Lead Opinion
In this сriminal case, defendant appeals a judgment of conviction for coercion, ORS 163.275, menacing, ORS 163.190, harassment, ORS 166.065, and two counts of assault in the fourth degree, ORS 163.160. In his first assignment of error, defendant contends that the trial court erred when it denied his motion to suppress evidence obtained as a result of the law enforcement officers’ war-rantless search of his home under Article I, section 9, of the Oregon Constitution
We review the trial court’s denial of defendant’s motion to suppress for errors of law. State v. Ehly,
We describe the facts consistently with those standards. Officers Barrington and Corning responded to a 9-1-1 call placed by defendant’s neighbor. The neighbor reported that he thought a domestic disturbance was occurring at defendant’s home because he and his brother had heard mostly male screaming and “possibly hitting” off and on for the last hour coming from defendant’s home. Barrington arrived at 3:20 p.m. and parked down the street from defendant’s home. While Barrington was awaiting Coming’s arrival, Barrington approached defendant’s home on foot. He could hear a TV on inside at a low volume, but did not hear any noises like those described by defendant’s neighbor.
Corning arrived at 3:27 p.m., and the two officers approached the front door of defendant’s
Barrington informed defendant that they were investigating a crime, told defendant that he was giving defendant a lawful order to step outside, and informed defendant that, if he refused the lawful order to step outside, he would be arrested. After defendant continued to refuse to step outside, or allow either of the officers to enter his home, Barrington arrested defendant for interfering with a police officer, pulled him out of the doorway onto the front porch, and placed him in handcuffs. Defendant became very hostile and uncoopеrative, and he began cursing at the officers.
After Barrington advised defendant of his Miranda rights, Barrington asked defendant once again if there was anyone else in the home, and defendant admitted that his wife was inside. Because defendant had been so confrontational and had lied to Barrington about defendant’s wife being inside the home, Barrington became even more concerned that defendant’s wife was inside and injured. Specifically, Barrington and Corning, who had not heard any other person inside of the home while talking with defendant, were concerned that defendant’s wife might be unconscious or injured to the point that she could not respond or request assistance. Barrington then asked defendant if he had been fighting with his wife. Defendant replied that he wanted to speak with his lawyer, and Barrington escorted him to his patrol car which was parked at the end of the street.
After defendant was placed in handcuffs and removed from the front door area, Corning immediately entered the home to see if he could contact defendant’s wife, G. Once Corning entered the home, he called out for G from the living room but did not receive a response. Corning began walking down the hallway while identifying himself as a police officer, and G emerged from a room in the back of the home. Corning escorted G to the living room and noticed that G’s face and eyes were red, as if she had been crying. Although G was not calm or composed and seemed “kind of frazzled,” Corning did not observe any injuries at that time. During the conversation that Corning had with G before Barrington returned from escorting defendant to his patrol car, G stated that she had been in an argument with defendant, but, at that point, she did not indicate that there had been a physical altercation or request any assistance.
After placing defendant in his patrol car and driving back to the front of defendant’s home, Barrington entered the home and saw that G was now seated on the couch in the living room. Upon entering the home, Barrington noticed multiple old bruises on G’s arms. He also observed that G’s face was red as if she had been crying and he asked her if she needed any immediate medical assistance. G refused Barrington’s offer to provide medical assistance.
Despite G’s refusal of Barrington’s offer to provide medical assistance, Barrington, as well as other officers who had arrived, continued to investigate, asking G what had happened in the home. Ultimately, as the questioning continued, G made multiple statements to the police relating to a number of domestic violence incidents, including the one that had occurred on that day.
Based on G’s statements to the police and other evidence gathered in the home, defendant was charged with multiple offenses involving domestic violence. He moved to suppress all the evidence gathered as a result of the war-rantless entry into his home under Article I, section 9, and the Fourth Amendment. In defendant’s motion to suppress,
The state responded that the warrantless entry into defendant’s home was justified by the emergency aid exception because the responding officers had a legitimate and valid concern that that there was an emergency, as defined in State v. Baker,
At the hearing on defendant’s motion to suppress, the trial court first ruled that the officers’ entry into defendant’s home was justified by the emergency aid exception to the warrant requirement. Specifically, the court stated that “the officers subjectively believed that there may be another individual involved in this altercation who would need their assistance, either to prevent * * * somebody from getting injured in the future, *** but more importantly * * * that the person might, in fact, be injured now, and was needing immediate assistance regarding that injury.” The trial court concluded that defendant’s behavior, intoxication, and statements that there was nothing going on and nobody else was home, in conjunction with the concern that the offiсers heard nothing coming from the home shortly after the neighbor reported a domestic dispute involving at least two people, made the officers’ concern that somebody needed aid objectively reasonable. The trial court then ruled that the emergency had dissipated once Corning entered the home and saw G because there “wasn’t any — any indication of any serious physical injuries and according to the officer here, there wasn’t any indication of any actual injuries, just that she was clearly upset.” In so concluding, the court rejected the state’s argument that the officers’ statutory obligation to investigate under Oregon’s domestic violence laws trumped defendant’s constitutional right to privacy.
Nonetheless, the trial court went on to conclude that the inevitable discovery doctrine applied because the officers had developed reasonable suspicion that some altercation had occurred; stating that the officers articulated a reasonable suspicion “that some alterсation occurred, and there may have been physical altercation, but clearly they didn’t see any injuries or anything like that, so I don’t think this developed” into probable cause. The trial court concluded that, under the inevitable discovery doctrine, the officers had “a right to then do further investigation” because they had developed reasonable suspicion. Based on its conclusion that the inevitable discovery doctrine applied in this case, the court denied defendant’s motion to suppress.
On appeal, defendant renews his argument that the officers’ warrantless entry into his home violated his rights under Article I, section 9, and the Fourth Amendment to be free from unreasonable searches. Defendant argues that, the emergency aid exception to the warrant requirement did not justify the officers’ warrantless entry into his home
The state responds that the officers’ warrantless entry into defendant’s home was justified by the emergency aid exception because the officers had an objectively reasonable belief that someone inside the home needed aid. The state further responds that the old bruising on G’s arms was observed by Barrington before the emergency had dissipated, and, thus, the officers were not required to leave the home because the officers had developed probable cause, or at least reasonable suspicion, basеd on their training and experience, and what they observed in plain view before the emergency had dissipated, to believe that defendant had assaulted G. The state concedes that the inevitable discovery doctrine does not apply in this case because there was no proper and predictable police procedure underway that would have inevitably led to the discovery of the evidence. However, the state urges us to apply the material witness exception to the warrant requirement that the Oregon Supreme Court articulated in State v. Fair,
Defendant responded to the state’s alternative ground for affirmance by filing a reply brief, in which he presents three arguments against the application of the material witness exception in Fair. First, defendant contends that there was insufficient evidence for a reasonable officer to believe that an offense involving danger of forcible injury to a person had been committed nearby because none of the officers immediately observed an injury, no less a recent injury, after any potential initial emergency dissipated. Second, for those same reasons, defendant asserts that it was unreasonable to assume that G was a witness or had information about an alleged assault. Finally, defendant contends that Fair does not apply to this case because the exception established in Fair justifies the temporary seizure of a witness but does not justify a warrantless entry or intrusion into an individual’s home.
Thus, we must first determine whether the emergency aid exception to the warrant requirement justified the officers’ warrantless entry into defendant’s home. If it did, we must then determine whether the emergency dissipated when Corning observed that G had only been crying and had not been in a physical altercation, thus requiring the officers to leave defendant’s home at that time (unless another exception to the warrant requirement applies). Based on the state’s concession that the inevitable discovery doctrine does not apply in this case — a concession with which we agree and which we accept — we need not discuss the applicability of the inevitable discovery doctrine. Additionally, we agree with the trial court that the offiсers’ statutory duty under ORS 133.055(2)(c) to investigate does not
We consider questions of state law first. State v. Kennedy,
“[A]n emergency aid exception to the Article I, section 9 warrant requirement is justified when police officers have an objectively reasonable belief, based on articulable facts, that a warrantless entry is necessary to either render immediate aid to persons, or to assist persons who have suffered, or who are imminently threatened with suffering, serious physical injury or harm.”
Id. at 649 (footnotes omitted). To show a warrantless entry into a home was justified by the need to render emergency aid, the state must establish that the officer had a subjective “belief that there is an immediate need to aid or assist a person” and that the belief was “objectively reasonable.” State v. McCullough,
Because a determination of whether there was an objectively reasonable belief that there was an immediate need for assistance is a fact specific inquiry, we begin our analysis with a review of our cases involving police responses to apparent domestic disputes.
Conversely, in State v. Agnes,
Based on the circumstances of this case, we conclude that the officers had an objectively reasonable belief that someone inside defendant’s home needed aid, and, thus, the emergency aid exception to the warrant requirement justified the officers’ warrantless entry into defendant’s home. Here, the circumstances suggested that what had occurred may have been more than a verbal dispute. Unlike Mazzola and Fredricks, where there were reports of a “loud argument, yelling, and door slamming” — sounds that standing alone indicate only that a verbal dispute had occurred — in this case there was a report of yelling and sounds of “possible hitting” coming from defendant’s home. Sounds of “possible hitting” are similar to the “banging” noises reported in Agnes and the sounds reported in Tabib of “someone being slammed around,” which indicated that a physical struggle had occurred. Furthermore, in this case, the demeanor of the people whom the officers encountered is unlike
We next consider whether the emergency dissipated when Corning observed that G had only been crying, did not have any serious physical injuries, did not request any assistance, and G only stated that she had been in an argument with defendant. “The inquiry is neсessarily undertaken separately for each case because we consider whether the ‘circumstances present grounds for an officer to reasonably believe that immediate police action is [still] required.’” State v. McDonald,
Here, Coming’s justification when he entered defendant’s home to render emergency assistance was his reasonable belief that G was inside and unconscious or injured to the point that she could not respond or request assistance. As noted above, the trial court found that, when Corning entered the home, “[t]here wasn’t any — any indication of any serious physical injuries, and according to the officer here, there wasn’t any indication of any actual injuries, just that she was clearly upset.” Because there is constitutionally sufficient evidence in the record to support that finding we are bound by it. Ehly,
The state concedes that the inevitable discovery doctrine does not apply in this case, but contends that we may nevertheless affirm by applying the material witness exception to the warrant requirement announced in Fair. Under that exception, a
“(1) the officer reasonably believes that an offense involving danger of forcible injury to a person recently has been committed nearby; (2) the officer reasonably believes that the person has knowledge that may aid the investigation of the suspected crime; and (3) the detention is reasonably necessary to obtain or verify the identity of the person, or to obtain an account of the crime.”
We conclude that the material witness exception in Fair does not apply in this case because the evidentiary record is insufficient to support the material witness exception as an alternative basis for affirmance. In Fair, the officers responded to an aborted 9-1-1 call, which was made by the defendant, and which the Supreme Court considered a “tacit invitation by [the] defendant to come to her aid.” Id. at 599. “The dispatch operator had reported that, during the call, a woman was overheard saying ‘stop it’ and ‘get off me,’ a man was heard yelling in the background, and then the call was disconnected.” Id. at 590. Additionally, “[w]hen the officers initially approached the home, [the] defendant’s husband appeared angry and was uncooperative and evasive.” Id. at 610. Finally, when the officers knocked on the front door and the defendant and her husband answered it, “the officers immediately observed a large swollen area over [the] defendant’s right eye.” Id. Based on those facts, the Supreme Court concluded that the dеtention of the defendant that had occurred when the officers ordered her and her husband out on the porch was reasonable because the officers detained the defendant “with probable cause to believe that [the] defendant’s husband had assaulted her and under exigent circumstances that arose in the context of the officers’ emergency response to an apparent incident of domestic violence.” Id. at 615. The Supreme Court further concluded that, “in ordering [the] defendant to stay on the porch, the officers acted reasonably in temporarily detaining her for purposes of questioning her as a witness to and victim of a recent or ongoing assault,” and “[t]he officers had * * * an objectively reasonable belief that [the] defendant could provide information material to the assault.” Id.
Here, the circumstances are unlike those in Fair. In this case, the officers had responded to a 9-1-1 call from a neighbor who reported “mostly male screaming” and “possible hitting.” That call is unlike the call in Fair, where the defendant herself called 9-1-1, tacitly inviting the officers to come to her aid, and the dispatcher heard her say “stop it” and “get off me,” a man was heard yelling in the background, and then the call was disconnected. Additionally, in this case, at the time the emergency dissipated, there was no indication of any recent physical injuries. Corning observed that G had been crying, was not calm or composed, seemed “kind of frazzled,” did not request any assistance, and only stated that she had been in an argument with defendant, whereas in Fair, the officers immediately observed a large swollen area over the defendant’s right eye. Furthermore, in this case, it was only after continued questioning by Barrington and other officers in defendant’s home that G made the statements about the domestic violence incidents. Finally, we do note that there is one similarity between this case and Fair. Defendant in this case and the defendant’s husband in Fair were both uncooperative and evasive. However, uncooperative and evasive behaviors alone do not indicate that a recent or ongoing assault had taken place. Here, at the time the emergency dissipated, the officers could not reasonably believe that G recently had been the victim of an offense involving danger of forcible injury or reasonably believe that she had knowledge that may have aided the officers’ investigation about a recent or ongoing assault. Thus, this case is not sufficiently akin to Fair for us to conclude that the doctrine articulated in Fair would apply.
“[E]ven if the record contains evidence sufficient to support an alternative basis for affirmance,” defendant “might have created a different record below had the [state] raised that issue” and the “record could affect the disposition of [that] issue.” Outdoor Media,
In sum, the trial court did not err when it determined that the officers had an objectively reasonable belief that someone in defendant’s home was in need of their immediate assistance and that the emergency had dissipated once Corning encountered G in the home. However, the trial court did err when it concluded that the inevitable discovery doctrine applied to allow the officers to remain in defendant’s home and obtain the challenged evidence. Thus, the trial court erred when it failed to suppress evidence seized as a result of a warrantless search of defendant’s home.
Reversed and remanded.
Notes
Article I, section 9, 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 he secure in their persons, houses, papers, and effects, against unreаsonable searches and seizures, shall not be violated!.]”
In his second assignment of error, defendant contends that the trial court plainly erred by admitting evidence of defendant’s prior assault against the alleged victim obtained by the officers during their warrantless search of defendant’s home. Our conclusion on the first assignment of error obviates the need to consider that issue, and, accordingly, we do not address the admissibility of the “other acts” evidence raised by defendant’s second assignment of error.
Before Baker was decided in 2011, cases involving decisions related to the emergency aid exception were decided under the more exacting standard announced in State v. Follett,
We also agree with the concurrence that even if a detention of G was justified under Fair, the officers’ continued presence and search of the home required either a search warrant or a justified exception to that requirement.
We do note that, after the court denied defendant’s motion to suppress, defendant made a further argument on the record, to ensure it was preserved, that the Fourth Amendment would prohibit G from consenting as a co-occupant to the officers’ entry after his refusal, arrest, and removal from the home. (Citing Georgia v. Randolph,
Concurrence Opinion
concurring.
I agree with the majority that police officers’ war-rantless entry into the home occupied by dеfendant and defendant’s wife, G, was justified under the emergency aid doctrine.
As noted, my view of the lawfulness of the officers’ actions departs from the majority’s at the point at which a perceived emergency dissipated. The question then becomes whether — after the once-perceived emergency no longer existed — the officers had justification for remaining in the home that defendant and G occupied even though defendant had earlier objected to their entry. In my view, the officers still reasonably suspected that G was the victim of recent domestic assault. Accordingly, as I explain below, the officers could have remained in the couple’s home to briefly investigate that suspected crime — even over defendant’s earlier objection — had G consented to their continued presence.
Fair allows officers, under “appropriate circumstances,” to detain a person “for on-the-scene questioning” when the officers “reasonably suspect [that the person] can provide material information about a crime’s commission.”
“(1) the officer reasonably believes that an offense involving danger of forcible injury to a person recently has been committed nearby; (2) the officer reasonably believes that the person has knowledge that may aid the investigation of the suspected crime; and (3) the detention is reasonably necessary to obtain or verify the identity of the person, or to obtain an account of the crime.”
Id. at 609.
On that point, I agree with the state; that is, I agree that the trial court did not err when it ruled that the officers reasonably suspected “that some altercation occurred.” My conclusion is based on the circumstances that the officers observed both before and after they entered the house. The officers arrived at defendant’s home only a few minutes after getting a 9-1-1 report of screaming that was “mostly *** male” and that may also have involved hitting. When they arrived, they could see (through a screen door) defendant sitting on a couch, with nobody else visible. Defendant, who was intoxicated, denied that anybody had been screaming and denied that anybody else was in the house. He refused to allow officers to enter. After one officer removed defendant, the other officer, who had remained in the living room of the home, called toward the back of the house, but got no response. Only after the officer started walking toward the back of the house, identifying himself as a police officer, did G emerge. G appeared to have been crying, and she seemed “shaken” and “frazzled” to the officer, who testified that, based on his training and experience, G’s demeanor was consistent with being a victim of domestic violence.
In my view, those circumstances combined to give the officers at least reasonable suspicion that defendant had recently assaulted G. Put starkly, the officers had quickly responded to a 9-1-1 report of sounds consistent with a domestic assault, found an intoxicated man who denied that any such noise had occurred and tried to prevent officers from investigating further, then — after entering the house— discovered that the man had lied about nobody being inside, presumably because he did not want the officers to find G (who had, herself, apparently been trying to hide from the officers) in her shaken, frazzled,
As defendant points out, however, that conclusion would not end the inquiry. In Fair, the investigative detention occurred outside of the defendant’s home.
In my view, the police officers in this case could have remained inside the home if G had consented to their presence, despite defendant’s earlier objections to the officers’ entry. That much is clear under the Fourth Amendment to the United States Constitution. True, the United States Supreme Court held in Georgia v. Randolph, 547 US 103, 122-23,
“If a possible abuse victim invites a responding officer to enter a home or consents to the officer’s entry request, that invitation (or consent) itself could reflect the victim’s fear about being left alone with an abuser. It could also indicate the availability of evidence, in the form of an immediate willingness to speak, that might not otherwise exist.”
Id. at 127 (Breyer, J., concurring).
The theme of Justice Breyer’s Randolph concurrence echoed in an opinion the Court issued several years later, Fernandez v. California, ___US___,
Under those circumstances, the Court held, Randolph's holding that one inhabitant’s “express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant,”
Based largely on consideration of such societal norms, “practical problems” that would be caused by a different rule, and a focus on the rights of the person who does wish to consent to officers’ search of his or her home, the Court concluded that the Randolph exception applies “only when the objector is standing in the door saying ‘stay out’ when officers propose to make a consent search.” Id. at ___,
Fernandez would govern the Fourth Amendment analysis here, had the state established that G consented to being questioned inside the couple’s home. Before Officer Corning found G inside the house, another officer had removed defendant from the residence. At that point, defendant’s earlier objections could not trump any consent that G might have given to the officers’ continued prеsence in her house, once they discovered her inside. No Fourth Amendment violation would have occurred.
I would reach a similar conclusion under the rights-based analysis of Article I, section 9. That is, I would conclude that — had G consented to the officers’ continued presence in her home for the purpose of investigating the suspected domestic assault — the officers could have remained, despite defendant’s earlier objections to their entry. As a cotenant, G would have had actual authority to consent to the officers’ presence in the home. State v. Bonilla,
“Denying someone in [the victim’s] position the right to allow the police to enter her home would also show disrespect for her independence. Hаving beaten [the victim], [the defendant] would bar her from controlling access to her own home until such time as he chose to relent. The Fourth Amendment does not give him that power.”
_US at _,
Nonetheless, the state contends that the Fair rationale necessarily extends to material-witness detentions within the home, at least in the absence of an objection from the witness (here, G). But Fair dealt specifically with the legality of a detention that occurred outside of a home, not officers’ presence inside a рerson’s home in the absence of any authorized consent. Moreover, the court in Fair carefully distinguished warrantless seizures of persons from warrantless searches and seizures of premises and property.
In light of that body of law, referenced in Fair, I am not persuaded by the state’s argument that the material-witness exception to the search warrant requirement extends so far as to allow police officers to detain a material witness in that person’s home absent the person’s consent to be questioned there, rather than in another location, and absent any exigency. Because the state did not prove that G cоnsented to the officers’ continued presence in her home, once the perceived emergency that justified their initial entry dissipated, the state did not establish that the war-rantless search of the house — as opposed to the warrantless detention of G — was justified. Accordingly, I agree that the trial court erred when it denied defendant’s motion to suppress, and I concur in the decision to reverse and remand the trial court’s judgment.
Fair acknowledges that the factors set out above may bear “refinement * * * in future cases” involving factual situations different from those involved in that case. Id. at 609 & n 11.
I note that G’s authority to consent to the officers’ presence in the home for that purpose would not necessarily equate with authority to consent to their search of specific items or areas within it. See State v. Fuller,
Whether one cotenant’s consеnt to police officers’ entry into a home generally can trump another present cotenant’s objection to that entry is a complex question that will bear deeper examination in another case. “Oregon courts ha[d] not specifically adopted the bright-line rule announced in Randolph,” State v. Wynne,
As the state observes, the trial court did find that G did not object to the officers’ presence. But that finding does not assist the state here, as mere acquiescence to police officers’ actions does not equate to consent. State v. Jepson,
Even in the absence of G’s consent to their continued presence in her home, Fair would still allow the officers to detain G to investigate the suspected crime. However, I conclude that they would have had to do so outside of the house. I do not explore in this concurrence whether the officers would have had authority to order G to leave her home for purposes of the Fair detention, or would have had to rely on her cooperation in coming outside if they wanted to investigate immediately, without waiting to obtain a warrant.