State v. Gassner

• Citation: 6 Or.App. 452,93 Adv.Sh. 349,488 P.2d 822
• Parties: STATE of Oregon, Respondent, v. Stephen Russell GASSNER, Appellant.
• Decision Date: 21 September 1971
• Court: Court of Appeals of Oregon

Page 822

488 P.2d 822

6 Or.App. 452

STATE of Oregon, Respondent, v. Stephen Russell GASSNER, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted May 20, 1971.

Decided Sept. 21, 1971.

Robert J. McCrea, Eugene, argued the cause for appellant. With him on the brief were Mulder, Morrow & McCrea, Eugene.

W. Michael Gillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Before SCHWAB, C.J., and FORT and THORNTON, JJ.

SCHWAB, Chief Judge.

The defendant appeals from a conviction of illegal possession of narcotics in violation of ORS 474.020. The sole issue presented concerns the legality of the method of execution of a search warrant. The trial court denied a motion to suppress and this ruling is the basis of defendant's appeal. We reverse.

On May 10, 1970, several Corvallis police, armed with an admittedly valid search warrant, assembled near an apartment in that city jointly occupied by defendant and one Paul Warren. Sergeant Miller of the police department, who was in charge of the search, had the manager of the apartment house accompany him to the front and only door of the apartment. No activity was noted in or around the apartment prior to approaching the door. Sergeant Miller knocked with two raps, but did not announce his identity or purpose, or make any other announcement. Hearing no immediate response he quickly directed the manager to unlock the door with a pass key. Sergeant Miller immediately pushed open the door and entered the apartment. As he entered, he saw the defendant in the living room of the apartment. The officer testified that the defendant was standing motionless at least 10 feet from the door. The defendant testified that he was walking toward and was within six feet of the door at the time of the police entry. The apartment manager remembered defendant's being about six feet from the door and facing it, but was not certain whether he was walking toward it. In any event, it is agreed that no announcement was made until Sergeant Miller had crossed the threshold, at which time the officer advised the defendant of his identity and purpose.

As Sergeant Miller was entering, the several other officers accompanying him hurried to various points in the apartment. The search that followed produced a substantial amount of illegal drugs. At the suppression hearing, Sergeant Miller testified that he had no concern about the destruction or disappearance of evidence, and he did not say anything to indicate concern for his safety or the safety of others. His only justification for entry without announcing his purpose was that he believed the apartment to be vacant.

Defendant contends that since the police did not make an announcement of their identity and purpose before entering the apartment the search was illegal.

Defendant's arguments raise both staturory and constitutional problems. ¹ ORS 133.290 ² establishes the general rule that officers should give notice of their authority and purpose when executing a search warrant, but as we have previously held, this statute is subject to exceptions when exigent circumstances exist. State v. Mitchell et al., Or.App., 93 Adv.Sh. 89, 487 P.2d 1156 (1971). Defendant's statutory arguments thus present the question of whether there were exigent circumstances in this case justifying non-compliance with ORS 133.290.

There are, in addition, constitutional limits on the authority of the police to make unannounced searches. The Fourth Amendment to the United States Constitution prohibits unreasonable searches, and in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), eight Justices agreed that, in general, announcement is an essential element of a reasonable search. ³ Although there is some confusion in the cases, this analysis of Ker is endorsed by most, if not all, commentators. Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California, 112 U. of Pa.L.Rev. 499, 551 (1964); Sonnenreich and Ebner, No-Knock and Nonsense, An Alleged Constitutional Problem, 44 St. John's L.Rev. 626, 640 (1970); Note, Announcement in Police Entries, 80 Yale L.J. 139, 146 (1970); Note, No-Knock and the Constitution: District of Columbia Court Reform and Criminal Procedure Act of 1970 (A Critique and Proposed Alterations), 55 Minn.L.Rev. 871, 884 (1970).

Were we able to consider this matter in the absence of Ker, we would have no trouble in concluding that the announcement requirement is never of constitutional proportions. As we noted in State v. Mitchell et al., supra, the announcement rule originated at common law and was always subject to exceptions and qualifications. It has recently been observed that:

'Proponents of a strict announcement requirement have created a constitutional certainty from a common-law uncertainty * * *. To elevate the announcement rule to a constitutional requirement in 1963 was probably historically unsound. To premise it upon a vague right of privacy, rather than on the avoidance of potential violence was a further departure from precedent * * *.

'It is difficult to see, however, what actual protection is given to any right of privacy by the announcement rule. Once identity and purpose are stated, entry must always be permitted; if permission is denied, or even delayed for an inordinate amount of time, entry may be forced, provided the officer has a valid purpose in gaining admission. Since no discretion is vested in the occupant, in what manner does notice protect his privacy? * * *.' Sonnenreich and Ebner, supra, 44 St. John's L.Rev. at 646--47.

We are, however, not free to consider whether Ker is correct or incorrect; instead, we are limited by its authority and must apply the constitutional rule it establishes.

The general constitutional rule, like the general statutory rule, is subject to exception when exigent circumstances can be shown. In Ker itself, the Supreme Court split four-to-four over whether sufficient exigent circumstances were present. Defendant's constitutional arguments thus present the question of whether there were exigent circumstances in this case justifying non-compliance with the general rule of Ker.

Against this background, we return to the facts of this case. The state contends exigent circumstances were present excusing lack of announcement in this case because: (1) the officers believed the apartment to be vacant; and (2) the evidence sought (narcotics) was readily disposable. We disagree with both contentions.

Sergeant Miller's belief that the apartment was vacant was not justified. He knocked, waited 'a moment,' ⁴ and then entered with a pass key. His assumption that the apartment was vacant could only have been based on the fact that there was not an immediate verbal or other response to his knock. The officer's assumption was unwarranted; people hearing a knock on their door or their doorbell ring do not necessarily shout through the door, 'Yes, I'm coming,' or 'Who is it?'. Many people would just go to answer the door, as defendant testified he did in this case.

The officers knocked on the door at about 2:30 on a Sunday afternoon--a time when it was reasonable to expect to find someone at home. The apartment area had been under surveillance for about a half hour before that time and the officers had not seen anybody come or go--an observation that makes it just as likely as not that somebody will be home. And there is some indication in the testimony of the apartment manager that the police plan, before they even went to the apartment, was to just knock and enter with the pass key.

Remembering that 'the burden of making an express announcement (of authority and purpose) is certainly slight,' Miller v. United States, 357 U.S. 301, 309, 78 S.Ct. 1190, 1196, 2 L.Ed.2d 1332 (1958), and reviewing all the above factors relevant to whether the officers reasonably believed the apartment to be vacant, we conclude that since that belief was unwarranted, the search was in violation of ORS 133.290.

Were this the only issue in the case, we would now be faced with a novel suppression question. When all that is shown is the violation of a 'knock and announce' statute, the cases seem to have always assumed, without discussion, that suppression is the appropriate remedy; e.g., Miller v. United States, supra. We see no reason why this result must follow automatically. Of course, evidence illegally seized in violation of the United States Constitution Must be suppressed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961). Evidence illegally seized in violation of a local statute, such as ORS 133.290, May be suppressed. It is important to realize, however, that the plea for suppression should be addressed to this court's discretion in the exercise of its supervisory authority over the administration of criminal justice. ⁵

We need not decide the supervisory suppression question here. We will have to decide this question if and when we are presented with a case that reveals a violation of the statutory announcement rule and no violation of the constitutional announcement rule. Such a case is a distinct possibility because it appears that the exceptions to the constitutional announcement rule of Ker are not necessarily coextensive with the exceptions to our announcement statute. If they were, it would have made no sense for the Ker court to say:

'* * * (Mapp v. Ohio) established no assumption by this Court of supervisory authority over state courts * * * and, consequently, it implied no total obliteration of state laws relating to arrests and seizures in favor of federal law * * *.' 374 U.S. at 31, 83 S.Ct. at 1629.

This means, we believe, that the Fourth Amendment sets the extreme outer limits on permissible unannounced searches, with state courts free to fashion higher standards of police conduct...