Defendant appeals a judgment convicting him of unlawful delivery of marijuana. ORS 475.860 (2013), amended by Or Laws 2015, ch 1, § 78; Or Laws 2015, ch 614, § 122; Or Laws 2016, ch 24, § 44. On appeal, defendant assigns error to the trial court’s denial of his motion to suppress evidence discovered after police conducted a warrantless search of defendant’s home after removing defendant and his roommate from the house. Officers searched defendant’s home for potential victims of an assault after responding to a 9-1-1 call from defendant’s roommate. In that call, the roommate told officers that he was in a dispute with defendant and that defendant was threatening to kill him. After the officers entered defendant’s home and removed defendant and his roommate, the officers searched the home to determine if any potential victims of an assault remained. Defendant contends that the trial court mistakenly concluded that the officers’ warrantless search of his home after defendant and his roommate were removed was justified under the emergency aid exception to Article I, section 9, of the Oregon Constitution. We agree with defendant and, accordingly, reverse and remand.
We are bound by the trial court’s findings of historical fact that are supported by constitutionally sufficient evidence. State v. Ehly,
Police officers were called to defendant’s house to respond to a disturbance between defendant and his roommate. Officer Sapper, the first officer to arrive, was told by dispatch that a caller and his roommate (later determined to be defendant) were arguing and that defendant was threatening to kill the caller. Because of the volatility of the situation, Sapper chose to wait for back-up when he arrived, rather than enter the house alone. While he was waiting for additional officers to arrive, Sapper monitored the house. While waiting, Sapper could hear crashing noises and defendant screaming, “Get the fuck out of my house.” However, Sapper did not hear any verbal threats of physical harm. Sapper could also see into the house. From his vantage point, he could see a number of objects that were broken on the floor and defendant walking through the house. Sapper could not tell how many people were in the house, however. As he made those observations, dispatch informed Sapper that the caller was now locked in his bedroom, armed with a baseball bat.
While Sapper was waiting for additional officers, dispatch was also in contact with Officer Ellis. Dispatch initially told Ellis that the dispute was between a man and a woman and that there was a lot of screaming in the background of the call. As Ellis traveled toward the house, defendant’s roommate, the caller, came on the line with Ellis and said that he was in a fight with one of his roommates, that he had barricaded himself in his bedroom with a baseball bat, and that he was preparing to defend himself. Ellis also noted that, while he was talking to defendant’s roommate, there was a lot of screaming in the background.
Eventually, additional officers arrived at the scene. Sapper and the newly arrived officers approached defendant’s door and stood on the porch, planning what to do. While on the porch, Sapper heard additional crashing noises and what he believed was the sound of a person kicking in a door. Based on those noises and the knowledge that the caller had acquired a bat to defend himself, the officers entered the house through the unlocked front door.
As the officers entered the house, defendant walked toward them with a large kitchen knife in his hand. Sapper pointed his pistol at defendant and told him to drop the knife. Defendant complied. Officers then handcuffed defendant and asked him if there was anyone else in the house. Defendant responded, “No. It’s my house. You can’t go in.” Sapper then removed defendant from the house.
At that point, Sapper was still uncertain how many people were in the house, but
After the roommate was removed, the officers called out to see if anyone else was in the home. No one responded, and the officers did not hear any other noises that suggested that anyone else remained in the house. However, rather than leave, the remaining officers proceeded to search the house for potential unconscious or dead participants from the earlier dispute. At no point before or during their search did the officers find any signs of personal physical injury, such as blood, in the housé. They did notice what they perceived to be knife slashes on the doorjamb of the door behind which defendant’s roommate had been locked.
After clearing the rest of the house, Sapper and Ellis decided to search defendant’s basement. In the basement, the officers discovered a large number of marijuana plants. After finding the marijuana plants, officers continued to search the basement for any unconscious or dead disputants. Finding none, the officers contacted the Drugs and Vice Division to report their discovery of the marijuana.
Based on the officers’ discovery of the marijuana during their warrantless search, defendant was indicted for unlawful delivery of marijuana and other charges. Defendant moved to suppress all evidence that the officers found as a result of the warrantless search of his home that took place after defendant and his roommate had been removed.
At the suppression hearing, only two of the responding officers testified, Sapper and Ellis. Both officers testified as to their state of mind at the time they decided to continue their search, after defendant and his roommate were removed from the house. Sapper stated that he believed that the continued search was necessary “[t]o determine if there’s anybody in the house that’s injured.” Similarly, Ellis testified that he believed that continuing the search was necessary “to find potential victims, to see if anybody else was in the home, if anybody was hurt, if they needed aid.” Importantly, the officers did not testify that they believed that a potentially injured victim remained in the home after they removed defendant’s roommate. Instead, Ellis testified that he merely speculated that more people could have been in the house because “you never know who else or how many other people are in the home.”
Based on Sapper’s and Ellis’s testimony, the state argued against suppression of the evidence of marijuana found in the basement, claiming that the officers’ continuing search was justified, even after the removal of defendant and his roommate, under the emergency aid exception to the warrant requirement. In response, defendant argued, as he does on appeal, that, once defendant and his roommate were removed from the home, the officers lacked both a subjective and objectively reasonable belief that anyone else remained in the house who required emergency aid. The trial court agreed with the state and denied defendant’s motion to suppress. After the court’s initial denial, defendant filed a renewed motion to suppress. The court denied defendant’s renewed motion as well.
Defendant eventually pleaded guilty to one count of unlawful delivery of marijuana. In his plea petition, defendant reserved the right to appeal the trial court’s orders denying his motion to suppress and his renewed motion to suppress. See ORS 135.335(3) (providing for conditional pleas). This appeal followed.
Before us, defendant argues that the trial court erred in denying his suppression motion. Defendant asserts that the record does
We review a trial court’s decision to deny a motion to suppress for errors of law. Ehly,
“[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). Under Baker, to satisfy the emergency aid exception, the state must prove both that, at the time of the warrantless search, the searching officers had the subjective belief “that there was an immediate need to aid or assist a person who has suffered (or is imminently threatened with suffering) serious physical injury or harm” and that that “belief [was] objectively reasonable.” State v. McCullough,
We begin by noting that defendant concedes, as he did below, that the officers’ initial entry into his home was justified by the emergency aid exception to the Article I, section 9, warrant requirement. Defendant argues only that the officers’ continued search of his home after he and his roommate were removed was not justified under that exception. See State v. Bistrika,
Determining an officer’s subjective belief is a question of fact. State v. McDonald,
The subjective belief required for the emergency aid exception to apply is the belief that a search is necessary because there is “an immediate need to aid or assist a person who has suffered (or is imminently threatened with suffering) serious physical injury or harm,” not the belief that a search is necessary to discover if there is an immediate need to aid or assist a seriously injured person. See McCullough,
The belief that a person who is seriously physically injured (or imminently threatened with suffering serious physical injury) and requires immediate aid actually exists, as opposed to the belief that such a person possibly could exist, “is significant because whether an emergency exists depends on whether immediate action is required (something that will alleviate the emergency), which, in turn, depends on the relationship between the gravity of the harm to be prevented and the probability that the harm will occur if action is not taken.” State v. Burdick,
Our reasoning in McCullough further illuminates that distinction. In McCullough, an officer was dispatched to investigate the defendant’s truck, which was parked facing the wrong direction on a highway. Id. at 497. When the officer arrived at the scene, he determined that the truck had been traveling in the correct direction on the highway before it drifted into the oncoming lane, hit a pile of large rocks on the shoulder, “flipped around a little bit,” and came to a rest facing west. Id. (internal quotation marks omitted). The officer noticed “blood droplets and spattering in and around the pickup truck,” but could not find the driver. Id. at 497-98 (internal quotation marks omitted). Based on that information, the officer testified that he knew “that there had been a crash, someone had been hurt, and [his] job [was] to make sure that person [was] okay.” Id. at 498 (internal quotation marks omitted).
The officer then drove to the defendant’s trailer. Id. As he approached the trailer, he saw more drops of blood, and, through a window next to the door, the officer could see blood splatters in the trailer’s entryway as well as “a rag smeared with blood on the floor.” Id. The officer knocked on the trailer’s door several times and announced that he was a police officer; however, no one responded. Id. At that point, the officer testified that he believed that he “needed to make sure that the person [who] was in the wreck was okay and to check on their well-being.” Id. (brackets in original; internal quotation marks omitted). Based on that belief, the officer opened the trailer door and went inside. Id.
In this case, we begin by noting that no one disputes—and there is no evidence in the record indicating— that the officers believed that anyone remaining in the house after defendant and his roommate were removed required their immediate assistance because they were “imminently threatened with suffering [] serious physical injury or harm.” Baker,
Those statements of intent, like the officer’s statement in McCullough that he entered the house to “make sure that defendant was okay” and to “check on [his] well-being,” were not statements that they believed their continuing search of the home was necessary because someone was suffering from a serious physical injury and required their immediate aid. Instead, the officers’ statements indicate that, at best, they were uncertain if another person was located in the house and, further, that, if that person were in fact present, they were uncertain whether that person would be seriously physically injured.
Consequently, as in McCullough, although the officers’ belief that the continued search of defendant’s home was necessary “[t]o determine if there’s anybody in the house that’s injured” reveals “well-founded speculation that perhaps” there was another person in the house and that perhaps that person was injured, that belief falls “short of evincing that [the officers] believed that [their] intervention was necessary to protect [a person] from the effects of serious physical injury or harm.”
In light of our conclusion that the officers lacked the subjective belief necessary to continue to search defendant’s home, we need not address whether any such belief would have been objectively reasonable.
In conclusion, the officers’ warrantless search of defendant’s house after they removed defendant and his roommate from the home was not justified by the emergency aid exception to the Article I, section 9, warrant requirement because there is no evidence in the record that the officers possessed the subjective belief necessary to avail themselves of that exception. Accordingly, the trial court erred in denying defendant’s suppression motion.
Reversed and remanded.
Notes
Before the Supreme Court’s decision in Baker, this court applied the emergency aid exception using the four-element test we established in State v. Follett,