State v. Eacret, 77-3025-C-3

• Citation: 595 P.2d 490,40 Or.App. 341
• Decision Date: 21 May 1979
• Docket Number: No. 77-3025-C-3,77-3025-C-3
• Parties: STATE of Oregon, Respondent, v. Barbara Irene EACRET, Appellant. ; CA 11395.
• Court: Oregon Court of Appeals

Page 490

595 P.2d 490

40 Or.App. 341

STATE of Oregon, Respondent, v. Barbara Irene EACRET, Appellant.

No. 77-3025-C-3; CA 11395.

Court of Appeals of Oregon.

Argued and Submitted Feb. 22, 1979.

Decided May 21, 1979.

Stephanie A. Smythe, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.

James M. Brown, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C. J., and TANZER, RICHARDSON and ROBERTS, JJ.

TANZER, Judge.

Defendant appeals from her conviction of first-degree manslaughter of her husband. She assigns as error the denial of her motion to suppress evidence seized from her residence without a warrant and the admission of testimony that she made certain threats to others. We reverse and remand for a new trial because several items of evidence admitted at the trial were seized without a warrant in violation of the Fourth Amendment to the United States Constitution and Article I, § 9 of the Oregon Constitution.

On November 23, 1977, at approximately 5:30 p. m., police officers in the city of Medford received a report of a shooting at defendant's residence. When the first officer arrived, defendant was standing in the doorway of her residence and directed the officer to her husband's dead body lying in the hallway inside the house. Other officers arrived. Defendant repeated several times, "I shot him, I had to shoot him." One officer asked where the gun was, and she pointed toward the bedroom. She was twice advised of her Miranda rights and stated that she wished to talk to her attorney. The officers did not question her further, except to ask again where the gun was; she responded that it was under the mattress in the master bedroom. The officers then found it there, but did not seize it.

The investigation on November 23 continued for several hours. During that time, officers took several photographs and observed numerous items of evidentiary value in plain view inside the house, but nothing except the body of the decedent was removed that day. At approximately 9:45 p. m., the police left the scene of the homicide. One officer stayed in the house to stand guard until the next day, and he was relieved by other officers during the night and following morning. No one else remained in the house.

After noon on the next day, November 24, several officers returned to the house to resume their investigation. They had no search warrant and, so far as the transcript shows, had not attempted to obtain one. They took additional photographs and seized a number of items from the bedroom where the shooting occurred, including a bullet from the floor, the gun from under the mattress, a bedspread, two beer bottles, a ceiling panel showing an impact point of the bullet found on the floor, and a revolver and four rifles from the bedroom closet. The bullet, two handguns, the ceiling panel and numerous photographs were among the state's exhibits received at defendant's trial.

A search or seizure without a warrant is per se constitutionally unreasonable, subject only to a few well-delineated exceptions. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412-13, 57 L.Ed.2d 290, 298-99 (1978). To justify a warrantless search or seizure, the state must prove there was probable cause to believe that the search would disclose the fruits or incriminating evidence of crime and that exigent circumstances outweighed the need for judicial predetermination of probable cause. State v. Matsen, 38 Or.App. 7, 9-10, 588 P.2d 1284 Rev. allowed (1979); State v. Basler, 24 Or.App. 723, 727, 546 P.2d 1084 Rev. den. (1976). Here, the officers had probable cause to search; the only question is whether there were exigent circumstances justifying the failure to obtain a warrant.

The police began their investigation in this case immediately after the homicide on November 23. The initial phase of investigation ceased that evening; the officer who remained at the house was assigned to guard, not to investigate, the scene of the homicide. The officers returned the following day after noon to resume the investigation. While law enforcement officers are not necessarily required to seek a warrant during the course of a continuous investigation, State v. Basler, 24 Or.App. at 728, 546 P.2d 1084, each phase of an investigation that is not one continuous transaction must be analyzed separately. State v. Allen/Reed, 12 Or.App. 633, 637-39, 508 P.2d 472 (1973). Here, the investigations of November 23 and 24 were distinct, having been interrupted by over 14 hours during which there was no search for evidence or causes of the homicide. Thus each investigation must be assessed separately.

The first phase was lawful. When the police arrived at defendant's residence immediately after the homicide, defendant directed them inside to the victim's body. They were properly concerned about the location of the homicide weapon, the safety of everyone present, and the preservation of evidence. Under those circumstances, it would be unreasonable to delay investigation until a warrant could be obtained. The need to protect evidence from destruction, take the defendant into custody and arrange for the care of her children constituted exigent circumstances justifying the officers' presence at the scene and an immediate investigation of the crime. ¹ Being lawfully on the premises, the officers were entitled to photograph and seize evidence in plain view. State v. Corbin, 22 Or.App. 505, 508-509, 539 P.2d 1113 Rev. den. (1975). However, only the victim's body was seized on the day of the homicide, and only some of the photographs admitted at trial were taken then.

The second phase was not based upon exigent circumstances. By 9:45 p. m. on November 23, the defendant, her children, and the victim's body had been removed from the house, the officers were satisfied that no further search for evidence was immediately necessary, and the house was secured by posting an officer to guard it until the next day. At that point, the exigent circumstances justifying the initial warrantless intrusion no longer existed. The initial exigencies did not carry over to the second phase of the investigation. See State v. Brothers, 4 Or.App. 253, 258-59, 478 P.2d 442 (1970). Regarding a similar situation in Mincey v. Arizona, 437 U.S. at 394, 98 S.Ct. at 2415, 57 L.Ed.2d at 301, the United States Supreme Court stated:

"* * * There was no indication that evidence would be lost, destroyed or removed during the time required to obtain a search warrant. Indeed, the police guard at the apartment minimized that possibility. And there is no suggestion that a search warrant could not easily and conveniently have been obtained. We decline to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search."

See also State v. Brothers, 4 Or.App. at 258, 478 P.2d 442. The state has not offered justification for the failure to obtain a warrant, and none is apparent from the record. Because a warrantless search or seizure is per se constitutionally unreasonable unless justified by exigent circumstances, and because there were no exigent...