State v. MartinState v. Martin
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- Before:
- Schuman
Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII) and reckless driving. She assigns error to the trial court’s denial of her motion to suppress evidence derived from a warrantless entry into her home. The trial court concluded that she consented to the entry by opening the door and running into another room; on appeal, she argues that those actions did not amount to consent. The state responds that the court correctly determined that she consented and that, in the alternative, the entry was authorized by the community caretaking statute,
The following facts are undisputed. Late in the evening of July 4, 2005, a witness called 9-1-1 to report that a car, later identified as belonging to defendant, had been involved in a hit-and-run accident with a parked car. The witness had followed the car to defendant’s home and reported the address. Within five minutes, officers arrived at that address and found the car that the witness had identified. It was parked in the driveway, at a “skewed” angle, apparently having hit the garage door, and was somewhat damaged.
Some of the officers walked around the home knocking on windows, identifying themselves as Portland police officers, and asking the occupant to go to the front door, where another officer was knocking. The officers had two motives: to check on the welfare of the driver and to question her about her possible involvement in the hit-and-run accident. After the officers had been knocking for approximately two minutes, defendant, completely unclothed, flung open the door. Upon seeing that the person who had knocked was a police officer, she turned and ran into a back bedroom. The officers briefly conferred and decided that they had only two options: to enter the home, or to leave. They decided that leaving “a naked person who’s acting strangely, was just involved in a car wreck[,] * * * at midnight, [with] an open door” would be irresponsible, so they entered. They did not consider the option of obtaining a search warrant.
Inside, the officers found the bedroom into which defendant had run. The door was open, and they walked in. Defendant was lying on the bed under a blanket. One of the officers asked her if she was all right; she responded, “I’m so drunk,” and then she vomited. After a female officer helped her dress, defendant was led outside, where she showed unmistakable signs of intoxication. A subsequent breath test registered a blood alcohol content of .15, nearly twice the level of presumptive legal intoxication.
Two of the officers involved in the arrest, including the one who was at the front door when defendant opened it, testified to the above facts at a pretrial hearing on defendant’s motion to suppress all of the statements and other evidence obtained as a result of the warrantless entry into her home. Based on that testimony, the court concluded that, although the circumstances did not present the kind of emergency that would have justified entry under the “emergency aid” exception to the warrant requirement,
We begin with the consent issue because, if we conclude that the court’s ruling on that issue was correct, our
inquiry ends; valid consent would obviate the state’s need to establish that an emergency existed or that the entry was authorized by
“[t]he very purpose of [Article I, section 9, of the Oregon Constitution] was to protect a person’s home from governmental intrusions. This right against intrusion should be stringently protected by the courts.”
State v. Davis, 295 Or 227, 243, 666 P2d 802 (1983) (citation omitted).
Guided by these rules and this precept, we conclude that the state failed to prove that defendant consented to the officers’ entry. It is true that voluntary consent may be manifested by conduct. State v. Brownlie, 149 Or App 58, 62, 941 P2d 1069 (1997). However, it is also true that neither this court nor the Supreme Court has held that a person who merely opens a door to a police officer has voluntarily consented to entry for purposes of Article I, section 9. A comparable situation occurred in only one case, State v. Cota, 66 Or App 650, 675 P2d 1101, rev den, 297 Or 124 (1984). Police had a warrant for the arrest of the defendant. When they knocked on his door, an officer showed him the warrant and informed him that he was under arrest. The defendant “did not resist by word or act and did not attempt to retreat from the doorway. [He] did not invite the officers into the house. Nor did he object to, or resist, their entry. They simply walked in without requesting his consent.” Id. at 653. A divided court held that, regardless of whether the entry was lawful, the subsequently discovered evidence had to be suppressed because the purpose of the entry — to serve the arrest warrant — had been achieved before the discovery. Id. at 654-55. None of the four opinions discussed the issue of consent; instead, the divisive issue was whether the arrest warrant itself provided a justification for the entry. The court again did not confront the issue of consent in State v. Apodaca, 85 Or App 128, 133, 735 P2d 1264 (1987); although the court held that police violated the defendant’s rights under Article I, section 9, by entering an unattended but open door, the state did not argue consent and the court did not discuss it.
Nor does
State v. Voits,
186 Or App 643, 64 P3d 1156,
rev den,
336 Or 17 (2003),
cert den,
541 US 908 (2004), provide significant guidance. The defendant in that case called 9-1-1 to report a “suicide” that was ultimately found to be a homicide. Although we held that an open door amounted to consent for officers to enter, we based our decision on the case’s unique facts: “By calling 9-1-1, reporting a suicide, failing to restrict
In short, whether a defendant consents to police entry when she opens a door and then retreats depends on the particular facts in each case. We can imagine situations in which doing so would amount to a tacit invitation to enter. This is not one of those situations. The incident occurred at night; there was no activity occurring in the home, and it was unlit, thereby negating the possibility that defendant meant to allow the officers in so that they could talk to somebody else. But the crucial fact is that, after opening the door, defendant — completely unclothed — -ran away and retreated into her bedroom. Her haste suggests that she did not want to talk to the police, and that suggestion, in turn, suggests that her actions did not invite them in. Even if opening the door can be seen as consent, it was consent for the officers to enter the house, not consent for them to enter and then, on their own, to roam about. Walking to defendant’s bedroom, in other words, exceeded the scope of any consent that merely opening the door and fleeing might have conferred. Considering all of the circumstances, and acknowledging that defendant’s actions might have sent an ambiguous message, we conclude that the state did not meet its burden of proving by a preponderance of the evidence that defendant’s actions amounted to anything more than passive acquiescence.
We turn therefore to the state’s first alternative argument: that the entry was lawful because it was authorized by
“(1) Except as otherwise expressly prohibited by law, any peace officer of this state, as defined inORS 133.005 , is authorized to perform community caretaking functions.
“(2) As used in this section, ‘community caretaking functions’ means any lawful acts that are inherent in the duty of the peace officer to serve and protect the public. ‘Community caretaking functions’ includes, but is not limited to:
“(a) The right to enter or remain upon the premises of another if it reasonably appears to be necessary to:
“(A) Prevent serious harm to any person or property;
“(B) Render aid to injured or ill persons; or
“(C) Locate missing persons.”
The state argues that this statute independentlyjustifi.es the officers’ action in entering defendant’s home because the officers reasonably believed their entry was necessary to render aid to defendant — that, in other words,
We disagree.
“In this case, the state cannot point to a statute or ordinance authorizing entries by sheriffs or their deputies in response to citizen concern about the safety and well-being of neighbors. We conclude that the deputies were without authority to enter upon defendant’s premises * *
Id. at 239. The court, however, went on to make the following observation:
“Politically accountable bodies might provide statutory or other authority for exercising the type of community caretaking function here contemplated. * * * Such authority might provide for exercising the community caretaker function in a manner that might comply with Article I, section 9.”
Id.
at 240 n 6. Evidently in response to that suggestion and to remedy the lack of a statute expressly authorizing community caretaking activities by law enforcement, the legislature enacted
Thus,
“[t]he constitutional prohibition on warrantless searches, subject to limited exceptions, acts as a limitation on an officer’s actions underORS 133.033. State v. Christenson, 181 Or App 345, 349, 45 P3d 511 (2002). As a result, when an officer’s actions — logically intended to keep serious harm from happening to a person or property — include a warrantless search of a home, the search must fall within one of the constitutional exceptions to the warrant requirement.”
State v. Goodall,
219 Or App 325, 334, 183 P3d 199 (2008);
see also State v. Dahl,
323 Or 199, 205, 915 P2d 979 (1996) (“Whatever the meaning of‘lawful acts’ in the context of
Thus,
Ordinarily, we would undertake the statutory analysis before considering constitutional questions under Article I, section 9. In the present case, however, judicial efficiency requires a departure from that practice. The statutory question — whether the officers’ entry in this case was authorized by
“necessary for them to enter to check on defendant and, if necessary, to render aid to her. They knew that she had been in two automobile accidents, one when she hit a parked car and again when she hit her own garage door. They had arrived at her home within minutes of the first collision, but no lights were on in the house, and she did not respond for some time to repeated doorbell ringing, knocking, and announcing. They were concerned about her, and reasonably so. Her abrupt appearance at the door, naked, and her equally abrupt departure did nothing to alleviate their objectively reasonable concerns.”
As did the Supreme Court in another case involving the scope of
As definitively set out in State v. Follett, 115 Or App 672, 680, 840 P2d 1298 (1992), rev den, 317 Or 163 (1993), police lawfully can enter premises if four conditions are met:
“(1) The police must have reasonable grounds to believe that there is an emergency and an immediate need for their assistance for the protection of life.
“(2) The emergency must be a true emergency — the officer’s good faith belief alone is insufficient.
“(3) The search must not be primarily motivated by an intent to arrest or to seize evidence.
“(4) The officer must reasonably suspect that the area or place to be searched is associated with the emergency and that, by making a warrantless entry, the officer will discover something that will alleviate the emergency.”
To meet the first two conditions, the police officer must subjectively believe that his or her assistance is necessary to protect someone’s life and that belief, evaluated at the time of the entry and not in light of subsequently discovered facts, must be reasonable. State v. Martofel, 151 Or App 249, 252, 948 P2d 1253 (1997). Put another way, the emergency aid exception justifies police action when “objective indicia of a particular individual being in distress * * * suggest[ ] that immediate action [is] required to protect life.” State v. Burdick, 209 Or App 575, 581, 149 P3d 190 (2006). When the state relies on the exception to justify entry into a home, “the state must make a strong showing that exceptional emergency circumstances truly existed.” State v. Miller, 300 Or 203, 229, 709 P2d 225 (1985), cert den, 475 US 1141 (1986).
The trial court’s ruling that no true emergency existed was correct for at least two reasons. First, there is no evidence that any officer believed that entry was necessary to protect defendant’s life. Only two officers testified at the hearing on defendant’s motion to suppress. One described his state of mind before entering as follows:
“[I]f we were to just leave right now because we didn’t feel we could go inside, now we have a naked person who’s acting strangely, was just involved in a car wreck. And now at midnight, an open door and a naked person inside acting strangely, can you leave under those circumstances?”
The other officer testified that he wanted to “make sure [defendant] was OK”; that he was “worried * * * about [her] well being” and wanted to “check on [her] well being”; and
that, after seeing “that the door got opened and that some gal ran inside, and she wasn’t wearing any clothes,” he “was worried about her” so he “chose to go inside to check
Second, even if we could infer that the officers subjectively believed that defendant’s life was in danger and that they had to intervene immediately to protect her, we would not conclude that such a belief was objectively reasonable. At the time of their entrance, the officers knew only that defendant might have been the driver of a car involved in one minor hit-and-run accident with a parked car, after which she drove home; that she bumped into her garage, touching it “lightly”; that she delayed responding to the officers’ requests to answer her door; that, when she did answer, she was unclothed; and that, when she saw them, she ran to her bedroom. On those facts, any belief that defendant’s life was endangered so as to necessitate immediate intervention would not be reasonable.
We have found only two cases in which the emergency aid exception was found to have justified a warrantless search of a conscious and distressed individual’s property based on that individual’s conduct. In State v. De Aubre, 147 Or App 412, 417, 937 P2d 125 (1997), we held that a true emergency justified a warrantless search of the defendant’s “fanny pack” after police learned that the defendant had told a hospital employee that she had ingested a potentially lethal dose of prescription drugs, and that medical personnel needed to conduct the search to determine appropriate treatment. Unlike the present case, De Aubre involved a situation in which the defendant herself confirmed the existence of a life-threatening situation. In State v. McDonald, 168 Or App 452, 7 P3d 617, rev den, 331 Or 193 (2000), police conducted a search of the defendant’s room after observing heroin-injecting paraphernalia near the defendant, noting that the defendant had recent needle marks on his arm, learning from the defendant’s mother that he was a heroin addict who had only recently regained consciousness, and observing that the defendant was “hazy” and not necessarily out of danger from an overdose. We concluded that “it was objectively reasonable for [the officer] to believe that his immediate assistance in determining the amount, variety, and combination of drugs taken by defendant was required to avert a life threatening drug overdose.” Id. at 459-60. Again, the contrast with the present case is clear. Here, police did not testify about defendant’s condition and had no reason to believe that she was seriously impaired, much less in mortal danger.
In sum, the warrantless entry into defendant’s home violated her rights under Article I, section 9, of the Oregon Constitution; she did not consent to the search and it was not justified under the emergency aid exception to the warrant requirement.
Reversed and remanded.
Notes
Article I, section 9, of the Oregon Constitution provides:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
As we discuss below,
“The [statute does] not provide a comprehensive definition of what constitutes ‘lawful acts.’ Attempting an essay on that topic would take us afield needlessly. Whatever the meaning of ‘lawful acts’ in the context of
None of the officers testified that, before entering, he or she had probable cause to believe that defendant had driven while under the influence of intoxicants; therefore, this case does not present an “exigent circumstances” situation based on an officer’s belief that the entry was necessary because evidence of intoxication was dissipating.