State of Or. v. BAKER

• Decision Date: 22 September 2010
• Docket Number: 071766AFE,A137073.
• Citation: 240 P.3d 735,237 Or.App. 342
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Hezakiah Benjamin BAKER, Defendant-Appellant.
• Court: Oregon Court of Appeals

237 Or.App. 342

240 P.3d 735

STATE of Oregon, Plaintiff-Respondent, v. Hezakiah Benjamin BAKER, Defendant-Appellant.

071766AFE; A137073.

Court of Appeals of Oregon.

Submitted Aug. 25, 2009.

Decided Sept. 22, 2010.

Garrett A. Richardson, Multnomah Defenders, Inc., filed the brief for appellant.

John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.

ARMSTRONG, J.

Defendant appeals his convictions for unlawful delivery of marijuana, ORS 475.860(2) (2007), and endangering the welfare of a minor, ORS 163.575. He assigns error to the trial court's denial of his motion to suppress evidence that police officers obtained after entering his residence without a search warrant. We review the suppression ruling for legal error and conclude that the officers' entry into defendant's residence violated Article I, section 9, of the Oregon Constitution. We therefore reverse and remand.

The trial court made few findings. However, its findings are supported by the record, and, thus, we accept them. State v. Salisbury, 223 Or.App. 516, 518, 196 P.3d 1017 (2008). We presume that other pertinent facts were decided in a manner consistent with the trial court's ultimate conclusion. State v. Burdick, 209 Or.App. 575, 577, 149 P.3d 190 (2006). We relate the facts accordingly.

In April 2007, Officer Venables of the Medford Police Department responded to a call from dispatch about a domestic disturbance. According to the dispatcher, a person claiming to be Turnage's neighbor had called 9-1-1 to report that she could hear yelling or screaming coming from Turnage's house and that Turnage had used a prearranged code word to tell the neighbor that she was in trouble and needed immediate police assistance. The caller also reported the possibility that a two-and-one-half-year-old child was at the residence. Based on that information, Venables believed that there was an emergency that required a quick response, and he sped in his patrol car to Turnage's house using emergency lights and sirens.

A second officer, Wileman, was also dispatched. Wileman had used code words while growing up with his family and understood them to be used only in situations that were “pretty important.”

The officers parked their patrol cars down the street from Turnage's house and walked to it. As they approached, they saw two people, a man and a woman, sitting on the front porch of the house; the officers could hear yelling coming from inside, but they could not make out what was beingsaid. The pair on the porch was not involved in the disturbance, but they reported that they had been inside the house. Venables asked the pair questions in order “to figure out * * * exactly what was going on.” However, the record indicates only that the people confirmed that an argument “was going on inside the residence.” They did not say anything about weapons, injuries, or threats of violence, nor did they express any concern for the well-being of the people inside the house. Venables could not recall whether hehad asked the pair if anyone inside the house had been hurt.

Venables tried the front door but found it locked. He did not knock on the door or ring the doorbell, for fear of aggravating the situation. Instead, he asked the people on the front porch how he could get into the house, and they told him that he could get in through the back door. Both officers testified that, at that point, they believed that there was an emergency and that they needed to make contact with the people inside the house as quickly as possible. Wileman testified that “it sounded to [him] like [it] was one of those fights that could escalate into something possibly violent.” Similarly, Venables testified that, based on the dispatch report of a woman possibly in danger, the yelling in the house, and the possible presence of a young child, he felt it necessary to ensure that “the parties were okay inside.”

The officers then walked around toward the back of the house. On their way to the back door, the officers were able to see Turnage and defendant through a side window of the house. At that point, Wileman “could still hear yelling” between the couple, however he “couldn't hear words * * * [and] couldn't tell * * * what they were saying.”

On reaching the back door, Venables could see Turnage and defendant through a window in the door. Defendant's back was turned to the officers; however, Turnage saw the officers and shouted, “Cops!” Defendant reacted quickly and began taking buds off of what appeared to be a marijuana plant, placing them in a box near the door. The officers then opened the door, identified themselves, and entered the house.

The officers separated the two and questioned them. After speaking with them, the officers quickly determinedthat there had been no assault between Turnage and defendant and saw that both were free of any red marks or bruises. The officers asserted that their first priority was ascertaining the safety of all of the affected people, including the two-and-one-half-year-old child who might have been in the house. Once they were satisfied that no one was injured, they turned their attention to the marijuana. In addition to the marijuana plants in the kitchen, the officers found several more in other rooms in the house.

Defendant was charged with five crimes, all related to the presence of the marijuana plants. Before trial, he moved to suppress evidence of the marijuana plants. Defendant raised several arguments, including that there was no true emergency or exigency justifying entry into the rear of the residence. The court denied the motion, concluding that the officers' entry into defendant's home was lawful under the emergency aid exception to the warrant requirement.

Article I, section 9, of the Oregon Constitution requires the police to obtain a warrant before conducting a search unless a recognized exception to the warrant requirement applies. See, e.g., State v. Stevens, 311 Or. 119, 126, 806 P.2d 92 (1991). One such exception is the emergency aid exception. Under that exception, police are authorized to make a warrantless entry into property if:

“(1) the police have reasonable grounds to believe that there is an immediate need for their assistance for the protection of life; (2) there is a ‘true emergency’-that is, the circumstances giving rise to the police's belief that action is necessary actually exist; (3) the search is not primarily motivated by an intent to arrest a person or seize evidence; and (4) the police reasonably believe that, by making the warrantless entry, they will discover something that will alleviate the emergency.”

State v. Bentz, 211 Or.App. 129, 135, 158 P.3d 1081 (2007). Suspicious circumstances or an officer's “gut instinct” are insufficient to establish the reasonableness of an officer's belief that immediate action is necessary to protect life. Burdick, 209 Or.App. at 581, 149 P.3d 190. Further, when the emergency aid doctrine is invoked to justify a warrantless entry into ahome, “the state must make a strong showing that exceptional emergency circumstances truly existed.” State v. Miller, 300 Or. 203, 229, 709 P.2d 225 (1985), cert. den., 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986).

Here, only the first two elements of the emergency aid doctrine are at issue. To satisfy those elements, the police officersmust have believed that immediate intervention by them was necessary to protect a person's life and their belief of that, evaluated at the time of entry, must have been objectively reasonable. See, e.g., State v. Martin, 222 Or.App. 138, 148, 193 P.3d 993 (2008), rev. den., 345 Or. 690, 201 P.3d 910 (2009). As explained below, we conclude that those requirements were not satisfied in this case. That is because, even assuming without deciding that, when the officers arrived at the home, sufficient objective indicia of an emergency existed to justify a warrantless entry, by the time that the officers entered the house, their belief that there was a life-threatening emergency requiring their intervention was not objectively reasonable.

We recognize that, if objective indicia of a life-threatening emergency were present up to the point that the officers reached the back door of the house, then their entry into the house and seizure of the marijuana plants conceivably could have been justified under the plain view and exigent circumstances doctrines. See, e.g., State v. Walle, 52 Or.App. 963, 967, 630 P.2d 377 (1981). However, if the officers' belief about a life-threatening emergency became unreasonable after they saw defendant and Turnage arguing through the side window of the...