State v. Cortman

• Decision Date: 13 November 1968
• Citation: 251 Or. 566,446 P.2d 681
• Parties: The STATE of Oregon, Respondent, v. D. C. CORTMAN, Appellant.
• Court: Oregon Supreme Court

Page 681

446 P.2d 681

251 Or. 566

The STATE of Oregon, Respondent, v. D. C. CORTMAN, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 9, 1968.

Decided Oct. 23, 1968.

Rehearing Denied Nov. 13, 1968.

Morton A. Winkel, Portland, argued the cause and filed briefs for appellant.

Jacob B. Tanzer, Asst. Chief Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and RODMAN, JJ.

GOODWIN, Justice.

Defendant appeals from a conviction of illegal possession of heroin. The primary issue concerns the reception into evidence of the contraband drug.

Defendant asserts three grounds for the exclusion of the evidence: (1) the search warrant which the officers had obtained before entering the defendant's apartment did not sufficiently describe the premises to be searched; (2) the officers did not comply with the so-called 'knock and announce law,' ORS 133.290; ¹ and (3) after the search the officers did not comply with ORS 141.130 which requires officers executing a search warrant to 'forthwith return the warrant to the magistrate and deliver to him a written inventory of the property taken * * *.'

The record reveals that a police officer received a telephone call from an informer who claimed to have observed heroin in the defendant's apartment. The officer, who had some personal knowledge of the defendant's activities and knew his location within the apartment building, went to the magistrate and obtained a warrant. The warrant identified the apartment only by street number and by the name of the occupant. The defendant claims that the warrant was fatally defective because it did not also designate his apartment by its number within the building.

While both the state and federal constitutions require that a search warrant particularly describe the place to be searched, the courts, with few exceptions, have held that a description is sufficient if it permits the officer executing the warrant to locate with reasonable effort the premises to be searched. See, e.g., People v. Estrada, 234 Cal.App.2d 136, 44 Cal.Rptr. 165, 171--172, 11 A.L.R.3d 1307, 1316--1317 (1965); Martin v. United States, 99 F.2d 236 (10th Cir. 1938); United States v. Pisano, 191 F.Supp. 861 (SD N.Y.1961); United States v. Joseph, 174 F.Supp. 539 (ED Pa.1959).

The purpose of the particular-description requirement is to narrow the scope of the search to those premises for which a magistrate has found probable cause to authorize the search. When the warrant designates the premises by means that will properly limit the search, there is little risk that other premises will be subjected to unreasonable examination. The defendant cites cases holding searches illegal under warrants authorizing searches in premises designated only by the street number of a multiple-unit apartment building. But none of these cases involve a warrant containing the name of the occupant whose rooms were to be searched, and they offer the defendant no support. See, e.g., Siverson v. Olson, 149 Or. 323, 40 P.2d 65 (1935), and cases cited in the Annotation 11 A.L.R.3d 1330, 1333-1334 (1967). In Smith v. McDuffee, 72 Or. 276, 283--284, 142 P. 558, 560, 143 P. 929 (1914), we held that a description in a warrant was sufficient if, with the instrument before him, 'a surveyor, either with or without the aid of extrinsic evidence, could locate the premises with reasonable certainty.' This language, if it ever had any utility in defining the constitutional requirements of a warrant, appears to have outlived its usefulness and should be overruled. The relevant inquiry is whether a police officer can execute the warrant without straying into premises which he has no authority to enter.

We hold that the warrant employed in the case at bar sufficiently described the premises to be searched.

On the issue of compliance with Oregon's 'knock and announce' law, one of the officers who executed the warrant testified:

'A * * * I knocked. I didn't knock real loud, yet I'm sure I knocked loud enough that anyone in the room would have heard it.

'* * * I then said, 'We are police officers. We have a search warrant.' And at this time I could hear the scurrying about inside the room and I knocked again; this time a little bit louder and I got no response. No one seemed to come to the door and at this time Officer Giani and I pushed the door in.

'* * *.'

The United States Supreme Court, under a federal statute similar to ORS 133.290, recently excluded evidence (narcotics) seized by federal agents who knocked but did not announce their identity and purpose before entering a suspect's apartment. Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). The purpose of such statutes is to forbid the unannounced intrusion into a dwelling. The reasons underlying the statutes are grounded in practical experience: a police officer entering a house must guard against the possibility that he might be mistaken for someone with no right to be there. See Sabbath v. United States, supra.

Where, as here, the court found that the officers made the required announcement, we believe that the purposes of the statute were served and that it would be unrealistic to require the officers to delay their entry for a fixed period of time after making their presence and purpose known. The reasonableness of the officers' delay in a given set of circumstances will depend upon a number of factors, including the likelihood of destruction of evidence, danger to the officers, or danger to others. See People v. Maddox, 46 Cal.2d 301, 306, 294 P.2d 6, cert. denied 352 U.S. 858, 77 S.Ct. 81, 1 L.Ed.2d 65 (1956). We hold that the failure of the officers to delay their entry until after the defendant could dispose of the evidence did not constitute a ground for excluding it.

Finally, the defendant argues that the search was rendered illegal by the failure of the officers, after the fact, to comply with ORS 141.130. Since the search was conducted under a warrant valid on its face, and since we have held that the search itself was reasonable, a good search was not made bad by the failure of the officers thereafter to make a prompt inventory and return. See Rose v. United States, 274 F. 245, 250--251 (6th Cir. 1921). While the requirement of a prompt return is no doubt a valuable safeguard of the property rights of individuals, these rights can be protected without resort to the automatic invocation of the exclusionary rule. The privacy of the individual, which is protected by the Fourth Amendment, has already been invaded by the time the inventory-and-return statute becomes relevant. The exclusion of trustworthy evidence that has lawfully come into the possession of the government would penalize society without serving a constitutional purpose. We conclude that the motion to suppress was properly overruled, and that the evidence when offered upon trial was properly received.

The defendant has also sought to attack the search warrant used in this case by asserting that, because the officer obtained his information through the services of an informer, the defendant was entitled as a matter of law to confront the informer as a condition precedent to the court's ruling upon the validity of the warrant. The same proposition was rejected by McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). In McCray, the search was incident to an arrest and without a warrant, but the question of probable cause involved the same considerations that apply to the issuance of a warrant. The court held that if the officer's sworn testimony revealed that he had probable cause to make the arrest, even though the officer's information was...