State v. Cocke

• Decision Date: 23 June 1999
• Citation: 984 P.2d 321,161 Or. App. 179
• Parties: STATE of Oregon, Respondent, v. John Richard COCKE, Appellant.
• Court: Oregon Court of Appeals

984 P.2d 321

161 Or. App. 179

STATE of Oregon, Respondent, v. John Richard COCKE, Appellant.

(C9604-33280; CA A96903)

Court of Appeals of Oregon.

Argued and Submitted August 5, 1998.

Decided June 23, 1999.

Diane L. Alessi, Chief Deputy Public Defender, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge,¹ and WOLLHEIM, Judge.

WOLLHEIM, J.

Defendant appeals his convictions for the manufacture, delivery, and possession of a controlled substance. ORS 475.992; ORS 475.999. He assigns error to the trial court's denial of his motion to suppress. We review for errors of law and affirm.

Portland probation officers called for police back up at a Portland home after discovering one of their probationers, Quaschnick, in the possession of marijuana and an assault style knife. Quaschnick was found in the living room area of his home with two to three other individuals.² All were asked to step out of the house onto the porch. Several minutes later, Officers Goldschmidt and Reyna arrived. Goldschmidt placed Quaschnick under arrest. Quaschnick indicated that, while he shared the common areas of the house, configured as a single family residence, there were separately rented bedrooms for which he could not give consent to search. However, the officers obtained consent from Quaschnick and another occupant, Gilbert, to search their rooms and all common areas. According to a police report, Reyna then accompanied a probation officer inside the house to search the downstairs common area where they found six bags of marijuana and other evidence of possible drug sale activity.

Goldschmidt then accompanied the probation officer inside and, concerned about whether all the residents were out of the house, provided cover for the probation officer to search Quaschnick's room. The probation officer found a large quantity of marijuana packaged for sale but no other weapons. Because the three story house had many rooms and only two to three individuals were removed from the home, Goldschmidt then questioned Quaschnick and Gilbert as to whether anyone remained inside. Gilbert stated no one else was in the house. However, Quaschnick was uncertain if others were present in the house and attempted to explain which individuals lived in which rooms. At that point, Goldschmidt believed that it was necessary to "clear" the house.

Goldschmidt explained that he concluded that a protective sweep was necessary based on several factors. First, one month before, Goldschmidt had responded to a complaint of a laser sighting coming from the house. In Goldschmidt's experience, such lasers are commonly attached to guns or rifles for accurate shooting. Goldschmidt was also told by his former partner that a month earlier the residents of the house were observed possessing several firearms, including a Glock semi-automatic handgun. Additionally, Goldschmidt's experience was that weapons are commonly found in conjunction with drug sale operations. Thus, his knowledge of firearms at the house one month before and of suspected drug sale activity did not, in his opinion, make for a "safe combination." Goldschmidt's concern was also based on the current discovery of an assault-style weapon on Quaschnick. Finally, Goldschmidt was uncertain whether other individuals remained in the house, where drug and vice officers would be required to remain for 25 to 30 minutes to inventory and process the drugs.

Goldschmidt and Officer Leloff then undertook a "protective sweep" of the house. The house had seven rooms that were rented separately and equipped with dead bolts. The officers checked all the rooms with unlocked doors and any accessible areas where a small person could hide. On the second floor, defendant's door was unlocked and, Goldschmidt testified, ajar. It led to defendant's bedroom on the third floor. The officers entered, encountered defendant, and noticed marijuana and packaging and growing equipment in his room. They arrested defendant, subsequently obtained consent from him to search the room further, and found two rifles in a closet adjacent to his room.

Article I, section 9, of the Oregon Constitution³ provides safeguards against unreasonable search and seizure and, hence, protects both privacy and possessory interests. State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986). Defendant argues that the officers conducted an unreasonable search when they entered his room. He agrees that when a police officer is at a lawful vantage point and observes contraband or illegal conduct in "plain view," the officer has not conducted a search in the constitutional sense. State v. Ainsworth, 310 Or. 613, 617, 801 P.2d 749 (1990). However, he argues that the officers were not legitimately in his room when they observed the marijuana. See State v. Slowikowski, 307 Or. 19, 23, 761 P.2d 1315 (1988) (focusing on whether officers were legitimately on premises when marijuana was detected). Thus, defendant argues, his subsequent arrest and consent to search his room were invalid, and the evidence of the drugs and firearms is inadmissible.

The state argues that the officers were properly in defendant's room, where they discovered the contraband in plain view, pursuant to a "protective sweep" of the house for officer safety incident to the arrest of the probationer. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The trial court agreed with the state, denied the motion to suppress and, on a stipulated facts trial, convicted defendant of the manufacture, delivery, and possession of a controlled substance. ORS 475.992; ORS 475.999.

As a general rule, under Article I, section 9, of the Oregon Constitution a warrantless search or seizure is per se unreasonable unless it falls within one of the limited exceptions to the warrant requirement. State v. Stevens, 311 Or. 119, 126, 806 P.2d 92 (1991). Oregon's search and seizure law governs when an officer may enter a home, as well as the scope of searches, if any, within the home. "[In the absence of] consent, a warrantless entry can be supported only by exigent circumstances, i.e., where prompt responsive action by police officers is demanded." State v. Davis, 295 Or. 227, 237, 666 P.2d 802 (1983). A warrantless search incident to an arrest can be justified to protect the safety of officers and to prevent the destruction of evidence, as well as to reveal evidence of the crime for which the defendant is being arrested, so long as it is reasonable in light of all the facts. State v. Hoskinson, 320 Or. 83, 86-87, 879 P.2d 180 (1994).

The reasonableness of searches incident to arrest has been traditionally measured by the search's relation in time, scope, and intensity to the arrest in light of all the circumstances. State v. Lander, 137 Or.App. 222, 226, 903 P.2d 903 (1995),rev. den. 323 Or. 114, 913 P.2d 1384 (1996). Thus, even in the officer safety context, we normally determine whether the search was "close both in time and space to the arrest," and whether "the intensity of the search [was] commensurate both with the crime and what was known of the criminal." State v. Chinn, 231 Or. 259, 273, 373 P.2d 392 (1962). The court has limited such searches to areas and items within the immediate control of the arrestee from which the arrestee could obtain a weapon or destroy evidence. Owens, 302 Or. at 200,729 P.2d 524.

The limitation of a search incident to arrest to the area within the immediate control of the arrestee is appropriate when the officer perceives a security risk from the arrestee. However, such a limitation is not necessarily appropriate when there is a threat to the safety of an officer from others while the officer is making an in-home arrest. We have yet to examine fully what measures are appropriate to protect officers from harm by others in the context of in-home arrests, and it is in this context that the state urges us to adopt the "protective sweep" doctrine announced by the United States Supreme Court in Buie. There, the Supreme Court explained that a "protective sweep" is "a quick and limited search of premises, incident to an arrest and * * * narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Id. at 327, 110 S.Ct. 1093. Under the Fourth Amendment, such an inspection is warranted when there exists "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 334, 110 S.Ct. 1093. Thus, the Buie test provides that, on making an in-home arrest, it is always reasonable for an officer to conduct a cursory search of a house or premises where an officer has a grounded and reasonable suspicion to believe that dangerous persons are present.

Nevertheless, the fact situation in which such a search may occur is narrow. For example, in Buie, the officers possessed an arrest warrant for the defendant and his suspected accomplice in an armed robbery. On entering the home, the officers announced their presence three times and the defendant finally emerged from the basement. Thereafter, an officer entered the basement to ensure that no one else, including the suspected accomplice, remained there. Because of the uncertainty of whether the defendant's accomplice in an armed robbery remained below, the court held that the sweep of the basement was reasonable.

In Oregon, it is well established that

"Article I, section 9 of the Oregon Constitution, does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer

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