State v. Burdick

• Decision Date: 06 December 2006
• Docket Number: 20-04-11705.,A126404.
• Citation: 209 Or. App. 575,149 P.3d 190
• Parties: STATE of Oregon, Respondent, v. Anthony Wayne BURDICK, Appellant.
• Court: Oregon Court of Appeals

149 P.3d 190

209 Or. App. 575

STATE of Oregon, Respondent, v. Anthony Wayne BURDICK, Appellant.

20-04-11705.

A126404.

Court of Appeals of Oregon.

Argued and Submitted July 31, 2006.

Decided December 6, 2006.

David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Anna M. Joyce, Assistant Attorney General argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ROSENBLUM, Judge.

ROSENBLUM, J.

Defendant appeals his conviction for unauthorized use of a vehicle, ORS 164.135, challenging the denial of his motion to suppress evidence and the validity of his sentence. Specifically, defendant argues that the warrantless entry by police into an apartment where they discovered a stolen motorcycle was not justified under the emergency aid doctrine, as the trial court concluded. Defendant also argues that the trial court erred by imposing a departure sentence based on judicially found aggravating factors in violation of his Sixth Amendment right to trial by jury. Although we conclude that the trial court correctly applied the emergency aid doctrine, we agree with defendant that his sentence was constitutionally infirm and reverse and remand for resentencing.

Although the trial court made no express findings of fact, we presume that the facts were decided consistently with the trial court's ultimate conclusion. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). We determine anew, however, whether the trial court correctly applied legal principles to those facts and permissible inferences from the facts. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). With those standards in mind, we recite the facts as testified to at the suppression hearing in the light most favorable to the state.

Early in the morning, the owner of a green motorcycle reported her motorcycle stolen in Eugene. Around 8:00 a.m., Eugene police were summoned to an apartment complex after residents reported that "disorderly subjects" were riding a green motorcycle behind the apartment complex. After speaking with the residents, the officers learned that a motorcycle had been hidden in the brush behind the apartment complex earlier that morning. Once they arrived on the scene, the officers saw a man run from the apartment complex.

The apartment complex manager, McElroy, also called the police after he saw a man with a knife enter apartment 33 through the front door, which he knew was occupied by a single female tenant who did not work, did not own a vehicle, and was "always there." After the man with the knife entered apartment 33, McElroy knocked and pounded on the door but received no response. After the police arrived at the scene, they also tried, without success, to contact the tenant.

Because of the large number of officers involved in responding to the calls, Sergeant Harris was called to supervise. One of the officers at the scene told Harris that a man armed with a knife¹ had been seen entering apartment 33 by climbing through a rear window (contrary to McElroy's report — which had not been given to the police at that point — that the man had entered through the front door). Residents of the complex told the police that one of the two men seen riding the motorcycle was "probably" the person who climbed through the window.

Harris also learned that a man who had been seen frequenting apartment 33 was "acting kind of strange lately." Concerned for the tenant's safety, Harris decided to check on her. He knocked on the door and called out, but there was no response. A fellow officer then informed Harris that a motorcycle had been heard starting up nearby, and Harris sent the other officers at the scene to investigate while he remained at apartment 33. Because other officers had seen a man running away from the apartment complex, Harris did not expect to find the man with the knife inside the apartment. He testified that he was "concerned about somebody injured in the residence."

After receiving no response to his knocking on the apartment door, Harris asked McElroy to let him in. McElroy unlocked the exterior lock on the front door, but the door was blocked from the inside. Harris then learned from other residents of the complex that "the window * * * to that particular apartment was open and in the back." He walked around back; looked inside, and saw a man lying on a bed. Harris told the man that he needed to speak to him at the front door.

Harris returned to the apartment's front door to find it now unlocked and slightly ajar, so he pushed the door open to look inside the apartment. As he stood in the doorway, he saw the person he had spoken to in the back bedroom walking down the hall and asked him where the female resident was. The man pointed down the hallway, and Harris told him that he needed to speak with her.

While standing in the doorway, Harris also saw a green motorcycle in the kitchenette of the apartment, which was adjacent to the front door. He then noticed a second man asleep on the living room couch. Harris informed the other officers in the area of his discovery and summoned them back to the apartment. During the investigation that followed, the police discovered defendant hiding in the female tenant's bedroom. He was subsequently identified by a witness as one of the men seen riding the motorcycle.

Defendant was arrested and charged with unauthorized use of a vehicle, ORS 164.135. Before trial, defendant moved to suppress all evidence obtained by Harris after he pushed open the apartment door and observed the green motorcycle inside. The trial court held "that the police had reasonable grounds to believe that there was an emergency[,] that immediate need for their assistance for the protection of life was necessary" and that "the emergency was a true emergency." The trial court denied defendant's motion to suppress.

Also before trial, the state filed an "Allegation of Aggravating Circumstances Justifying Departure Sentence" and argued that defendant's alleged persistent involvement in similar offenses and the fact that defendant was on post-prison supervision at the time he allegedly committed the crime justified imposition of an upward departure sentence. Defendant objected, arguing that he was entitled under the Sixth Amendment to have the alleged aggravating circumstances found by a jury before an upward departure sentence was imposed. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (concluding that it violates the Sixth Amendment to impose an upward departure sentence based on facts not found by a jury or admitted by the defendant); State v. Sawatzky, 195 Or.App. 159, 96 P.3d 1288 (2004) (applying Blakely to Oregon's sentencing guidelines). The trial court determined that the aggravating circumstances were not a question for the jury under Blakely.

Evidence of the motorcycle was introduced at trial, and defendant was convicted by a jury of unauthorized use of a vehicle. At sentencing, defendant reiterated his objection to the imposition of an upward departure sentence and asked the court to impose, instead, the presumptive sentence of 13 months in prison. The state requested a 26-month prison term based on aggravating factors other than prior convictions, and the court sentenced defendant accordingly.

We first address defendant's argument that the trial court erred by failing to suppress evidence of the motorcycle because Harris's entry into the apartment was not authorized by a warrant. A warrantless search is per se unreasonable under Article I, section 9, of the Oregon Constitution unless it falls within a recognized exception to the warrant requirement. State v. Voits, 186 Or.App. 643, 648, 64 P.3d 1156, rev. den., 336 Or. 17, 77 P.3d 320 (2003), cert. den., 541 U.S. 908, 124 S.Ct. 1612, 158 L.Ed.2d 253 (2004). We have previously held that the emergency aid doctrine exception to the warrant requirement permits the state to use evidence seized pursuant to a warrantless intrusion in a criminal prosecution if:

"(1) The police * * * have reasonable grounds to believe that there is an emergency and an immediate need for their assistance for the protection of life.

"(2) The emergency [is] a true emergency — the officer's good faith belief alone is insufficient.

"(3) The search [is not] primarily motivated by an intent to arrest or to seize evidence.

"(4) The officer * * * reasonably suspect[s] that the area or place to be searched is associated with the emergency and that, by making a warrantless entry, the officer will discover something that will alleviate the emergency."

State v. Follett, 115 Or.App. 672, 680, 840 P.2d 1298 (1992), rev. den., 317 Or. 163, 856 P.2d 318 (1993). Defendant concedes that Harris's entry into the apartment was not motivated by the intent to arrest or seize evidence and that Harris reasonably suspected that the apartment was associated with the emergency, but he contends that there was no true emergency and the police lacked a reasonable basis to believe that there was.

The first two prongs of the Follett test require us to determine whether the circumstances actually existing at the time Harris entered the apartment by pushing open the front door supported an objectively reasonable belief that his action was immediately required to protect life. See, e.g., State v. Martofel, 151 Or.App. 249, 252, 948 P.2d 1253 (1997) ("[A] ...