State v. Follett

• Citation: 115 Or.App. 672,840 P.2d 1298
• Decision Date: 21 October 1992
• Docket Number: CR-0620-WE
• Parties: , 61 USLW 2315 STATE of Oregon, Respondent, v. Gregory Alan FOLLETT, Appellant. 87-; CA A50664.
• Court: Court of Appeals of Oregon

Page 1298

840 P.2d 1298

115 Or.App. 672, 61 USLW 2315

STATE of Oregon, Respondent, v. Gregory Alan FOLLETT, Appellant.

87-CR-0620-WE; CA A50664.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted Nov. 30, 1990.

Decided Oct. 21, 1992.

Lawrence J. Hall, Deputy Public Defender, Salem, argued the cause, for appellant. With him on the brief, was Sally L. Avera, Public Defender, Salem.

Michael C. Livingston, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief, were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

DE MUNIZ, Judge.

Defendant appeals his convictions for possession of a controlled substance, driving under the influence of intoxicants (DUII) and driving while suspended. ORS 475.992(1); ORS 813.010; ORS 811.175. The issue is whether evidence discovered during a warrantless search of his car, after he suffered an apparent seizure at the police station, is admissible under the "emergency exception" to the warrant requirement. We hold that the evidence is admissible and affirm.

In reviewing the lawfulness of a warrantless search, we are bound by the trial court's findings of historical facts that are supported by evidence in the record. State v. Stevens, 311 Or. 119, 126, 806 P.2d 92 (1991). Accordingly, we take the facts from the trial court's opinion and order denying defendant's motion to suppress.

Deputy Sheriff Moyer went to a grocery store while he was off duty. After parking his car, he saw defendant driving at an unusually slow speed through the parking lot. Defendant parked his car straddling two spaces, with the end of the car extending into the traffic lane. He got out of the car and had difficulty inserting his key into the door lock. He opened the trunk and stood by it for a few moments, but Moyer could not see what he was doing. Then, he closed the trunk and went into the store. He picked up a can of dog food and tried to put it in his basket, but he missed. He picked up another can, tried to put it in the basket and missed again. Moyer approached defendant, but did not smell alcohol. Moyer called 911 to summon a uniformed officer; then he followed defendant outside. He asked defendant if he was okay, and defendant mumbled that he was ill and taking medication. Moyer identified himself as an officer and told defendant that a uniformed officer was on the way. He did not allow defendant to drive or walk away, but he did allow him to call his girlfriend.

Officers Sawyer and Walsh arrived, and Moyer told Sawyer what he had observed. Sawyer asked defendant for identification. Defendant said that he had none. His eyes were glassy, and he did not focus on Sawyer when the officer spoke to him. Sawyer asked defendant about his wallet, which he could see in defendant's pocket. Defendant grinned, turned around and pulled the wallet out, but shielded it from Sawyer's view. He took out a rental receipt that had his name on it and told Sawyer that his license was probably at home. Defendant's demeanor alternated several times between cooperation and belligerence. His mouth twitched, and he was unsteady on his feet. Sawyer arrested him for DUII.

Walsh took defendant to the police station. Sawyer went to search defendant's car, but the door was locked, so he went to the police station. When he arrived, defendant was struggling with three officers and "displayed uncharacteristic strength." After the fracas, defendant lay on the floor. His eyes rolled back in his head. He foamed at the mouth, drooled and began making "guttural sounds." Sawyer became concerned about defendant's welfare. Defendant's condition was consistent with what Sawyer knew to be the symptoms of cocaine overdose. Sawyer searched defendant's wallet and jacket to try to determine what substance defendant may have ingested. He found some marijuana.

Sawyer decided to return to defendant's car and search it in an effort to determine what defendant had ingested. When he returned to the parking lot, defendant's girlfriend and another person were trying to unlock the car by inserting a coat hanger through the window frame. Sawyer asked the girlfriend if she knew what defendant might have consumed, and she said that she did not. Sawyer opened the car. In it, he found a piece of glass and defendant's Oregon I.D. card. Each had a white powdery substance on it. Sawyer radioed the police station and said what he had found. Then, he searched further and found two small bags containing cocaine.

The state and federal constitutions independently prohibit warrantless searches and seizures, unless police act within one of the established exceptions to the warrant requirement. State v. Stevens, supra, 311 Or. at 126, 806 P.2d 92. The trial court ruled that the search of defendant's wallet, jacket and car were all valid under the "emergency doctrine" and denied his motion to suppress. ¹

In State v. Bridewell, 306 Or. 231, 759 P.2d 1054 (1988), the Supreme Court observed that there are actually two "emergency exceptions" to the warrant requirement of Article I, section 9. In that case, the police had responded to a report by the defendant's friend that she had been unable to contact him for several days. When they arrived at his house, the front door was open. They went in and found the house in disarray. The officers did not find the defendant in the house, so they checked his workshop, which was about 125 yards away. The shop door was open, and the officers walked in. Inside, they found marijuana plants, and the defendant was charged with manufacturing a controlled substance. ORS 475.992(1).

The court first examined whether the marijuana plants were admissible under the "Emergency/Exigent Circumstances" doctrine. Evidence that police discover after a warrantless entry will not be suppressed, if the police faced exigent circumstances and had probable cause to believe that a crime had been committed. The court concluded that neither requirement had been met. 306 Or. at 236, 759 P.2d 1054.

Next, the court examined the admissibility of the evidence under the "Emergency Aid Doctrine," which it had tacitly recognized, but had never applied. 306 Or. at 236-37, 759 P.2d 1054 (citing State v. Davis, 295 Or. 227, 238, 666 P.2d 802 (1983)). The court distinguished this exception by noting that it "does not require probable cause to believe that a crime has been committed," although it does require a "true emergency." 306 Or. at 236, 759 P.2d 1054. The court emphasized:

"We never have expressly held that emergencies solely justify warrantless entries in a criminal context, and we decline to do so here." 306 Or. at 237, 759 P.2d 1054.

The court found that the Emergency Aid Doctrine did not apply, because the threshold requirement of a true emergency had not been met. 306 Or. at 237, 759 P.2d 1054.

Because the Supreme Court has yet to apply the "Emergency Aid Doctrine," its precise contours remain unclear. We have relied on State v. Bridewell, supra, in holding that evidence discovered after a warrantless entry in a noncriminal context is inadmissible. We relied on this passage:

"In situations not implicating criminal law enforcement functions and not justified by the emergency/exigent circumstances exception, law enforcement officers, like private individuals, also may enter to render emergency assistance. [H]owever, incriminating evidence arising from the intrusion by law enforcement officers must be suppressed." 306 Or. at 239, 759 P.2d 1054. (Footnotes omitted.)

That passage is dictum, because the court had already concluded that there had been no emergency, and it is inconsistent with the court's express declaration that it did not decide whether "emergencies solely justify warrantless entries in a criminal context." 306 Or. at 237, 759 P.2d 1054. (Emphasis supplied.) If a warrantless entry was justified solely by a true emergency, then the entry would not occur in a criminal context. An entry in a noncriminal context would not be within the scope of the "Emergency Aid Doctrine," as described in Bridewell, despite the fact that the Supreme Court "tacitly has embraced" it. 306 Or. at 236, 759 P.2d 1054.

Bridewell 's dictum cannot be satisfactorily reconciled with the court's reasoning in State v. Miller, 300 Or. 203, 709 P.2d 225 (1985), in which the court expressly recognized an "emergency exception" to the warrant requirement. In Miller, a psychiatrist had told an officer that the defendant claimed to have killed someone. The defendant admitted to the officer that he had hurt somebody, that he "couldn't wake him up" and that the person was in his motel room. The officer took the defendant's keys, opened his motel room and found the victim's body. In holding that the entry into the defendant's room was lawful under the emergency exception, the court said:

"[T]he initial entry into defendant's room was lawful based upon the police officer's reasonable belief, in the circumstances, that he might be able to render lifesaving medical assistance to the victim." 300 Or. at 229, 709 P.2d 225.

The court held that evidence relating to the discovery of the victim's body was properly admitted at the defendant's trial. 300 Or. at 230, 709 P.2d 225.

Although the warrantless entry was related to a criminal investigation, the officer's purpose was to render emergency aid to the victim. In justifying the entry on that ground, the court made no mention of any requirement that the officer had to reasonably believe that a crime had been committed or that evidence of a crime would be found in the defendant's room. We recognize that such a discussion was not critical to the decision in Miller, because the officer's belief that he could render emergency assistance to the victim could only have been reasonable if he reasonably believed that evidence of a crime (i.e., the victim) would be found in the defendant's room. However, it is significant that the court did not mention it at all. Instead, it...