State v. Steeves [sic],2 Or App 163 ,465 P2d 905 (1970) and State v. Vance, * * * [7] Or App [566], [492] P2d [493] (1972).”
The colloquy that followed between Hampton, Senator Eivers and Paillette leaves no doubt that, insofar as an apprehension of peril exception to the knock and announce rule was concerned, the new statute was intended to preserve relevant existing Court of Appeals’ case law.
Thereafter, on June 27,1973, the conference committee amended SB 80 to delete any express exceptions to the measure’s knock and announce requirements.
This court has often recognized common law exceptions to a statutory rule even though such exceptions do not appear expressly in the statute. Those decisions have been justified under the general rule that, as in this case, statutes codifying the common law are to be construed in a manner consistent with the common law, absent clear legislative intent to the contrary. E.g., Hatley v. Stafford,
Defendant argues in his brief that his extensive criminal history “only serves to substantiate * * * that [he] has not proven assaultive toward police, despite [his] numerous arrests for essentially petty offenses.” While it is true that defendant has never been convicted of assaulting a police officer, his extensive criminal history contains substantial evidence of his potentially violent character.
Article I, section 9, of the Oregon Constitution, 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; * *
The Fourth Amendment provides in part:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * *
Justice Harlan, concurring in the result in Ker, would have measured state action by a Fourteenth Amendment due process “fundamental fairness” standard.
Notwithstanding our dictum in State v. Bishop, supra,
In Miller v. United States, supra, the Supreme Court recognized that some states had held that noncompliance with their respective knock and announce statutes was justified by exigent circumstances. The Court, however, expressly declined to decide whether the exigent circumstances exception applied in that case because the government had made no exigent circumstances claim.
Lower federal courts and state courts have answered the question both ways. See e.g., United States v. Francis, 646 F2d 251, 257-58 (6th Cir), cert den
Concurrence Opinion
specially concurring.
The majority has fashioned a clear test to be applied to determine when the “knock and announce” requirements of ORS 133.235(6) will be excused. The test is good as far as it goes. But, because the test does not have a subjective component, I believe that the test is faulty.
The test propounded by the majority has an objective test (“would lead a reasonable person to believe”).
In my view, the excusal of statutory compliance of “knock and announce” is based upon the tenet of the apprehension of peril. The apprehension must be reasonable (objective test). But, the apprehension must exist; that is, the officer relying on the excuse must have an actual apprehension of peril (subjective test). The test approved by the majority only looks to what a reasonable person would believe and permits the excusal of the statutory requirement of knocking and announcing before a forced entry even in cases where the officer, in fact, had no apprehension of peril.
From my review of the legislative history (including the appellate cases relied upon by the legislature) cited by the majority, I am convinced that the legislature focused initially upon the apprehension of peril held by the entering officers
The majority’s rationale for the obviation of the statutory requirement to knock and announce (as expressed in the text preceding the statement of the majority’s rule) suggests to me a methodology that would first examine whether the officer had an apprehension of peril (the reason for the excuse); then, and only then, would that apprehension be examined to determine whether it was reasonable. The majority’s test leaps over the first part of the methodology and addresses only the second. That approach allows a finding of excuse without any inquiry of the officer’s belief. The majority’s only question is: Should an officer reasonably have been apprehensive? That is not the correct inquiry.
In this case, there was testimony that the officers selected forced entry “[bjecause of the potential danger involved.” The entering officers were aware of the information about defendant set forth in the majority opinion. Here, there was both a subjective and an objectively reasonable apprehension of peril. Therefore, I specially concur.