State v. Jordan

Argued reargued April and submitted 5, 1979, January affirmed November OREGON, STATE OF Respondent, JORDAN, aka NADINE Adams, Juanita Petitioner. (CA 25930) 8349, SC

605 P2d 646 Mountain, Jr., James E. Deputy Defender, Public Salem, argued reargued the for petitioner. Babcock, With him the briefs Gary was D. Public Defender, Salem. Benny Won,

W. General, Salem, Assistant Attorney argued and reargued the cause for respondent. With him Redden, on the brief were James A. Attorney General, Barrie, L. General, Walter Solictor Salem.

HOWELL, J.

LINDE, J. dissenting.

HOWELL, J. question appeal on this principal presented dwelling a whether a obtaining an arrest to execute warrant without search warrant. are

The facts and arrest surrounding Jordan, Davidson, Florine Sandra largely undisputed. and defendant Nadine Jordan resided in a house in northeast Portland. Defendant is Sandra Jordan’s sis- 15, 1977, January ter. On the house was approached officers, two Portland Ault and Sam- by Charles Rosson, Ray who had an my outstanding Sandra Jordan’s arrest. Ault had learned from reliable sources that Sandra living was believed to be at driving yellow house and she was to be thought Pinto automobile. On the evening yellow question, Pinto was Ault parked driveway of the house. and Rosson called for surrounded reinforcements who the house. The two then went to the front door and were met Florine Davidson and defendant Nadine Jordan. The officers stated their and asked purpose the women for their names and some identification.

Defendant Nadine Jordan identified herself as "Juanita Adams” but refused produce any to identifi- cation. Both women refused to let the search the residence. The officers returned to their vehicle ran a record check on Juanita Adams. The name was knowing as an alias for Sandra Jordan. reported Not Jordan, whether defendant was Sandra the officers in- custody, returned to the house and her into took finger- to establish her means of tending identity by at the printing police station. car, in

While seated Office Ault observed mug a shot of Sandra Jordan and was uncertain he had the He the other officers right person. ordered to return to the house to see if there was another there who was Sandra Jordan. actually officers entered the house a search warrant without found in the attic. eventually hiding Sandra hindering with charged prosecution,

Defendant was trial, she filed a motion to Prior to ORS 162.325. the entry seized as a result of any evidence suppress to sought suppress The evidence she into her home. Jordan. The trial court was the of Sandra trial, and, a defendant following denied motion on of error assignment Defendant’s sole was convicted. have suppressed is that the trial court should appeal a result of a search without the evidence obtained as search warrant. convic- affirmed defendant’s

The Court of Appeals on the focused principally tion an opinion to had cause probable of whether the officers question residence after was still believe Sandra Jordan 45, custody. App into 36 Or had taken defendant the officers The court found 583 P2d 1161 was entry and that did have such cause 133.235(5), pro- which under ORS justified therefore vides: arrest, peace

"In order to make to he has in which present.” to be arrested to be believe the this written prior was opinion The Court of Appeals’ Olson, P2d 287 Or decisions in State court’s Peller, P2d 684 (1979), Or and State v. (1979), private that an into in which we held warrant, jus- was an arrest home to without existence of showed the tified if the state only nor Peller decided Olson circumstances. Neither to an arrest in addition whether a search warrant premises. necessary to arrest squarely presented. That is now question

I the failure of the police contends that Defendant her resulted to enter obtain a search warrant constitutional statutory her and in a violation in constitutional question to the turning Before rights. law to case, Oregon statutory first examine this we the defendant by claimed right determine whether ^[394] by legislation. in this in fact See State protected case is (1979). 305, P2d 815 286 Or ORS Spada, in part: 133.535 provides, subject are to search and seizure following

"The authorizing [statutes warrants]: under search « ^[*] * * * *

"(4) A arrest there is whose unlawfully held in concealment.” cause or who is Although permits this statute the issuance of search to an officer to arrest a seeking suspect the statute does not to re private premises, purport such a warrant. We conclude from this that quire Oregon statutes do not an officer to obtain require entering search warrant home prior arrest.1

II We now consider the defendant’s claim that I, conduct this case violated article section 9 of the Oregon Constitution2 and the fourth amend ment to the United States Constitution.3 Both these constitutional identical provisions, substantially language, protect against unreasonable searches and seizures. apparently by This view was shared the members of the commission Proposed Oregon §

that drafted ORS 133.535. See Criminal Procedure Code (Final 1972). Report position Comment A Draft and It is also the taken by Procedure, Pre-Arraignment § the drafters of the ALI Model Code SS commentary, 124-25, 210.3 and at 506-07 I, Oregon provides: Article section of the Constitution right people law "No shall violate the of the to be secure in their houses, effects, search, persons, papers, against and unreasonable or seizure; cause, upon probable supported and no warrant shall issue but oath, affirmation, describing particularly place or and to be searched, thing and the or to be seized.” provides: The fourth amendment to the United States Constitution houses, right people persons, "The of the to be in their secure effects, seizures, papers, against unreasonable searches and shall violated, issue, cause, upon probable not be and no Warrants shall but affirmation, supported by particularly describing place Oath or searched, persons things to be and the to be seized.” recognized law while the common As background, castle,” it held that his also man’s house is "every against can have a castle with a crime charged "no one for his arrest.” Wil the warrant State’s King’s 541, Warrant, L Rev 22 Mich Without a gus, Arrest (1816). A Law (1922); 1 51-59 Chitty, Criminal 800-01 was there with an arrest warrant officer armed peace to effect an dwelling to enter a permitted fore suspect to believe the if had reason arrest the officer of whether regardless the dwelling, was inside had a search warrant.4 officer also has left unset Court Supreme The United States circum and under what whether question tled make private premises enter stances an officer Watson, v. 423 States a warrantless arrest. See United (1976); 820, 6, LEd 2d 598 411, n. 96 S Ct 46 US 418 854, 13, 103, n. 95 S Ct v. 420 US 113 Gerstein Pugh, 403 (1975); v. New Coolidge Hampshire, L Ed2d 54 43 (1971). 2022, L Ed 2d 564 443, 474-81, 29 US 91 S Ct however, exigent absent held, This court has before required an arrest warrant circumstances to make private premises officer 5 Olson, Peller, supra. v. v. State supra; arrest. State Olson, we supra, v. court decided State When this Supreme States the United relied on particularly 4 Wilgus, warrant was not According even an arrest to Professor merely necessary that the necessary by It authorities. was considered most rights. Wilgus, Arrest making acting lawful party be within his the arrest (1922). 541, Landyns- Warrant, also i. 802-03 See 22 Mich L Rev without a ki, This meant Supreme 26-27 and the Court Search and Seizure felony if for a warrant to arrest enter without that an officer could felony suspect had committed had cause to believe premises to be suspect within the was cause to believe 820,46 411,418,96 Watson, L Ed Ct Cf., US S States v. entered. United (1976) citing (discussing numerous law rule and the common 2d 598 authorities). (1962), 259, 265, Chinn, held this court 373 P2d 392 v. 231 Or In State suspect’s home enter the warrant could armed with an arrest that officers opinion notes that warrant. The had a search whether or not obtained * * by *.” We statute permitted at law was "both common such an question defendant raised the constitutional did not discuss present case. Court opinion Coolidge New Hampshire, supra, from which quoted: we "* * * The case of Hayden, supra [387 Warden v. 294, 1642, (1967)],

US 87 S Ct 18 L Ed 2d 782 where the Court elaborated a 'hot pursuit’ justification for police entry into the defendant’s house without for his certainly by negative stands implication for the proposition that an arrest warrant * is required in the absence of circumstances. * *” added). atUS 480-81 (emphasis We also relied on People 263, v. Ramey, 16 3d Cal 629, Cal Rptr 545 P2d cert. denied 429 US 335, 97 S Ct 50 L Ed (1976), 2d 299 from which we quoted the following: " * * * [I]n the absence of a emergency, bona fide enter, police consent to action seizing the indi-

vidual in the home must preceded by judicial be authorization of an arrest warrant. ”545 P2d at 1340 added). (emphasis

Many federal and state courts have held that a officer enter private premises to execute a valid arrest warrant as long as the reasonably officer believes that the subject of the arrest warrant is on the premises. See, e.g, Woods, United States v. F2d 560 (5th 660, 1977), 665-66 Cir 906,98 cert. denied 435 US 1452, S Ct 55 L Ed 2d (1978); 497 United v. States (10th Harper, 610, 550 F2d 613-14 Cir), denied, cert. 837, 434 128, US S98 Ct 54 L (1977); Ed 2d 99 United Cravero, States v. 406, 545 F2d on pet. rehearing, (5th 545 F2d 1976), 420 Cir denied, 983, cert. 430 US 1679, 97 S Ct L (1977); 52 Ed2d 377 v. United States James, (5th 999, 528 F2d Cir), denied, 1016-17 cert. 959, 429 382, US S Ct (1976); 97 50 L Ed2d 326 Rice v. (8th 1280, Wolff, 513 F2d 1975), 1291-92 Cir rev’d. on grounds other Powell, 465,96 sub nom. Stone v. 428 US 3037, S Ct L49 Ed 2d (1976); 1067 United States v. (5th Jones, 723, 475 F2d 729 1973); Cir v. Rodriguez (5th Jones, 599, 473 F2d Cir), denied, 605-06 cert. 412 953, 3023, US 93 S Ct L (1973); 37 Ed2d 1007 United Brown, States v. 365, 369-370,467 151 US App DC F2d (DC 419, 1972); 423-24 Cir United v. States (6th 1967); McKinney, 259, F2d United 379 Cir 262-63 (6th 1965), Alexander, cert. 346 F2d 561 Cir States v. (1966); 993, denied, 575,15 S L Ed2d 480 382 US 86 Ct (1979); Platten, 764, v. 225 Kan 594 P2d 201 State (1966); State, 438, 364, Md 221 A2d 368 Nestor v. 243 (1977); App State, 430, A2d v. 35 Md 371 433 Cook Jemison, 47, v. St 2d 236 NE2d 538 State Ohio (1968); App Clark, 365, v. 2d 319 NE2d State 40 Ohio (1974); Sup Terebieniec, 268 Pa Commonwealth v. (1979); McNeal, 488, 408 A2d 1120 State v. er Ct (W 1978); App App People Stibal, Ill Va v. SE2d 484 14 Ill Dec 372 NE2d 931 3d supra, Cravero, held In United States v. the court "when an officer holds a valid arrest warrant premises reasonably subject believes that its is within belonging party, a third need obtain a search he arresting purpose to enter for the suspect.” v. Accord, States 545 F2d at 421. United supra. supra; Harper, Woods, United States has reasoned who Cravero court already deter an arrest warrant —a obtained suspect that a mination of cause to believe that the an "determine has committed offense— within certain suspect probably without trip magistrate to the and without additional agree F2d at 421. with circumstances.” 545 We holding in and the cases cited above.6 Cravero other 6 approved Supreme that the United has in dicta We note States Court 1682, States, 238,99 holding S in Dalia v. United 441 US Ct of the Cravero hejd (1979), for electronic 60 L Ed2d 177 in which the court that a warrant covertly specific authorization to enter surveillance need not include premises in the warrant. The Court said: described "* ** necessary executing police may find it in a warrant Often judge rights explicitly privacy with considered to interfere executing example, an arrest the warrant. For who issued necessary suspect’s in commonly home find it to enter the

warrant they thereby impinge custody, on both to take him into order privacy See, e.g., States v. United and the freedom of movement. *” * * (on (CA5 1976) rehearing). 406,421 Cravero, petition for F.2d 545 257-58. 441 US at (Continued following page)

[398] Other have held that Fourth Amendment courts to obtain a search warrant to requires police prior an entering premises to effect arrest. See private (9th Prescott, 1343, v. United States 581 F2d 1350 Cir 1978); Gereau, Virgin Government v. Islands 502 (3d 914, 1974), denied, 909, F2d 928 Cir cert. 420 95 US 829, (1975); Jones, 42 L S Ct Ed2d 839 State v. 274 (Iowa 1979); v.State, NW2d 2d 587, 273 Laasch 84 Wis (1978). 267 278 however, NW2d We are of opinion, that is no there constitutional requirement officers who hold a valid arrest warrant have cause to believe subject is located on must also private premises obtain search warrant (Continued from,previous page) Pre-Arraignment We § also note that the ALI Model Code of Procedure (1975) permits private premises 120.6 arrest a a law enforcement to enter to whom he is authorized to if the arrest officer has reasonable person present premises. cause to believe on such The commen- tators wrote " * * * Twenty-five jurisdictions permitting [state] have statutes forcible entries to make arrest which otherwise lawful. The purposes statutes in six states authorize forcible entries for of arrest if felony. the arrest is under a for a The in six statutes states entry warrant, allow if forcible the arrest is under in while two states felony.” the statutes authorize to arrest case of a Id. at 310 (Footnotes omitted.) (commentary). Appendix authorizing entry See also id. at XI. The Kansas statute arrest, (1974), applied Harper, K.S.A. 22-2405 was United States v. 550 (10th Cir), 837, 128, F2d 610 cert. denied 434 US 98 S L Ed 2d Ct 54 99 (1977) Harper Michigan . court also relied on the Cravero decision. The authorizing entry Comp (1948), § statute Mich Law Ann 764.21 (6th applied Alexander, 1965), was in United States v. F2d 561 cert. 346 Cir 993, 575, denied 382 US 86 S Ct 15 L Ed 2d 480 addition, directly In several have courts indicated but have not held police may to arrest if an have arrest (8th See, Houle, e.g., 1297,1300 warrant. United v. States F2d n. 5 603 Cir 1979); Calhoun, (9th 1094, 1976), v. United States 542 F2d 1102 Cir cert. 1064, 792, (1977); denied 429 US 97 S Ct 50 L 2dEd 781 Huotari v. (D 645, Cook, Vanderport, Supp 1974); F 380 650 Minn State v. 115 Ariz (1977) 188, 877, (quoting Ramey, Ramey); People 564 P2d v. 16 Cal 3d (1976) 263, 629, 1333, Rptr (requiring 127 Cal 545 P2d "the warrant”); Moreno, 488, People authorization of arrest v. 176 Colo (1971); 846, LeBlanc, 478, v. P2d 575 Commonwealth 373 Mass 367 NE2d (1977); Williams, 850 (1978) Commonwealth 483 Pa 396 A2d warrant”). ("police should have obtained an arrest premises to execute the enter the before arrest warrant.7 Amend- the Fourth held in Olson

When we premises police private applies to when ment essentially that, exi- arrest, held absent we effect an gent con- circumstances, arrests on process per judicial are se unreason- outside ducted Katz v. Peller, 287 Or at 260. v. See State able. Cf. L 347, 357, 507,19 Ed2d States, US 88 S Ct 389 United (1967). must which a The extent to 576 private prem- approving an arrest on be involved ises, gov- however, our consideration of involves See, in effective law enforcement. interests ernmental supra, 417; e.g., 411, Watson, 423 US United States (Powell, concurring). United J., As the id. at 431-32 explained, Supreme has Court States rights could of individual protection "Maximum of the magistrate’s review by requiring be assured but such a prior to justification factual hand- an intolerable constitute requirement would Gerstein v. law enforcement.” legitimate for icap at 113. 420 US Pugh, supra, every scrutiny cause to search of Judicial unduly suspect place would be located where performance hamper of their duties. suspect as Apprehending not the same a criminal suspect searching A will or contraband. for evidence capture. attempt stay place; to avoid he will in one presents mobility escape to often And this inherent dangers swift that necessitate unforeseeable 7 question whether legal also divided over the are The commentators private premises prior to necessary of search warrant LaFave, See, e.g. 378-86 Search Seizure an arrest warrant. execute Seized, Tanzer, Searching 35 Ohio (1978); the Person to be Rotenberg & for Entry (1974); Note, to Arrest: A Practical Warrantless J 65-71 St L 655,673- Problem, Law Forum 1978 U 111 Amendment to a Fourth Solution Arrests, Constitutionality Comment, Home 76; Warrantless The (1978); Comment, Entry Forcible 1566-67 L Rev Colum Effect Castle, L R167 Eroding 82 Dick Protection Arrest —The Warrantless Warrants?, Arrest (1977); Comment, Death Knell and Santana: Watson (1977); Note, Neglected Fourth Amendment Syracuse L Rev 787 Entries, L Rev 995 23 Stan in Arrest Problem See, McKinney, supra. action. United States v. e.g., The does requirement constitutional of reasonableness mandate we police apprehension that handicap by efforts at the threshold requiring officers to wait the by while hides or flees or officers suspect requiring return suspect to for a warrant to search each time the flees to hide in As one apartment. another house or court that a recently holding police with explained, valid arrest and warrant cause to believe the probable suspect is within may enter to exe private premises cute the warrant: hand,

"We think this rule On the one sound. officers, common dictates in possession sense that law of a warrant, valid authority arrest take hold to * * * steps reasonable to execute warrant. A the contrary rule [requiring warrant] a search would unduly hamper law officers in their performance of Indeed, duties. it would be anomalous a senseless them, restraint upon police permit they when hold warrant, a search by breaking enter a residence down the they door after escape hear sounds of inside, emanating them, from but of require for lack warrant, a search to stand at the helplessly threshold while a suspect named in an arrest warrant secretes * * * himself about the house or On the flees. other hand, the requirement probable of cause to believe the is suspect prevents police within the from indiscriminately entering searching any home * * they where an hope accused may be. Common- Terebieniec, wealth v. supra, A2d at 1126. We believe that will rights pro constitutional be tected as long private as arrest on is premises supported authorization of an arrest 8 McKinney The court reasoned that of an the issuance arrest warrant exceptional obviating an is itself circumstance the need search for a warrant. The court said: " * * * only validly magistrate An arrest warrant when issued probable is convinced that there is to believe named party determination, together has committed offense. This with the mobility suspect, justify suspect inherent of the would search for the provided reasonably the authorities he could on believe be found * *” *

premises searched. 379 F2d 263 cause to and the officer’s be- police warrant United lieve the arrestee is within premises. Brown, Cravero, v. supra; sup- United States States ra; McKinney, supra. United States v. reason- is, course, subject of the officer’s judgment ableness Furthermore, to an pursuant to review. of making is valid only purpose arrest conducting the arrest and not for the purpose Cravero, F2d States v. search. See United general case, 2. "evidence” only 421 n. In the instant at by the was Sandra Jordan —the seized in the arrest warrant. named may enter we hold that officers Accordingly, if have a valid to make an arrest warrant and cause to believe arrest the premises. of the warrant subject present the amendment to the United States Neither fourth I, of the Oregon nor article section Constitution officers also obtain a that requires police Constitution warrant. search

Ill held that officers Appeals police The Court of that Sandra clearly had cause believe probable warrant, Jordan, was in the arrest named The contend that defendant does not premises. believe that had cause to probable never police house, that argues within the but Jordan was Sandra defendant, she was believing once the arrested fact, that Jordan, indicating additional "[s]ome Sandra Sandra, necessary ato not be was might defendant to be the this probable Assuming cause.” finding case, defendant’s contention we do not with agree adduced facts had been her arrest no additional after still believe Sandra was cause to supporting Officer hearing, During in the house. the suppression into the defendant taking that after Ault testified custody, " * ** observed a got in the car and I then looking we for were

mug shot of Sandra Jordan gal custody and was not sure still if the we had in was right I go one. So advised the other officers up back to the house.”

This photographic comparison was sufficient to lead a reasonably prudent person to believe that the defend- ant was not Sandra Jordan and still that Sandra was on the premises.

The defendant argues where an arrest warrant exists for a suspect, only one person is suspect thus when arrested, one whatever probable cause there is to look suspect up. used fact there is a for one person’s however, is, should make no difference as long as there fact, probable cause for both the first arrest and the subsequent search.

In the case, present the officers had cause to believe that Sandra house, Jordan inwas but they did not know for certain which house was Sandra Jordan. They also did not know that the defendant and Sandra Jordan were sisters. Prob able justify the arrest of more than one person if circumstances exist that would lead a reason ably prudent person to believe that each could suspect be the person named in the arrest warrant. The defendant’s at presence the house and her use of the name Juanita Adams were circumstances that sup ported the reasonable belief that defendant Sand was However, ra Jordan. the police officer’s uncertainty regarding defendant’s resemblance to the photograph Jordan, of Sandra sister, her supported reasonable belief that Sandra Jordan was still in the house. The Court therefore, of Appeals, did not err in that holding the police officers had probable cause to enter defendant’s premises.

Affirmed.

[403] J., LINDE, dissenting. value, at face is taken

If the Court’s opinion arrest to hold that appears prepared majority offense, au trivial an warrant, matter for how no any prem into entry officer to force police thorizes named whose, ises, to search for no matter that warrant, cause to believe if he has probable a rule does be found there. Such may the person against protection this state the give people guarantee to they sought that unreasonable searches I, art Bill of Or Const Rights. in the State’s themselves our with Moreover, it is irreconcilable logically sec 9.1 circum exigent under year only of last decision has per when he an officer force may stances no though to make an valid reasons fectly P2d 670 Olson, 598 v. 287 Or arrest warrant. State (1979) Peller, P2d 684 Or and State v. (1979). I therefore dissent. officers Olson, held that supra, v.

State to make a warrant home without not enter a private cause to believe merely arrest upon home, in "hot except is in the seek circumstances or when there are pursuit” Simi- obtained. a warrant can be action before require Peller, although held that supra, State larly, to arrest have had residence, within the to believe he was defendant and to a residence a warrant he not without could the situation "the exigencies arrest unless make the These Or at 262. imperative.” that course made are other- although officers decisions established arrest, an unconsent- make a valid in a position wise invades a sepa- into living quarters ed entry I, § art 9: Or Const in their right people to be secure of the violate the "No law shall search, effects, houses, against or unreasonable papers, persons, and cause, supported seizure; upon probable shall issue but and no warrant place affirmation, describing to be oath, particularly or searched, thing be seized.” right, rate constitutional which be in- right prior judicial only vaded without authorization when preclude circumstances such authoriza- prior tion. distinction between only facts present

those Olson and Peller is that there the officers had grounds themselves valid to arrest the person in this sought, whereas case a warrant had been issued for Sandra Jordan’s arrest. This distinction cannot a different explain entry result as to into forcing someone’s residence without exigent circumstances. As far as a forced private living into quarters concerned, one or the other of the officer’s origin authority to make the arrest is a distinction without a difference.

A officer may arrest a his person on own authority when officer has probable cause to be lieve either that the person has committed a or felony a major misdemeanor or offense, traffic or that has committed other offense in the officer’s 133.310(1).2 presence. ORS This authority depends on no special exigency when the arrest occurs in or public in a place where the officer If right has a to be. exist, cause is found to the arrest is as valid as an arrest under a warrant. Yet objective arresting someone whom the officer has unquestioned arrest, authority to even someone he may per whom sonally have seen committing a not alone felony, does allow him to enter a He residence for the purpose. needs the authorization of a or too judge circumstances Olson, urgent to await such an authorization. State Peller, State v. supra, supra. 133.310(1): ORS "(1) peace A arrest a without a warrant if the

officer has cause to believe that the has committed: "(a) felony, misdemeanor, A A Class for unclassified offense penalty greater equal which the maximum allowed law is to or than misdemeanor, penalty major the maximum allowed for a Class A or a (5) 484.010; traffic offense as defined in subsection of ORS

"(b) Any presence.” other offense in the officer’s such, The existence of an arrest warrant as without more, adds to the nothing underlying premise an arrest. it making Of course relieves officer of for the decision to since personal responsibility he need not know about the reasons for it. anything But all that issuing magistrate has determined an unadorned signing arrest warrant is that he has evidence, presented been ex with parte frequently that suffices to show cause for an hearsay, probable arrest. Often he will have less reliable of knowledge the than an officer under alleged grounds acting ORS 133.310(1). Although the law the use of encourages arrest, citations in lieu of may the warrant be issued for a misdemeanor or a mere violation. ORS 133.110.3 Thus, when a magistrate signs an unadorned warrant of and only, of arrest all he has considered is whether there is sufficient probable evidence of to take control of the named bring individual and her before the nearest matter is magistrate. Unless the attention, to his he has a brought judicial not made determination the of this indi urgency arresting vidual justifies into requires forcing entry her, to search for quarters nor whose private quarters shall be so entered and searched. that, it exactly justification

Yet is this under Olson Peller, must have the advance of a approval magistrate unless circumstances forbid. The existence of cause to the arrest is not make the issue as far as is concerned. Olson and Peller were decided on the premise that officers had cause to make a valid arrest. The existence adequate of an arrest warrant adds new to this. nothing

3ORS 133.110: magistrate "If the is is cause to satisfied there charged complained believe that the has committed the offense of, However, he shall a warrant on a misdemeanor or issue of arrest. charge felony charge of the violation or on a which in the discretion may charge court be considered a misdemeanor at the time sentence is imposed peace he a and serve a citation authorize officer to issue provided in as ORS 133.055.” majority expresses concern about imposing on ar- "handicap” seeking officers to make an rest. But the of a authoriza- requirement prior tion in protect order to is no private householder more of a handicap this than in case Olson Peller. The need to search a in order make dwelling exactly an arrest is as great valid warrantless arrest as for one based on the If existence of a warrant. anything, necessity often seem practical will greater when the officer grounds has to arrest good upon warrant; his own initiative without awaiting unless yet exigent, circumstances are he not force entry. Again, the majority says that the owner or occupant of the dwelling is protected by officer’s reasonable belief be arrested the premises, and further the reasonableness That, this belief subject too, to judicial review. would be the same with or without an arrest warrant. this, But beyond the argument strikes to the core of of a requirement authorizing entry, for the whole point the requirement is that judicial responsibility be exercised entry, before the some hypothetical later proceeding. does majority not the time form specify and the

of the review which invokes as safe- it the If guard. it means that if the the named in person found, seized, is and if evidence is and if he is if and the then have prosecuted, search is found to person having been succeed in the improper, evidence cart majority then the the suppressed, puts Legal before the horse. guarantees against unjustified are searches or seizures not to be measured on search an offender or assumption up turns evidence of an It be too offense. cannot emphasized often that the function and of these effectiveness be of an guarantees must from the judged standpoint ordinary, lawabiding person living quarters whose forcibly searched, have her been entered and over objection or in her absence. If search to be proves

mistaken, must she nevertheless the en- acknowledge try search to be no invasion of her rights? search; That is the criterion of a legal entry and yet judicial scrutiny upon a motion to is irrelev suppress ant when the police found nothing.4 Theoretically such can test issue an action in tort or under the civil laws.5 But rights of the point legal guarantees, and the measure effectiveness, of their to provide security of prior rather than subsequent judicial scrutiny in an except The essence emergency. of the protection precisely that of the right to be secure in their people homes is not to rest only upon reasonable belief of police officers that have force to For entry. such measure security, of the bills rights of would need an article I, amendment; section 9 or a 4th trespass common law Instead, would do. the bills rights of provided judicial warrants advance to search. It must not be forgotten officers have cause to believe that a named an arrest warrant may be found in one of several places. The is seen entering apartment house. May officers insist on entry into each apart- him, ment to look for or force entry without circumstances when no one is at home? An offender is reasonably believed to be hiding out in an isolated condominiums. colony private vacation homes or May officers break into one after another without prior judicial It authorization? will often be natural look for a person sought under a warrant in the homes wife, of his parents, or his or other relatives or friends. Are all of them subject their homes entered having searched, in their absence or over their protests, without a magistrate’s prior determination this should done? The position be the state urged by likely Nor is the claim that an officer’s belief was unreasonable often persuasive to be in when officer fact found the to be arrested. - § A See ORS 30.260 30.300. claim under 42 also a tort USC 1983 is under ORS 30.265.

[408] situations, regardless would extend to all these whether for the arrest warrant are as grounds grave as a homicide or as trivial as traffic unpaid In fines. State also decided Bishop, today, forced into the home of defendant’s mother. What had was a warrant the arrest for her son for for not a number of fines. The rule paying traffic stated in the majority case must be present against tested the entirely possible hypothesis Bishop was not at his mother’s home. When the law provided issuing arrest warrants for traffic offend ers, did it contemplate such warrants authorized a search for the offender home, someone else’s occupant’s absence over her protests?6 In I, order to provide protection of article section 9, it does not follow that the warrant must be de nominated a "search warrant.” Warrants to search for a person "for whose arrest there is probable cause or who is held in unlawfully concealment” indeed are specifically authorized under the search warrant stat 133.535(4).7 utes. ORS Often a magistrate’s grant authority to search for a person in a specific dwelling, such as the case, residence in the would rea present sonably follow this statute. But the search statutory warrant need not be the exclusive form of authoriza 133.235(5)8 tion. ORS shows that did legislature intend it to be. Nor does the constitutional Bishop This issue was not reached in State v. because it had not been raised below.

7ORS 133.535 states: following subject "The are to search and seizure under ORS

133.525 to 133.703: "(4) A for whose arrest there is cause or who is unlawfully held in concealment.” 133.235(5) ORS states: peace "In order to make an which he has cause to believe the to be arrested to be present.” It de- guarantee put type label the of warrant: that the only mands warrant describe the to be place searched as well as the to be seized. As person Judge wrote for the Circuit Duniway recently federal Ninth think, however, on this issue: "We that the distinction between a search warrant and is an an arrest warrant artificial one. The Fourth makes no such Amendment Prescott, distinction.” United States v. 581 F2d But the of our constitu- presence own have to guarantee, Oregon tional citizens should not turn to federal law for protection.

Thus the state’s concern about a "two warrants” to make an arrest is For requirement exaggerated. the constitutional it is immaterial whether purposes authorization to enter is in a judicial sepa- contained rate document entitled a "search warrant” or the same warrant the arrest. If officers who authorizing seek an arrest warrant want to enter and authority look the resi- offender at a suspected particular dence, ask to they may have this included showing warrant cause to upon expect If to be found there. can show person to search in more than one this too can be place, included in the initial warrant. If the information is issued, it after the initial arrest warrant is acquired can be amended or a new one issued. The constitution- al is a matter of forms. Its requirement crux is that a has made a decision to magistrate search, his authorize an unconsented entry upon that of independent judgment importance making the arrest and the of probability finding can Only be arrested it. such a justify requirement control the kind simultaneous maintain of of in each of private quarters or seriatim searches reasonably offender be suspected might which found. that

Other courts have discussed the circumstances an unconsented make an arrest. may permit entry to (1) These include the nature and of the offense gravity (2) arrested, the officers’ to be for which (3) delay is armed and the suspect knowledge (4) others, strength danger pose would is in the premises the person reasons to believe (5) entered, will the likelihood that being (6) the circumstance delayed, if the escape unconsented, is made though peaceably the entry, State, See, 272 Md Nilson v. e.g., rather than forced. (1974), v. United A2d 301 Dorman quoting Johnson, (1970); States, F2d 385 State v. 1975). (Iowa A of these cir- combination NW2d 477 action justifying cumstances create exigency obtained, the rule of warrant can be satisfying before a and above. State v. Olson State v. Peller discussed However, no such circumstances are claimed Sandra to exist in this case. warrant was to arrest failure to There appear charge. Jordan for another There is urgency was no to make the arrest. apparent that, no claim that she was armed or dangerous house, she was in the she could have fled assuming the officers war- unnoticed while awaited a further rant. If the bare existence of au- an arrest warrant search, entry thorized this forced and it would au- thorize forced and search entry upon probable anywhere. Such rule cannot be reconciled with Peller, and Accordingly, rule of Olson supra. went beyond authority search the officers’ and its should have suppressed. fruits been

Denecke, J., Lent, J., C. in this dissent. join

Case Details

Case Name: State v. Jordan

Court Name: Oregon Supreme Court

Date Published: Jan 22, 1980

Citation: 605 P.2d 646

Docket Number: CA 8349, SC 25930

Court Abbreviation: Or.