*1 6,1989 July and briefs affirmed December Submitted record OREGON, STATE OF Respondent, v. STALBERT, L.
PAUL Appellant. A49452)
(C86-04-31916; CA *2 Gary Babcock, Defender, D. Hall, Public and Lawrence J. Deputy appellant. Defender, Salem, Public filed the brief for Frohnmayer, Attorney Virginia
Dave General, Linder, L. Langer, Attorney General, Solicitor and Vera Assistant Gen- respondent. eral, Salem, filed the brief for Presiding Judge, Richardson, Before and Newman and Judges. Deits,
DEITS, J. specially concurring.
Newman, J., DEITS, J. his convictions for appeals 475.992(1); substance. ORS controlled
possession 475.992(4). court erred in argues He that the trial acquittal. affirm. suppress and for We motions Portland officers searched April, a search warrant. Before pursuant house in north Portland they for one and watched the house executing previously been under sur- hours. The house one-half veillance, doing that the usual method of were aware men would arrive at at this house was two business after which would come light, people and turn on a blue house men purchase The officers saw two drugs. to the house and and, surveillance, arrive, light go during the blue to the back door of the house people come approximately purchase of quickly officer made an undercover leave. One knew that one of during surveillance. The officers cocaine Jones, persons Lee who in the house Robert against whom been involved activities previously An man and woman weapons charges had been filed. unknown in the house. were also *3 door, to and two went to officers went the front
Two escaping. the from The to prevent the back door inside, because to the front could see who went officers One officer knocked heavy blocked the windows. curtains officers, “police search loudly yelled the door and twice on and, response after no more than two They heard no warrant.” window, open seconds, broke the door they broke the front of the entry, came out entered. At the time defendant and bathroom, five of crack cocaine were where bindles crack just had been flushed. Bindles of floating in a toilet that kitchen, and bed- seized from the bathroom cocaine were money his When drugs person. had no rooms. Defendant as he himself Samuel questioned, falsely identified he was the persons told that The woman in the house Johnson. defendant, to in were there assist Jones house, including the in night. very busy that cocaine, and that selling $1,163 cash. in Jones erred in argues that the trial court entry contends that the suppress. He first motion to statute,
of the house and announce violated knock 133.575(2): shall, executing premises,
“The officer entering before authority give appropriate identity, purpose notice of and searched, person to be in of the officer to the or to searched, apparent premises be as case control may be.”
Here, gave authority the officers and identity, notice their pause and then purpose premises. entered The between identity announcement and the was entry two Nonetheless, Ford, in seconds. contrast to State v. (1989), the announcement did not occur
simultaneously entry.1 pause, with There was a very short, though between announcement rec- entry. and As ognized Valentine/Darroch, in State v. 504 P2d (1972), cert (1973), den US 948 discussing requirement announcement constitution, under federal protection by offered requirement is “fewa seconds to * * * prepare entry.” for Because given the announcement was here entry, before the statute was not violated.
Defendant also argues that the and knock announce requirements of the Fourth and Fourteenth Amendment of the United States Constitution were violated.2 He contends that, even though the officers pur announced their pose, they failed to wait a reasonable time entering. before Assuming, deciding, without the knock announce requirements of the federal constitution require officers to finding, challenge, The trial court which defendant does not knock, announce, elapsed officer did did but amount time that “[t]he entry was, it, Staropoli
between the ‘knock-and-announce’ as Mr. calls practical purposes, although diminimous to the effect that for all it [sic] technically ‘knock-and-announce,’ enough lag anything there was not time for happen. <<**** [*] may, “Be that as it the court finds there was a valid search immediately oppor- officer “knocked-and-announced” There went in. was no
tunity occupants premises open for of the to the door.” 2 rights I, 9, argues also Defendant that his under Article section were violated. However, by I, argue rights protected 9, he not does that the Article section are more protected by Amendment, extensive than those the Fourth on which the knock-and- Tweed, (1983). announce rule is based. State v. App Thus, assuming requirements part protection that the knock-and-announce are of the I, 9, by necessary argument separately. afforded Article it section is not to address this
586 here was not entering, a time before reasonable wait a the officers had constitutionally impermissible, because existed, justify- circumstances exigent belief that reasonable entry. Destruction of evidence or ing an unannounced may others police officers or constitute danger to increased Berardinelli, 364, v. circumstances. State exigent (1989). 235, P2d rev den 308 Or reasonably that the officers The trial court found is occupants finding supported be armed. That expected the to of three The officers were aware that one by the evidence. drug past been involved in activities in occupants had One of the officers weapons charges. arrested on had been percent drug in to 90 that, experience, in his testified weapons involved in were found. raids that he been of addition, heavy traffic in and out because of earlier house, quantity a small officers were concerned that that reasonably The officers believed might remain. drugs that destroy illegal substances easily could case, In this premises. were on the they believed entry was neces- reasonably that an immediate believe could and the evidence. There was sary to both themselves protect violation. no constitutional the trial court erred in argues also acquittal for motion drugs were at dispute illegal
charge. He does being sold in the house. He drugs house or that were possession or there no evidence of transfer contends that was attempted any drugs or to deliver conspired or that he “Delivery” is defined as found in the house. * ** actual, attempted transfer from one
“the constructive substance, whether or not of a controlled person another 475.005(8). relationship.” ORS agency is an there 161.405(1) guilty a of an provides a attempt engages a crime when he in “substantial to commit case, of the crime.” In this defendant step toward commission being operated a a that was as arrested in house hours, for at least one and had been there one-half house. He came, apparently purchase during people which time entered, coming he was out of drugs. When floating were found in bindles cocaine which bathroom of crack flushed. Other bindles just toilet
587
the
A
police
cocaine were
at
house.
there told
that defendant had
of
assisting
selling
night.
sufficiency
evidence,
In
testing
we view
state,
light
the evidence in the
most favorable to the
question
any
rational
trier of
whether
fact could have found
beyond
of
a
elements
the crime
reasonable doubt. State v.
703, 609
(1980).
Harris,
P2d 798
A
288 Or
rational trier of fact
intentionally
could find that defendant had
in con
engaged
a
step
duct which constituted
substantial
toward commission
of the crime of
of a
See
controlled substance.
State v.
Boyd,
App
1276,
92 Or
756 P2d
rev den
Affirmed.
NEWMAN, J., specially concurring.
I concur in majority’s conclusion that the trial properly court denied defendant’s motion to I not suppress. do however, agree, with its conclusion that the police did not 133.575(2) violate they ORS when broke down the door “two seconds” or “no more than two seconds” after they announced presence. their
The majority asserts “[tjhere was a pause, even short, though very entry.” between announcement App at 585. The court found that the entered immedi- ately after their knock and announcement. I note that attorney prosecuting conceded the court that what occurred, “may a constitute violation of the ‘knock and announce’ statute.” my view, they violate the statute if enter a
residence, pursuant a immediately to search or after knocking while announcing, Ford, see State v. 99 App Or 1, (1989), waiting without reasonable time after knocking announcing for the to respond. Johnson, See 1465, (D United States v. F Supp 1471 Or 1986). state, It is enough simply as does majority, given announcement was here before entry, “[b]ecause statute was not violated.” Or App majority’s at 585. The interpretation makes statute ineffectual. 133.575(2) hand,
On the other violation because, was not aggravated except rapidity for the conduct was identity, the officers’ announcing their after Ford, Furthermore, if supra. See State v. unexceptional. the level of a constitutional rose to statutory violation here found, had a reason- officers, as the trial court violation, illegal drugs probably quantity small able belief the warrant. That when executed in the house remained if, knocking and destroyed after might have been evidence See State v. immediately. enter they did not announcing, 368, Berardinelli, 235, rev den 308 Or 769 P2d (1989). the court cor- majority with the I also concur acquittal. motion for rectly denied defendant’s