State v. Hall

• Decision Date: 22 March 2000
• Citation: 999 P.2d 509,166 Or. App. 348
• Parties: STATE of Oregon, Appellant, v. Matthew Frank HALL and Linda Bremer, Respondents.
• Court: Oregon Court of Appeals

999 P.2d 509

166 Or. App. 348

STATE of Oregon, Appellant, v. Matthew Frank HALL and Linda Bremer, Respondents.

(97-1585-C-2; CA A98283)

Court of Appeals of Oregon.

Argued and Submitted April 22, 1999.

Decided March 22, 2000.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Jesse Wm. Barton, Deputy Public Defender, argued the cause for respondents. With him on the brief was David E. Groom, Public Defender.

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

WOLLHEIM, J.

The state appeals from an order suppressing methamphetamine and drug paraphernalia discovered when officers executed an initial search warrant for the arrest of defendant Hall. The trial court held that the suppression was required both because the state failed to prove the existence of the two search warrants in this case and because the initial search of defendant's home in which the drugs and paraphernalia were discovered was pretextual. On review for errors of law, we reverse and remand.

The relevant facts are as follows. On April 9, 1997, pursuant to a search warrant, officers with the Jackson County Narcotics Enforcement Team (JACNET) and Special Emergency Response Team (SERT), entered and searched defendants' residence to arrest Hall on outstanding warrants for his arrest. Officers eventually located and arrested Hall in a downstairs room of the residence. During the search of an upstairs room of the residence for Hall, Officer Havice, a member of the SERT team, discovered in plain view methamphetamine and drug paraphernalia. Based on those observations, the officers obtained a second warrant and subsequently searched the residence for drug evidence. Defendants were then charged with possession, manufacture, and delivery of a controlled substance, ORS 475.992, endangering the welfare of a minor, ORS 163.575, child neglect, ORS 163.547, and conspiracy to manufacture and deliver a controlled substance, ORS 161.450.

Defendants filed a motion to suppress the methamphetamine and drug paraphernalia. In the motion to suppress, the only argument made was that Havice exceeded the scope of the initial search warrant because, upon entry of the house, the officers were immediately informed of Hall's whereabouts downstairs and Havice conducted the search of the upstairs room after Hall was placed into custody. Defendants did not file the required motion supported by affidavit, pursuant to ORS 133.693(2), to controvert the affidavit for the second search warrant for drug evidence. They argued simply that, because the "second search warrant was issued based upon evidence discovered during the first search" and because that discovery was the result of Havice exceeding the scope of the initial search for Hall, "[a]ll evidence found during the upstairs search must be suppressed." Thus, defendants apparently relied on former ORS 133.683,² that evidence derived from illegal conduct cannot properly be relied on to supply probable cause for a search warrant. State v. Morrison/Bartce, 107 Or.App. 343, 349, 812 P.2d 832,on recons 108 Or.App. 766, 816 P.2d 1217 (1991). Defendants asserted that, without that information, the affidavit failed to provide probable cause. See State v. Binner, 128 Or.App. 639, 646, 877 P.2d 642, rev. den 320 Or. 325, 883 P.2d 1303 (1994) ("When an application includes constitutionally tainted information, the correct action is for the magistrate and reviewing court to excise from the application all such information and to determine whether the remaining information is sufficient to establish probable cause."); State v. Hitesman/Page, 113 Or.App. 356, 359, 833 P.2d 306,rev. den 314 Or. 574, 840 P.2d 1296 (1992). In response, the prosecutor argued that the initial search was permissible in scope for officer-safety reasons and that Havice did not learn of Hall's arrest until after Havice searched the upstairs room.

At the hearing on the motion to suppress, Detectives Brown and Thomson, assigned to JACNET, testified. Thomson testified that he had received information that Hall was living in the area and might be involved in an illegal drug operation. Thomson explained that he had learned that there were existing outstanding arrest warrants for Hall in Jackson County and in Idaho and that he had also received information from the California Bureau of Narcotics Enforcement (BNE) concerning Hall's criminal history. Thomson stated that an agent from the California BNE described Hall as

"a dangerous individual; that they've arrested him several times over the course of several years; and that every time they've run into him, he's always armed, always got a gun with him. Several of his arrests on his criminal history indicate that he's been arrested while in possession of controlled substance while being armed."

Thomson also stated that Hall's record indicated several arrests for assault with a deadly weapon.

Brown testified that he then placed defendants' residence under police surveillance. During that time, Brown identified Hall at the residence. Police also saw three other males and two females at the residence. Brown explained that he identified Hall when Hall was outside of the residence but did not arrest him at that point because it was not practical or safe. In particular, Brown explained that he and other officers "were some distance away" from defendant and that "due to his violent history that we were aware of, it wasn't, in our opinion, safe for two officers or three officers without body armor, et cetera, to initiate arrest on him." After identifying Hall at the residence, Brown testified that he obtained a warrant to search the residence for Hall to make the arrest. Thomson testified that, although he and Brown had their suspicions that Hall was involved in drug activity in the home, Thomson's interest in executing the search warrant was to arrest Hall on the outstanding arrest warrants.

The detectives testified that they decided to use SERT to execute the search warrant for Hall's arrest "[b]ased on [Hall's] history of being armed; * * * [and] arrests [for] assault with deadly weapons in his past," and "due to Mr. Hall's potential for violence and the fact that there may be weapons in the residence." Havice testified that SERT is a specially trained team used for high risk situations where ordinary patrol officers would not be safe. He explained that, during the execution of the search warrant for Hall's arrest, he wore additional body armor and protective head and eye gear and carried a fully automatic 9mm submachine gun with a light attached. He communicated with other officers by radio but could not hear other members elsewhere in the house unless broadcast over the radio. Havice explained that the SERT team members were briefed about Hall's history involving violence and weapons possession.

Havice also described the initial search. He explained that the eight-man SERT team made a "dynamic" entry into the residence, announcing their presence as police officers as they entered the house. Each pair of officers was assigned to a particular area of the house to sweep simultaneously for Hall's presence. Havice testified that the "sweep" was also intended to "secure" the residence for "safety factors of the team and other members inside the residence." Thus, when a team member encountered a person in the residence, he or she was required to remain with that person until the search was over.

Havice testified that he was the fourth officer who entered the residence and that he cleared the kitchen area with a quick visual check to be sure no one was in the kitchen. Havice explained that his partner encountered defendant Bremer in the hallway. Havice stated that he then proceeded upstairs with another officer to clear the two rooms upstairs. Havice explained that, after clearing the first room, he and the other officer entered a doorway into the second room. He described that room as dark, containing a computer desk and numerous boxes and files, and having a sheet of black plastic stretched across the room from wall to wall. Looking into the room with the lights attached to their weapons, Havice saw no one but surmised that someone could be hiding behind the black plastic.

Havice explained that, to look behind the plastic, he had to cross the room. As he crossed, Havice stated that he shined his light on the computer desk and surrounding area and there observed an electronic scale with "powdery residue" on it. He also stated that he saw a cooler with the top propped open and inside was a large clear plastic bag containing a white powdery substance, which appeared to be methamphetamine. When asked on cross-examination whether he was at that point searching the front part of the room for Hall, Havice answered that he was not, but that, "[i]n order to proceed through the room" to examine behind the plastic, he was searching for trip wires and any sort of "booby trap."

Next, Havice explained that he and his partner tore down the plastic sheet and shined their lights into the part of the room behind it to make sure no one was hiding there. Havice testified that, at that point, he heard a radio transmission indicating that a suspect had been placed into custody and requesting a photo of Hall for identification of the suspect. According to Havice, he then stopped searching the room and proceeded back downstairs. He estimated that his search through the house lasted 30 to 40 seconds.

Bremer testified that when the police entered the residence, she met them in the hallway and immediately told them that Hall was in the bathroom, the room farthest from the police's point of entry into the house. She indicated that some officers proceeded directly to that room, but that only one officer proceeded upstairs. She believed that the officer who proceeded upstairs should...