State v. Ford

• Decision Date: 26 November 1990
• Citation: 801 P.2d 754,310 Or. 623
• Court: Oregon Supreme Court
• Parties: STATE of Oregon, Petitioner on Review, v. Charles Timothy FORD, Respondent on Review. TC 10-87-01668; CA A45907; SC S36906.

Page 754

801 P.2d 754

310 Or. 623

STATE of Oregon, Petitioner on Review, v. Charles Timothy FORD, Respondent on Review.

TC 10-87-01668; CA A45907; SC S36906.

Supreme Court of Oregon.

Argued and Submitted June 6, 1990.

Decided Nov. 26, 1990.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the petition were Dave Frohnmayer, Atty. Gen. and Virginia L. Linder, Sol. Gen., Salem.

Peter Gartlan, Deputy Public Defender, Salem, argued the cause for respondent on review. With him on the response was Sally L. Avera, Public Defender, Salem.

Before PETERSON, C.J., and CARSON, GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

VAN HOOMISSEN, Justice.

Defendant appeals his conviction for unlawful possession of a controlled substance. ORS 475.992. He contends that the trial court erred in refusing to suppress evidence obtained by police officers after a search allegedly conducted in violation of the "knock and announce" rule, ORS 133.235(6), AND OF ARTICLE I¹, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution. The Court of Appeals found an "aggravated" statutory violation requiring suppression, and ordered a new trial. ² State v. Ford, 99 Or.App. 1, 780 P.2d 1192 (1989). Assuming that the officers did not comply with the requirements of ORS 133.235(6), we hold that their noncompliance was excused. We further hold that the officers did not violate either the Oregon or the federal constitution. Accordingly, we reverse the Court of Appeals' decision and affirm the circuit court's judgment.

FACTS

Eugene police officer Nauta stopped a car for a traffic violation. He asked the driver and the passenger for their names and addresses. The driver stated that her name was Amy Jones and that she and her passenger lived at 975 West 5th Avenue, Apartment 3, in Eugene. The passenger, who identified himself as Douglas Ford, confirmed that he lived at that address and stated that he just had been released on temporary leave from the Oregon State Penitentiary. A radio check of the name Douglas Ford revealed that Jones' passenger generally matched the description of a person bearing that name. Nauta saw a blue backpack on the back seat of the car. Ford appeared quite nervous and agitated and Nauta suspected that he might be using methamphetamine. ³ Nauta then asked Jones if Ford "might be armed with a gun." Jones answered that she did not know whether Ford had a gun. Nauta became concerned for his safety and called for police "backup." Nauta then searched the glove box and under the front seat of Jones' car for weapons. Finding none, Nauta issued Jones several traffic citations and then permitted her and Ford to leave the area.

The next day, an anonymous informant told the Eugene police that Charles Ford was currently at 975 West 5th Avenue, Apartment 3, in Eugene, where Ford and Amy Jones resided; that Ford had five concealable firearms in his possession, two of which he carried on his person and three of which were in a blue backpack that Ford kept with him at all times; that Ford was in possession of methamphetamine; and that Ford had a substantial quantity of jewelry, believed to be stolen, in his backpack. The informant's information was based on personal observation. Some of the information was corroborated by Nauta's earlier encounter with defendant and Jones.

Nauta recognized the name Amy Jones and the address given by the informant and, remembering that Jones had had a passenger with her the day before who had identified himself as Douglas Ford, Nauta compared police photos of Charles Ford with those of Douglas Ford. Nauta realized that Jones' passenger the day before in fact had been defendant Charles Ford, a convicted felon ⁴ with outstanding arrest warrants for failure to appear on felony driving while suspended and misdemeanor criminal trespass I charges. ⁵ Another officer then told Nauta that about three weeks earlier the owner of a second-hand store had told him that Charles Ford recently sold the owner a concealable firearm, and that at the time Ford had another concealable firearm in his possession.

The officers commenced the process to obtain a warrant to search Apartment 3 to arrest defendant on the outstanding arrest warrants and to seize any concealable firearms in his possession. Meanwhile, two officers drove to the neighborhood to observe the apartment. While the officers were in the apartment's parking lot, they saw a man step onto the balcony of Apartment 3 and watch them until they walked out of sight. Another officer observing Apartment 3 saw a man being admitted into the apartment by someone inside. Neither of the men seen by the officers was defendant. Jones' car, in which Nauta had seen defendant and Jones the day before, was parked directly below the apartment in a stall designated for Apartment 3.

The officers obtained a search warrant to search Apartment 3 to arrest defendant on the outstanding arrest warrants and to seize any concealable firearms in his possession. ⁶ The officers found a handgun in a blue backpack similar to the backpack Nauta had seen on the back seat of Jones' car the day before. They also saw a syringe loaded with methamphetamine and some drug paraphernalia in plain view on a coffee table. After defendant arrived at the police station, the officers searched his coat and found a cigarette package containing methamphetamine. When the officers reopened the backpack at the police station they discovered a second handgun and ammunition for both guns. While in police custody, defendant made incriminating statements to the police. Defendant subsequently was charged with unlawful possession of a controlled substance and unlawful possession of a concealable firearm. The unlawful possession of a firearm charge later was dismissed on the state's motion.

                6  The search warrant was executed by a six-to-eight officer "tactical team" wearing face masks and camouflage military fatigue uniforms with placards on the front bearing the word "POLICE" in large letters.  After one officer opened the screen door, another officer struck the apartment door with a battering-ram;  while a third officer shouted, "Police officers with a search warrant."   It took about three hits with the battering-ram for the door to break open.  When it did, the officers entered the apartment and immediately arrested defendant.  Everyone in the apartment was in custody within 20-30 seconds
                

At trial, defendant moved to suppress all the evidence seized by the officers at the time of his arrest, arguing that it was seized during a search allegedly conducted in violation of the knock and announce rule, ORS 133.235(6), supra n. 1, and of Article I, section 9, of the Oregon Constitution, infra n. 23, and the Fourth Amendment to the United States Constitution, infra n. 24. He also moved to suppress the methamphetamine found in his coat and the second handgun found in his backpack at the police station and the statements he made to the officers after his arrest, arguing that they were derivative of those violations. Without making any express findings of fact, the trial court ordered suppression as to defendant's backpack and its contents, but denied suppression of the methamphetamine found in his coat at the police station and his statements to the officers. ⁷

A jury convicted defendant of unlawful possession of a controlled substance. He appealed to the Court of Appeals, arguing that the trial court had erred in denying his motion to suppress the methamphetamine and his statements to the officers. As noted, the unlawful possession of a firearm charge was dismissed and the trial court's suppression of the backpack and its contents was not in issue on appeal.

A majority of the Court of Appeals, sitting in banc, concluded that the officers had violated the knock and announce requirements of ORS 133.235(6) and that the violation was "aggravated," requiring suppression of the evidence and a new trial. ⁸ The Court of Appeals majority dismissed "[T]here is no suggestion [in this case] that the police thought that they were about to execute a warrant for a major drug ring or that the occupants were dangerous. [The officers] did have reason to believe that defendant carried one or more pistols, but they also knew that the warrants for his arrest related to non-violent offenses and that he had no history of violence." 99 Or.App. at 7, 780 P.2d 1192.

the officers' articulated apprehension of peril as follows:

Judge Deits, joined by Judges Richardson and Rossman, dissented. Finding a statutory violation, the dissenters concluded that the facts did not show an "aggravated" violation. Writing for the dissenters, Judge Deits explained:

"I am unaware of any requirement that the warrant must relate to a major drug ring before a violation of the knock and announce statute will be excused. The statement that there was no suggestion that the occupants were dangerous ignores reality. The officers expressed concerns for their safety, and those concerns were supported by objective facts.

" * * * It is preposterous to hold that an officer cannot act consistent with legitimately held safety concerns when executing a warrant on a suspected drug user believed to be in possession of drugs, stolen property and weapons, unless the officer has knowledge that the person has used the weapons in a violent manner or has a history of violence." 99 Or.App. at 10-11, 780 P.2d 1192. (Footnote omitted.)

The dissenters would have affirmed defendant's conviction.

On review, the state contends that the Court of Appeals erred in reversing the trial court, arguing that the officers had an apprehension of peril at the time they entered the apartment which excused their unannounced entry. ⁹ In the alternative, the state argues that, even if the entry violated ORS 133.235, the evidence seized should not be excluded because the police inevitably would have...