State v. Baker

• Decision Date: 01 September 2011
• Docket Number: (CC 071766AFE; CA A137073; SC S058967).
• Court: Oregon Supreme Court
• Parties: STATE of Oregon, Petitioner on Review,v.Hezakiah Benjamin BAKER, Respondent on Review.

350 Or. 641

260 P.3d 476

STATE of Oregon, Petitioner on Review,

v.Hezakiah Benjamin BAKER, Respondent on Review.

(CC 071766AFE; CA A137073; SC S058967).

Supreme Court of Oregon, En Banc.

Argued and Submitted May 4, 2011.Decided Sept. 1, 2011.

On review from the Court of Appeals.^*Ryan Kahn, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.Garrett A. Richardson, Multnomah Defenders, Inc., Portland, argued the cause and filed the brief for respondent on review.DE MUNIZ, C.J.

Defendant was charged, in Jackson County, with multiple counts related to the manufacture and possession of marijuana.¹ Before trial, defendant moved to suppress evidence seized by Medford city police officers who, without a warrant, entered defendant's residence to investigate a 9–1–1 domestic disturbance call. The trial court denied defendant's motion. The Court of Appeals reversed and remanded, concluding that the warrantless entry of defendant's residence was not authorized under an “emergency aid exception” to the warrant requirement and thus violated defendants rights under Article I, section 9, of the Oregon Constitution. State v. Baker, 237 Or.App. 342, 240 P.3d 735 (2010). We allowed the state's petition for review and, for the reasons set out below, reverse the Court of Appeals decision.

We take the facts from the record and the Court of Appeals opinion. In April 2007, an anonymous female called 9–1–1 and reported a domestic disturbance at a neighbor's house. The caller stated that she could hear yelling and screaming coming from inside the residence and that she thought there might be a child inside. The caller stated that she had heard the female resident of the house, Sherry Turnage, use a prearranged code word indicating to the caller that police assistance was needed. That information was, in turn, related to Officer Venables who was dispatched to the residence. Venables believed that the situation amounted to an “extreme emergency,” and sped to the location using his patrol car's lights and siren. Officer Wileman was also dispatched to the residence. Like Venables, Wileman believed that the situation constituted an emergency because, as a child, his own family had frequently used code words to indicate “something important.”

When the officers arrived at the residence, they saw two individuals sitting on the front porch of the house; both seemed nervous, but not afraid or startled. When asked, they confirmed that a dispute was ongoing inside the residence and that that was why they were outside. Both Venables and Wileman could hear yelling coming from inside the house; they could not, however, understand what was being said. The front door to the residence was locked, and the two people on the front porch informed Venables that he could gain access through the back door. Venables did not knock on the front door or otherwise make contact with the people inside, for fear of escalating the situation.

Walking toward the back of the property, Venables stopped at a window on the side of the house, and observed defendant and Turnage arguing; Venables could not determine what was being said, nor did he observe any indication of a physical altercation between the occupants. On reaching the back of the house, Venables continued to observe its occupants through another window next to the back door. Turnage saw Venables and yelled “cops,” at which point defendant began to pick buds off a marijuana plant in the room. At the same time, Venables opened the back door and identified himself and Wileman. Venables then began investigating whether an assault had taken place.

Venables interviewed Turnage, and Wileman interviewed defendant. Both Turnage and defendant were free of marks and bruises and, after his preliminary inquiry, Venables determined that no assault had occurred. Venables then turned his attention to the marijuana plant and, while searching other parts of the residence, discovering several more plants in the house.

Before trial, defendant moved to suppress the marijuana seized after the officers entered his residence, arguing that the warrantless entry onto the rear of his property along the side of his house violated Article I, section 9, of the Oregon Constitution. Specifically, defendant argued that the officers' continuation past the initial approach to the front of his house without a warrant, was unlawful because it was not otherwise authorized under an emergency aid exception to the warrant requirement.² The trial court rejected defendant's motion, concluding that the officers were authorized under the emergency aid exception to proceed around the side of defendant's residence and, therefore, did not violate Article I, section 9, of the Oregon Constitution when they entered the residence.

On appeal, defendant again argued that the police had violated defendant's rights under Article I, section 9, when they entered onto his property without a warrant, because the evidence did not support an objective reasonable belief that an emergency existed at that time. In response, the state argued that use of the code word and the neighbor's report of hearing yelling from inside the residence, in addition to the yelling heard by the police officers at the location, permitted the officers to proceed beyond the front of the house and enter defendant's house under the emergency aid exception to the warrant requirement. The Court of Appeals disagreed with the state, citing the four-part test that it had announced in State v. Follett, 115 Or.App. 672, 840 P.2d 1298 (1992).³ In doing so, the Court of Appeals noted 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.”Baker, 237 Or.App. at 347, 240 P.3d 735. The Court of Appeals nevertheless concluded that

“[w]hen the officers saw through the side window that the couple was engaged in only a verbal, nonviolent argument unaccompanied by other evidence indicative of life-threatening violence, it ceased to be objectively reasonable for the officers to believe that immediate intervention by them to protect life was necessary.”

Id. at 349, 240 P.3d 735. As a result, the Court of Appeals reversed the trial court's order denying defendant's motion to suppress the marijuana and we allowed the state's subsequent petition for review.

As a threshold matter, we observe that the Court of Appeals decided this case on a legal theory that was different from the one that defendant pursued at trial and on appeal. In those forums, defendant argued that the evidence was not sufficient under an emergency aid exception to permit the police to proceed around the side of the house without a warrant. The Court of Appeals, however, focused its analysis on whether an emergency continued to exist after the officers had looked through the house's side window and observed only a verbal argument between the residents. Id. at 347, 240 P.3d 735. For purposes of this opinion, we confine our review to the issue as defendant raised it below.

On review, the state contends that, as applied to this case, the four-part test, established by the Court of Appeals in Follett, is too narrow, because it can be triggered only when police officers have an objectively reasonable belief that their assistance is needed for the protection of life, or that life-threatening injury is imminent. Instead, the state argues that an emergency aid exception to the warrant requirement should authorize the police to enter a residence based on a reasonable belief that entry is necessary to assist persons who have suffered, or are threatened with, serious physical injury or harm. For his part, defendant agrees that the threat of “serious physical injury,” and not the risk of life-threatening injury, is all that should be required under an emergency aid exception. Nevertheless, defendant argues that the Court of Appeals correctly determined that here, the officers did not have a reasonable belief that Turnage was in imminent danger of serious physical injury or harm.

We begin with Article I, section 9, of the Oregon Constitution, which provides:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” Under Article I, section 9, warrantless entries and searches of premises are per se unreasonable unless falling within one of the few “specifically established and well-delineated exceptions” to the warrant requirement. State v. Davis, 295 Or. 227, 237, 666 P.2d 802 (1983) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)). The state has the burden of proving that circumstances existing at the time were sufficient to satisfy any exception to the warrant requirement. Id. at 237, 666 P.2d 802. Here, the state argues that the officers' eventual warrantless entry into defendant's residence was justified under an emergency aid exception to the Article I, section 9 warrant requirement.

For purposes of Oregon law, this court has acknowledged the existence of a so-called emergency aid exception in only two cases: State v. Davis and State v. Bridewell, 306 Or. 231, 236, 759 P.2d 1054 (1988).⁴ In Davis, a man had told police that his girlfriend might be being raped in a motel room by a man he had seen carrying an automatic pistol. When the police knocked on the room, the woman opened the door and walked out without appearing frightened or disheveled. The...