State v. Bridewell

• Decision Date: 26 July 1988
• Docket Number: No. 1233,1233
• Citation: 759 P.2d 1054,306 Or. 231
• Parties: , 57 USLW 2131 STATE of Oregon, Respondent on Review, v. Jon BRIDEWELL, Petitioner on Review. TC; CA A38352; SC S34603.
• Court: Oregon Supreme Court

Page 1054

759 P.2d 1054

306 Or. 231, 57 USLW 2131

STATE of Oregon, Respondent on Review, v. Jon BRIDEWELL, Petitioner on Review.

TC No. 1233; CA A38352; SC S34603.

Supreme Court of Oregon,

In Banc.

Argued and Submitted March 2, 1988.

Decided July 26, 1988.

John R. Faust, Jr., Portland, argued the cause for petitioner on review. With him on the petition for review and memorandum in response to questions by the court was Schwabe, Williamson & Wyatt, Portland.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for respondent on review. On the memorandum in response to questions by the court were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

CARSON, Justice.

For allegedly cultivating marijuana upon his premises, defendant was accused by criminal information with Manufacture of a Controlled Substance. ¹ Evidence of the crime was gathered when deputy sheriffs entered defendant's premises to investigate his possible disappearance. Defendant contends that their entry was unlawful, and he moved the trial court, inter alia, to suppress "the evidence * * * and * * * all information or knowledge gained either directly or indirectly as a result thereof * * * and all statements." In addressing defendant's motion at the suppression hearing, the trial court found the following facts:

Defendant lives alone in an isolated, rural area. Shortly before June 16, 1985, defendant's friend received several packages from United Parcel Service addressed to defendant. She tried to telephone defendant to come and pick them up. Although defendant's answering machine was working, defendant never returned the call.

After three or four days, the friend became concerned because she knew defendant worked as a logger on his premises, lived alone, and might have suffered an injury. She also knew that defendant suffered from headaches and that threats had been made upon his life. On June 16, she drove to defendant's premises between 8:00 and 9:00 p.m. When she arrived, she noticed that defendant's dogs were chained to the front porch, the front door was open, and defendant's two pickup trucks were gone.

The friend then went to the back door and entered the house. She called for defendant and noticed an empty pistol holster. The house was in a disheveled state. The friend tried to enter a bathroom but could not because the door was blocked by clothing.

Not finding defendant, the friend went to another building on defendant's premises. She focused her vehicle lights on the doors and again called for defendant. There was no response.

She then drove to the sheriff's office. She gave a deputy a statement relating what she had observed. The deputy took the statement shortly before 10:00 p.m. No attempt was made to contact defendant from the sheriff's office.

The deputy decided that he would need a four-wheel drive to reach defendant's residence. ² He arranged for this with another deputy, and the deputies decided to go to defendant's residence the following morning. Department custom was to inquire into this type of matter during daylight. The deputies also believed that the situation did not present an emergency.

Upon arriving at defendant's residence the following day, the deputies observed the dogs on the front porch. The front door was still open, and they walked into the house. The deputies observed the empty holster and the disarray of the house. Although they called for defendant and The deputies then walked to defendant's shop. The shop was on defendant's premises, about 125 yards from his residence. Both doors were open. From inside, the deputies heard a "swishing" noise. Without calling for defendant, they entered the shop and saw, through an open door to a separate part of the shop, four marijuana plants, baskets, and grow lights.

looked upstairs, they did not find defendant.

The deputies called for defendant, who emerged from the room in which the plants were seen. He shut the door behind him. The deputies asked defendant to open the door, but defendant replied that they needed a warrant. When the deputies responded that they did not need a warrant because they already had observed the evidence, defendant assented and opened the door. Three hundred fifty-four marijuana plants were seized. Although they discovered the alleged criminal activity, the trial court also found that the deputies did not go to defendant's premises to look for marijuana plants or evidence of "misdeeds."

On these facts, the trial court ordered the suppression of evidence, finding that "there was no legal and valid intrusion into the shop." ³ The Court of Appeals reversed, concluding that, pursuant to their "community caretaking function," the deputies had a "reasonable basis" for entering defendant's premises. State v. Bridewell, 87 Or.App. 316, 742 P.2d 648 (1987). We reverse the decision of the Court of Appeals.

I. LEGALITY OF INTRUSION IN CRIMINAL CONTEXT

Absent consent, law enforcement officials must have a warrant to search a person's premises. 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. Davis, 295 Or. 227, 237, 666 P.2d 802 (1983).

A. Emergency/Exigent Circumstances Exception.

In this case, the deputies did not have a warrant to enter defendant's premises. The question is whether the entry may be justified under an exception to the warrant requirement. This court has recognized the existence of an "emergency doctrine" exception to the warrant requirement in the context of investigation of crime. State v. Miller, 300 Or. 203, 229, 709 P.2d 225 (1985).

The trial court here concluded that there was no emergency and thus no justification for the warrantless entry. We are bound by the trial court's determination of what actually happened and limit our review to determining whether legal principles were correctly applied. State v. Davis, supra, 295 Or. at 238, 666 P.2d 802.

Under the emergency/exigent circumstances exception, a warrantless entry requires probable cause. The deputies did not have probable cause to believe that defendant had been victimized by criminal activities upon his premises and was in need of their immediate assistance. They had not received a report of criminal activities or violence, merely that defendant's house was unkempt, his dogs unattended, and his vehicles absent from their usual location. Nor was the report of an empty pistol holder or defendant's failure to respond to his friend's telephone or verbal calls sufficient to give rise to probable cause to look for criminal activity. The deputies did not have anything from which to conclude, even assuming that defendant had been the victim of criminal activity, that he was to be found upon his premises. We conclude that the deputies lacked probable cause of criminal activity sufficient to justify warrantless entry upon defendant's premises under the emergency/exigent circumstances exception.

Further, even were we to conclude that the deputies did have probable

                cause to believe criminal activity was afoot, we note that the record does not disclose whether the deputies ever sought a warrant.  Securing a warrant before entry is unnecessary if exigent circumstances, in addition to probable cause, exist, i.e., if an "emergency" exists.  By the time they drove to defendant's premises on the morning of June 17, about 12 hours had passed since the deputies had taken defendant's friend's statement.  Although the passage of time does not necessarily negate an exigency, and an exigency may be created with the passage of time, it is also true that the passage of time detracts from a claim that an exigency existed.   See State v. Beede, 119 N.H. 620, 406 A.2d 125, 131 (1979).  Even if department custom might excuse an immediate, nighttime investigation, the deputies did not go to defendant's premises until later the following morning.  The passage of the intervening hours significantly dissipated any possible exigency.  The passage of substantial time also suggests that the deputies could have tried to secure a warrant in the interval between the friend's report and their entry onto defendant's premises
                

B. Emergency Aid Doctrine.

Apart from the emergency/exigent circumstances exception to the warrant requirement, this court tacitly has embraced the emergency aid doctrine in a criminal context. See State v. Davis, supra. The emergency aid doctrine is distinct from the emergency/exigent circumstances exception to the warrant requirement because the former does not require probable cause to believe that a crime has been committed. In Davis, the trial court concluded that the police did not have probable cause to enter when investigating a disturbance in a motel room. In reviewing that case, we observed the recognition of the emergency aid doctrine in both federal and state courts. We also observed that "this court has not had occasion to apply" the emergency aid doctrine. State v. Davis, supra, 295 Or. at 238, 666 P.2d 802. After concluding that the circumstances in Davis arguably fell within the scope of the emergency aid doctrine, we held that any "emergency" previously existing had dissipated when the purported victim left the motel room.

However, even where courts may accept a reasonable belief or suspicion, as opposed to probable cause, as a basis to apply the emergency aid doctrine to law enforcement activities, this means a true emergency. As noted above, the facts of this case do not meet that threshold requirement.

II. LEGALITY OF INTRUSION IN OTHER THAN A CRIMINAL CONTEXT

We recognize that an "emergency doctrine," of one sort or another, has been applied to warrantless searches and seizures in which probable cause and exigent circumstances exist without reference to criminal activity or situations likely to involve criminal activity. ⁴ We never have expressly held...