The question in this case is whether, under either Article I, section 9, of the Oregon Constitution, or the Fourth Amendment to the United States Constitution, it was lawful for a police officer to kick in the door of defendant’s residence and arrest him without a warrant after the officer developed probable cause to believe that defendant had driven his car while intoxicated. The trial court concluded that the warrantless entry was lawful on the ground that immediate police action was necessary to protect defendant’s young son from a threat of harm. In this appeal by defendant challenging his resulting conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and one count of recklessly endangering another person, ORS 163.195, the state mounts only a token effort to argue that the trial court’s conclusion on that point was correct. Instead, it identifies a different “exigent circumstance” that justified the warrant-less entry — that evidence of defendant’s intoxication was dissipating. Relying on State v. Machuca,
The facts are undisputed. Defendant was at the grocery store with a young boy, later determined to be his then-seven-year-old son. A store clerk perceived that defendant was drunk. He followed defendant out to the parking lot, where he observed defendant and his son get into a car and drive away. The clerk took note of the license plate number and passed that information along to police, who determined defendant’s home address, which was at an apartment complex. Officer Burke arrived at the complex and observed a parked car with the license plate that he sought. After Burke got out of his car, he heard a male voice “yelling in slurred fashion.” The officer turned and saw a man, defendant, standing on a flight of stairs; defendant matched the description of the suspect that Burke had received. Defendant was with his son, who Burke perceived to be “pretty young,” perhaps seven years old.
Burke arrived at the door almost simultaneously with two other officers. He pounded on the door and demanded that defendant come out. There was no response. Around that point, Burke learned from dispatch that defendant had a concealed weapons permit. He got in radio contact with his sergeant and announced his intention to break down the door; the sergeant agreed with that course of action. Burke testified that, at that point, his uppermost concern was the safety of the child. Burke took a few seconds to brief his fellow officers about the tactics that they would employ in entering the apartment; he then kicked the door in and called for defendant to come out. Hearing no response, the officers entered with their guns drawn. Defendant came forward and was arrested. At some later point, defendant refused Burke’s requests that he submit to tests to detect alcohol in his system.
As noted, defendant was charged with one count of DUII and one count of recklessly endangering another person, based on his having driven with his son in the car while under the influence. He filed a pretrial motion in which he sought to suppress all evidence derived from the entry of his home, claiming that the evidence was the product of unconstitutional police action under both Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The court held a hearing on that motion, at which the state argued that certain exigent circumstances justified the warrantless entry. The exigencies cited by the state were a threat of harm to the child, the need to prevent the destruction of evidence of defendant’s intoxication, and the fact that the police were in “hot pursuit” of defendant at the time that he retreated into his apartment.
At the hearing, Burke was questioned about whether he could have obtained, over the phone, a warrant that would have granted him the authority to enter the apartment before he kicked in the door. On that point, the trial court found as follows:
“Officer Burke at hearing testified on cross-examination that telephone warrants are not available in Washington County and that the Beaverton Municipal Court does not issue search warrants. The officer did not attempt to get a warrant by telephone in this case, nor has he at any other time. The officer testified he knows because of his training and experience as a Beaverton officer that telephone warrants are not given in his jurisdiction. That evidence is uncontroverted.”
The court then turned to its legal conclusions regarding the exigent circumstances identified by the state as those that justified the warrantless entry. The court first concluded that the potential loss of the evidence of defendant’s intoxication could not support the warrantless entry, stating:
“When a warrantless search is challenged *** the State must prove that a warrant could not be obtained in time to prevent the loss of evidence of intoxication. In this case the defendant is charged with DUII and Officer Burke has testified that he could not obtain a warrant by telephone because such things do not exist in this jurisdiction. There is no evidence what-so-ever as to whether a warrant could have been obtained by traditional in-person methods. A warrantless search cannot be made on the basis of exigency unless it is shown that it was not practical under the totality of circumstances to obtain a warrant. There is a failure of proof here. There is no evidence that a warrant could not have been swiftly obtained by the traditional approach of an officer to a judge. In the absence of this proof the warrantless entry and search of defendant’s apartmenton a loss of evidence basis cannot be justified.”
(Emphasis added.)
After next concluding that the entry could not be justified as necessary to prevent defendant’s escape — a conclusion that is not challenged in this appeal — the court turned to examine whether the entry could be justified on the ground that Burke gave as his reason for making it, viz., the need to prevent harm to the child. The trial court agreed that the need to prevent such harm justified, as a constitutional matter, the warrantless entry, stating: “An intoxicated adult in charge of a 7 year old child is [,] perhaps per se, a hazard to the child. An intoxicated adult who includes a powerless child in an unfolding episode of aggressive defiance of the police is most certainly a hazard to a child.” On that basis, the trial court denied defendant’s motion to suppress. He was later convicted of the charged crimes. This timely appeal followed.
Defendant’s sole assignment of error is that the trial court erred in denying his motion to suppress. We review the trial court’s legal determination for errors of law. State v. Hampton,
Article I, section 9, provides that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search [.]” “Warrantless entries and searches of premises are per se unreasonable unless they fall within one of the few specifically established and carefully delineated exceptions to the warrant requirement.” State v. Bridewell,
Two initial points will help to narrow the discussion. First, defendant concedes that Burke had probable cause to arrest him at the time that he fled into the apartment. Second, defendant does not mount any separate challenge to the legality of his arrest. Rather, the relevant question in this appeal is whether the circumstances described above created, for one reason or another, an exigency sufficient to excuse the lack of a warrant sanctioning the home entry.
We begin with the ground that the trial court relied on, viz., that there was a threat to the child’s safety. The Oregon Supreme Court has recognized both an emergency/ exigent circumstances exception to the warrant requirement and a distinct “emergency aid” doctrine. See Bridewell,
“[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.”
Baker,
There being no evidence that defendant’s son was suffering, or had suffered, serious physical injury or harm, the question reduces to whether it was objectively reasonable for Burke to believe that the child was threatened with suffering serious physical injury or harm once inside the apartment with defendant. As found by the trial court, the circumstances known to Burke were that defendant had refused to obey Burke’s order to stop; that defendant had yelled something at the child in a slurred voice; that defendant had fled after a police command to stop; that defendant had a concealed weapons permit; that defendant had “urged or pushed” the child up the stairs and into the apartment;
We conclude that those circumstances form an insufficient basis upon which to form an objectively reasonable conclusion that there was a risk of imminent harm to the child at the moment that Burke kicked the door in. There was nothing to suggest that defendant intended to harm his child or that he was otherwise disposed to commit violence. Nor were there any “articulable facts” that tended to narrow the conceivable array of human conduct that defendant might have been engaging in at that point, aside from, perhaps, the minimally informative fact that he and his son had turned off the lights and shut the blinds after entering the apartment. In addition, there was no evidence indicating that defendant was about to engage in reckless conduct vis-á-vis his son inside the apartment. In short, whatever threat of harm defendant posed to his son once inside the apartment was entirely a matter of speculation. Cf. State v. Weaver,
We next examine whether the potential for the destruction of evidence constituted an exigency sufficient to excuse the need for a warrant.
Roberts and Kruse predate Machuca; both concern whether it was permissible for police to conduct a warrant-less entry of a home for the purpose of arresting a DUII suspect. In Roberts, police received a report of a drunk driver in a brown Pinto. They found a vehicle matching that description.
“The deputies arrived at the Franklin Street address * * * They knocked on the door and rang the door bell with no response. The police dispatcher called [the] defendant’s phone number. The deputies heard the phone ring, and then it stopped ringing. The dispatcher verified that the phone had been picked up and immediately hung up. The deputies consulted with their sergeant, who advised them to enter the home to check on [the] defendant’s condition. They entered the unlocked apartment and announced their presence. They went upstairs to the bedroom and found [the] defendant in bed.”
Id. at 294. The defendant moved to suppress evidence of his intoxicated state on the theory that the warrantless entry of his residence was invalid. The state sought to uphold the entry on the ground that it was necessary to alleviate concern over the defendant’s health and to prevent the dissipation of alcohol from the defendant’s blood. We concluded that, under Article I, section 9, the trial court had erred by denying the motion to suppress. We reasoned:
“Because of the peculiar nature of the DUII offense, [the] defendant’s personal condition and, therefore, his person are evidence. In some circumstances, the need to secure that evidence of the crime of DUII — [the] defendant’s body — might justify a warrantless entry of a home,if the state proves that the arresting officers could not have obtained a warrant before the alcohol in the suspect’s body dissipated.”
Id. at 296 (emphasis in original).
“The officers did not seek a warrant. They offered no credible evidence of the length of time necessary to obtain a warrant. Without any evidence of that time or any evidence concerning the time required to secure the evidence, we will not assume that the officers could not have obtained a warrant within a reasonable time. [State v. Rubert,46 Or App 843 ,612 P2d 771 (1980)].”
Roberts,
We hewed to that holding in Kruse, where police responded to a report of a driver who had almost hit a person and was driving on a flat tire.
After the state brought criminal charges, the defendant moved to suppress the evidence that had been discovered after the officer proceeded beyond the entryway. The officer testified that he did not know how long it would have taken to get a warrant, but that it would have been a “very lengthy” time. The state argued that the dissipation of the alcohol in the defendant’s blood was an exigent circumstance. Relying on Roberts, we rejected that contention, stating, “The state’s only evidence concerning the time necessary to obtain a warrant was that it would have been ‘very lengthy,’ although the officer did not know the ‘exact time.’ Consequently, the state failed to meet its burden to prove that exigent circumstances existed, and the evidence should have been suppressed.” Id. at 43.
The state here contends that the determinative principle of those cases — that the state must show that the police could not have obtained a warrant within a “reasonable time” to justify a warrantless home entry under a destruction-of-intoxication evidence rationale — is no longer valid after the Supreme Court’s decision in Machuca. In that case, a defendant was involved in a car accident and taken to an emergency room in the hospital.
Before his DUII trial, the defendant moved to suppress the results of the blood testing under Article I, section 9. The Oregon Supreme Court upheld the trial court’s denial of that motion. As relevant here, the state’s argument was that the dissipating amount of alcohol in the defendant’s blood constituted an exigency that, when coupled with the officer’s probable cause to think that the defendant had driven while intoxicated, was sufficient to excuse the need for a warrant. The court undertook a review of cases in which it had upheld warrantless blood draws for the purpose of investigating DUIIs. From State v. Heintz,
The Machuca court also discussed State v. Moylett,
“The exigency created by the dissipating evidence of blood alcohol, however, did not make the blood sample seizures per se reasonable under Article I, section 9. The state was still required to prove, in order to justify the warrantless extraction of defendant’s blood, that it could not have obtained a search warrant ‘without sacrificing the evidence’ and that the blood sample that it obtained had been extracted ‘promptly.’ [Milligan,304 Or at 666 ].”
Moylett,
The Machuca court expressly disavowed that language from Moylett:
“After examining the cases set out above, we conclude that the exigent circumstances analysis set out in Moylett, which required the state to prove ‘that it could not have obtained a search warrant without sacrificing the evidence,’ unnecessarily deviated from this court’s established case law. Until Moylett, the court’s focus had been on the exigency created by blood alcohol dissipation. Moylett, however, shifted that focus away from the blood alcohol exigency itself and onto the speed with which a warrant presumably could have issued in a particular case. In our view, that shift was unsupported by the cases that preceded it, and we disavow it now.
“Milligan was not, and is not now, to the contrary. We agree with the observation in Milligan that a ‘[w] arrant-less seizure and search under such circumstances therefore is constitutionally justified, unless a warrant can be obtained without sacrificing the evidence.’304 Or at 665-66 . Milligan, however, illustrates that when probable cause to arrest for a crime involving the blood alcohol content of the suspect is combined with the undisputed evanescent nature of alcohol in the blood, those facts are a sufficient basis to conclude that a warrant could not have been obtained without sacrificing that evidence.”
Machuca,
“It may be true, phenomenologically, that, among such cases, there will be instances in which a warrant could have been both obtained and executed in a timely fashion. The mere possibility, however, that such situations may occur from time to time does not justify ignoring the inescapable fact that, in every such case, evidence is disappearing and minutes count. We therefore declare that, for purposes of the Oregon Constitution, the evanescent nature of a suspect’s blood alcohol contentis an exigent circumstance that will ordinarily permit a warrantless blood draw of the kind taken here. We do so, however, understanding that particular facts may show, in the rare case, that a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances. We anticipate that only in those rare cases will a warrantless blood draw be unconstitutional.”
Id. at 656-57 (emphasis in original).
Returning to the present case, the trial court’s finding that the state presented no evidence about whether Burke could have “swiftly obtained” a warrant by traditional means goes unchallenged; thus, the dispositive question is whether Machuca operates in this context to relieve the state from any need to show that Burke could not have obtained a warrant without sacrificing the evidence. The state urges that Machuca displaces our precedents in Roberts and Kruse and identifies three ways in which evidence of the crimes being investigated was — or was potentially — being lost during the time that defendant remained concealed in his apartment: First, the level of alcohol in defendant’s blood (his BAC) was dissipating with time; second, the police were deprived of the opportunity to observe defendant for physical manifestations of intoxication, such as decreased balance; third, defendant could, while obscured from police view, consume alcohol (or, at least, claim that he did so), thus allowing him to later argue that he became intoxicated only upon arriving home.
Defendant contends that Machuca does not control here for several reasons. First, he points out that Machuca was decided in the narrow context where the police have already lawfully seized a person and are seeking to justify a very specific type of additional intrusion. Defendant urges that a home entry involves a greater invasion of individual privacy than a blood draw, insofar as the blood draw is designed to seek out a very specific sort of information (the level of alcohol in a person’s blood), whereas a home entry may reveal a panoply of information about a person’s private affairs. He also contends that the existence of the implied-consent statutory scheme, under which the police may not physically compel a person to submit to a blood draw or a breath test, means that a warrantless home entry is not guaranteed to lead to discoverable evidence — i.e., even if seized, the suspect may refuse to submit to the sought-after BAC testing.
We conclude that Machuca does not control in the present circumstances. First, Machuca does not, by its terms, address the question of a warrantless home entry for the purpose of making an arrest. The state would read the sentence “the evanescent nature of a suspect’s blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw of the kind taken heref
It is, of course, still possible, as the state suggests, that Machuca stands for a principle about the nature of intoxication evidence
In State v. Mazzola,
“In Machuca, the Supreme Court observed that, as a general matter, ‘the undisputed evanescent nature of alcohol in the blood’ provides ‘a sufficient basis to conclude that a warrant could not have been obtained without sacrificing that evidence.’347 Or at 656 ***. We see no reason why that rule would not also apply to cases, like this one, involving FSTs, which are designed to enable officers to detect current impairment”
Mazzola,
As the foregoing cases show, the circumstances in which we have applied Machuca are factually close to those that existed in Machuca and each of its direct predecessors, Heintz, Moylett, and Milligan. That is, we have read Machuca to apply in the context of limited testing that is specifically designed to detect impairment, performed on a defendant who has already been validly seized as a prelude to that testing.
“ [t]he degree to which law enforcement conduct intrudes on a citizen’s protected interest in privacy and liberty is significantly affected by where the conduct occurs, such as in the home, in an automobile, or on a public street. A government intrusion into the home is at the extreme end of the spectrum: Nothing is as personal or private. Nothing is more inviolate.”
State v. Fair,
“[T]he ‘intrusion’ that took place under the facts and circumstances of this case to preserve the evidence was a limited one. As stated by the Supreme Court of the United States in Schmerber v. California, [384 US 757 , 771,86 S Ct 1826 , 1836,16 L Ed 2d 908 (1966)], in approving the taking of a blood sample ‘in a hospital environment’ as a ‘minor intrusion * * * under stringently limited conditions,’ as in this case:
«<*** guc]1 tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain. * *
Taking those precedents at their word — that nothing is more inviolate than the home, and that a warrantless blood draw taken from an already-seized suspect in a hospital is a “limited intrusion” — Machuca concerned a government intrusion of a lesser magnitude than the home entry at issue here. See Fair,
In the warrantless home-entry context, as distinct from the intoxication-testing context, the appellate case law has consistently reflected the substantial burden that the state faces when it attempts to justify a warrantless home entry. The principle at the heart of the exigent-circumstances exception to the warrant requirement is the notion that there are instances in which the time and effort that police would have to expend to procure a warrant would thwart whatever purpose the search or seizure in question was intended to accomplish. See Stevens,
Put simply, the home is different. Because of the magnitude of the privacy interest involved, it is appropriate in this context to demand that the state make at least some showing of the feasibility of obtaining a warrant. In fact, we have “specifically established” that the state was required to make that showing. Roberts,
The above conclusions obviate any need to address defendant’s contentions under the Fourth Amendment.
Reversed and remanded.
Notes
Specifically, Burke stated that he did not seize defendant’s blood and that defendant “refused the BAC.”
After the parties submitted their opening briefs in this case, the United States Supreme Court issued its decision in Missouri v. McNeely,___US___,
There is no suggestion from either party that defendant’s act of “urging or pushing” the child was anything other than an attempt to hurry the child along.
The state’s argument that the dissipation of evidence of defendant’s intoxication constituted exigent circumstances is an argument that we should affirm the trial court on the ground that it was right for the wrong reason when it denied the motion to suppress. In reviewing the trial court’s ruling, we “will affirm that ruling on appeal, even if the trial court’s legal reasoning for the ruling was erroneous, if another legally correct reason and, to the extent necessary, the record developed in the trial court support the ruling.” Outdoor Media Dimensions Inc. v. State of Oregon,
We did not offer any discussion about the source of the requirement that the state must show that the officers could not have obtained a warrant before the alcohol in the suspect’s blood dissipated.
See ORS 813.100(2) (“No chemical test of the person’s breath or blood shall be given * * * to a person under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance, if the person refuses the request of a police officer to submit to the chemical test after the person has been informed of consequences and rights as described under ORS 813.130.”).
In contrast to the other three cases, Moylett did not explicitly state that the defendant had been seized; nonetheless, the defendant had been transported by a sheriff from the scene of an accident to the hospital, and had his blood drawn over his objection.
Burke never expressed a belief that he needed to kick down the door in order to obtain the BAC evidence quickly; to the contrary, he stated that his motivation in kicking down the door was to protect the child. Neither party ascribes significance to the officer’s subjective motivations for kicking in the door, and we therefore assume, but do not decide, that those subjective motivations are not relevant to the analysis.