*1 Argued January and submitted reversed and remanded December OF OREGON, STATE Appellant, v.
RUDY PARRAS, NINO
Respondent.
CA A65259)
(89-CR-0221-15;
David C. Glenn and respondent. the brief for Joseph, Presiding Judge, Chief Richardson,
Before Judge. Judge,* Deits,
DEITS, J. concurring.
Joseph, specially J.,C. J., Newman, J., vice
* Joseph, deceased. C.
DEITS, J. appeals pretrial suppressing The state a order evi- 138.060(3). charged dence. ORS Defendant was with three attempting unlawfully deadly weapon counts of use a against person, driving another 166.220; ORS under the intoxicants, 813.010; influence of ORS three counts of reck- endangerment, menacing, 163.195; less ORS three counts of degree 163.190; ORS criminal second mischief. ORS successfully suppress 164.354. He moved to all of the evi- police parked pickup from a dence seized truck. We reverse. approximately a.m., at 10, 1989,
On 1:57 November police complaint from a citizen that he Prineville received pickup. by at with a rifle two men in a He had been shot gave police the license described the men and the vehicle and responded to the call and number. Officer Arrowsmith approximately “Pastime Tavern” at 2:05 checked behind the suspected Officer also vehicle was not there. a.m. approximately responded found and, a.m., to the call at 2:25 blocking parked the drive- behind the “Pastime” vehicle *3 way. him asked to meet behind He contacted Arrowsmith and the tavern.
Toney parking that testified that the lot was lit and easily the vehicle. He also said that there he could see inside parked the cars and that there dark shadows amidst were Toney people walking about. knew that the were a number of examining registered the to Jesus Parras. While truck was truck, there was a it unlocked and that he noticed that was passenger leaning against barrel seat with the rifle the Toney empty casings pointed up. on the floor. He also saw opened time, the that he smelled the door and seized rifle. At gun powder. “freshly two or three Arrowsmith arrived fired” tavern, where then entered the minutes later. Both officers being partici- suspected they of a Patino, who was arrested They pant shooting. the until did not find defendant in the day. deputy had arrived after the officers A sheriff next arresting Patino, Arrowsmith After entered the tavern. caliber seized two .22 searched it and truck, to the returned casings empty truck. the floor of the from and three bullets may although have been that, there The trial court concluded
203 vehicle, the there no exigent cause to search were probable the warrantless search and seizure. justifying circumstances The error to the trial assigns suppres state court’s the We that there was probable sion of evidence. conclude the rifle cartridges belief that and support Toney’s cause to of that in were evidence the crime he that he saw the pickup However, is cause alone not investigating. probable was and There to a warrantless search seizure. enough justify of circum also be an individualized showing exigent must (1986). Kock, v. stances. State 33, Or 1285 29, 725 P2d presents exist when a situation a Exigent circumstances life, damage property, a of serious a danger threat escape of a or a threat of destruction or possibility suspect’s Stevens, evidence. State v. 119, 126, 806 loss Or P2d 92 of contends that the seizure the rifle state of and the by exigencies of were the of smelling gunpowder justified and need to the evidence.1 We safety preserve agree officer the with the believed the pickup state’s contention. that Toney rifle had been involved in á recent that a had shooting seat, been He rifle the against passenger used. saw a leaning truck immediately barrel accessible. The was up When entered the and seized the Toney pickup unlocked. in it was after a.m. and there were other the rifle, people 2:25 were, he was suspects He did not know where the two area. had not arrived. yet alone Arrowsmith gen- had a only
Defendant
contends
that
the
interfere with
evi-
might
eralized concern that someone
Nicholson,
State v.
In
dence before Arrowsmith could arrive.
rev den
(1988), on
Toney just in the have may that he believed to have been involved crime in a motive to interfere with been the immediate area and had concern for his the truck. had a Toney legitimate safety for the of evidence. preservation that the here created an
We conclude
circumstances
that
of the vehicle and sei-
exigency
justified Toney’s entry
Bass,
zure
the
98 Or
778 P2d
of
rifle. See State v.
The trial court should not
rev den
The state also that Arrowsmith’s of arrest and his seizure the after Patino’s entry pickup into the basis of cause justified probable the was on cartridges as to dispute probable There is no exigent circumstances. no conclude, however, exigent that there were cause. We By the cartridges. seizure of the support circumstances to to the and seized pickup that Arrowsmith returned time of the scene and one had arrived at them, two other officers cartridges in the tavern. had been arrested suspects the Further, the had. safety gun threat did not the present officers for one of the time, possible have been at the it would could be until a warrant the vehicle or secure guard vehicle, for the either to enter necessary It was not obtained. Accordingly, the evidence. or to safety preserve officer cases was cartridges of trial court’s suppression proper. remanded.
Reversed and J., JOSEPH, concurring. C. specially actions, I warrantless to Arrowsmith’s respect or cause probable that there was no majority with the concur basis for them. circumstances exigent
205
respect
Toney’s
disagree.
activities,
I
Once
again, majority
department
purported police
ofthis
raises
constitution-overriding
fear
level of a
excuse.1
1See, e.g.,
Ehly,
456,
(1991);
App
State v.
109 Or