State v. Jordan

• Decision Date: 22 January 1980
• Citation: 605 P.2d 646,288 Or. 391
• Parties: STATE of Oregon, Respondent, v. Nadine JORDAN, also known as Juanita Adams, Petitioner. CA 8349; SC 25930.
• Court: Oregon Supreme Court

Page 646

605 P.2d 646

288 Or. 391

STATE of Oregon, Respondent, v. Nadine JORDAN, also known as Juanita Adams, Petitioner.

CA 8349; SC 25930.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 3, 1979.

Reargued Nov. 5, 1979.

Decided Jan. 22, 1980.

James E. Mountain, Jr., Deputy Public Defender, Salem, argued and reargued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

W. Benny Won, Asst. Atty. Gen., Salem, argued and reargued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. HOWELL, Justice.

The principal question presented on this appeal is whether a police officer may enter a private dwelling to execute an arrest warrant without obtaining a search warrant.

The facts surrounding the entry and arrest are largely undisputed. Florine Davidson, Sandra Jordan, and defendant Nadine Jordan resided in a house in northeast Portland. Defendant is Sandra Jordan's sister. On January 15, 1977, the house was approached by two Portland police officers, Charles Ault and Sammy Ray Rosson, who had an outstanding warrant for Sandra Jordan's arrest. Ault had learned from reliable sources that Sandra was believed to be living at the house and that she was thought to be driving a yellow Pinto automobile. On the evening in question, a yellow Pinto was parked in the driveway of the house. Ault and Rosson called for reinforcements who surrounded the house. The two then went to the front door and were met by Florine Davidson and defendant Nadine Jordan. The officers stated their purpose and asked the women for their names and some identification.

Defendant Nadine Jordan identified herself as "Juanita Adams" but refused to produce any identification. Both women refused to let the police search the residence. The officers returned to their vehicle and ran a record check on Juanita Adams. The name was reported as an alias for Sandra Jordan. Not knowing whether defendant was Sandra Jordan, the officers returned to the house and took her into custody, intending to establish her identity by means of fingerprinting at the police station.

While seated in the police car, Officer Ault observed a mug shot of Sandra Jordan and was uncertain that he had the right person. He ordered the other officers to return to the house to see if there was another person there who was actually Sandra Jordan. The officers entered the house without a search warrant and eventually found Sandra hiding in the attic.

Defendant was charged with hindering prosecution, ORS 162.325. Prior to trial, she filed a motion to suppress any evidence seized as a result of the entry into her home. The evidence she sought to suppress was the person of Sandra Jordan. The trial court denied the motion and, following a trial, defendant was convicted. Defendant's sole assignment of error on appeal is that the trial court should have suppressed the evidence obtained as a result of a search without a search warrant.

The Court of Appeals affirmed defendant's conviction in an opinion that focused principally on the question of whether the officers had probable cause to believe Sandra Jordan was still in the residence after they had taken defendant into custody. 36 Or.App. 45, 583 P.2d 1161 (1978). The court found that the officers did have such probable cause, and that the entry was therefore justified under ORS 133.235(5), which provides:

"In order to make an arrest, a peace officer may enter premises in which he has probable cause to believe the person to be arrested to be present."

The Court of Appeals' opinion was written prior to this court's decisions in State v. Olson, 287 Or. 157, 598 P.2d 670 (1979), and State v. Peller, 287 Or. 255, 598 P.2d 684 (1979), in which we held that an entry into a private home to arrest, without an arrest warrant, was justified only if the state showed the existence of exigent circumstances. Neither Olson nor Peller decided whether a search warrant in addition to an arrest warrant is necessary to arrest on private premises. That question is now squarely presented.

I

Defendant contends that the failure of the police to obtain a search warrant to enter her premises resulted in a violation of her statutory and constitutional rights. Before turning to the constitutional question in this case, we first examine Oregon statutory law to determine whether the right claimed by the defendant in this case is in fact protected by legislation. See State v. Spada, 286 Or. 305, 594 P.2d 815 (1979). ORS 133.535 provides, in part:

"The following are subject to search and seizure under (statutes authorizing search warrants):

" * * * * *

"(4) A person for whose arrest there is probable cause or who is unlawfully held in concealment."

Although this statute Permits the issuance of a search warrant to an officer seeking to arrest a suspect on private premises, the statute does not purport to Require such a warrant. We conclude from this that Oregon statutes do not require an officer to obtain a search warrant prior to entering a private home to arrest. ¹

II

We now consider the defendant's claim that the police conduct in this case violated article I, section 9 of the Oregon Constitution ² and the fourth amendment to the United States Constitution. ³ Both these constitutional provisions, in substantially identical language, protect against unreasonable searches and seizures.

As background, while the common law recognized that "every man's house is his castle," it also held that "no one charged with a crime can have a castle against the King's or the State's warrant for his arrest." Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 800-01 (1922); 1 Chitty, Criminal Law 51-59 (1816). A peace officer armed with an arrest warrant was therefore permitted to enter a private dwelling to effect an arrest if the officer had reason to believe the suspect was inside the dwelling, regardless of whether the officer also had a search warrant. ⁴

The United States Supreme Court has left unsettled the question whether and under what circumstances an officer may enter private premises to make a warrantless arrest. See United States v. Watson, 423 U.S. 411, 418 n. 6, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 113, n.13, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Coolidge v. New Hampshire, 403 U.S. 443, 474-81, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). This court has held, however, that absent exigent circumstances an arrest warrant is required before a police officer may enter private premises to make an arrest. State v. Peller, supra; State v. Olson, supra. ⁵ When this court decided State v. Olson, supra, we particularly relied on the United States Supreme Court opinion in Coolidge v. New Hampshire, supra, from which we quoted:

" * * * The case of Warden v. Hayden, supra (387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)), where the Court elaborated a 'hot pursuit' justification for the police entry into the defendant's house without a warrant for his arrest, certainly stands by negative implication for the proposition that An arrest warrant is required in the absence of exigent circumstances. * * * " 403 U.S. at 480-81, 91 S.Ct. at 2045 (emphasis added).

We also relied on People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, Cert. denied 429 U.S. 929, 97 S.Ct. 335, 50 L.Ed.2d 299 (1976), from which we quoted the following:

" * * * (I)n the absence of a bona fide emergency, or consent to enter, police action in seizing the individual in the home must be preceded by the judicial authorization of An arrest warrant." 127 Cal.Rptr. at 636, 545 P.2d at 1340 (emphasis added).

Many federal and state courts have held that a police officer may enter private premises to execute a valid arrest warrant as long as the officer reasonably believes that the subject of the arrest warrant is on the premises. See, e. g., United States v. Woods, 560 F.2d 660, 665-66 (5th Cir. 1977), Cert. denied 435 U.S. 906, 98 S.Ct. 1452, 55 L.Ed.2d 497 (1978); United States v. Harper, 550 F.2d 610, 613-14 (10th Cir.), Cert. denied, 434 U.S. 837, 98 S.Ct. 128, 54 L.Ed.2d 99 (1977); United States v. Cravero, 545 F.2d 406, On pet. for rehearing, 545 F.2d 420 (5th Cir. 1976), Cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977); United States v. James, 528 F.2d 999, 1016-17 (5th Cir.), Cert. denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976); Rice v. Wolff, 513 F.2d 1280, 1291-92 (8th Cir. 1975), Rev'd. on other grounds sub nom. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); United States v. Jones, 475 F.2d 723, 729 (5th Cir. 1973); Rodriguez v. Jones, 473 F.2d 599, 605-06 (5th Cir.), Cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973); United States v. Brown, 151 U.S.App.D.C. 365, 369-370, 467 F.2d 419, 423-24 (D.C.Cir.1972); United States v. McKinney, 379 F.2d 259, 262-63 (6th Cir. 1967); United States v. Alexander, 346 F.2d 561 (6th Cir. 1965), Cert. denied, 382 U.S. 993, 86 S.Ct. 575, 15 L.Ed.2d 480 (1966); State v. Platten, 225 Kan. 764, 594 P.2d 201 (1979); Nestor v. State, 243 Md. 438, 221 A.2d 364, 368 (1966); Cook v. State, 35 Md.App. 430, 371 A.2d 433 (1977); State v. Jemison, 14 Ohio St.2d 47, 236 N.E.2d 538 (1968); State v. Clark, 40 Ohio App.2d 365, 319 N.E.2d 605 (1974); Commonwealth v. Terebieniec, --- Pa.Super. ---, 408 A.2d 1120 (1979); State v. McNeal, 251 S.E.2d 484 (W.Va.App.1978); People v. Stibal, 56 Ill.App.3d 1048, 14 Ill.Dec. 652, 372 N.E.2d 931 (1978).

In United States v. Carvero, supra, the court held that "when an officer holds a valid arrest warrant and reasonably believes that its subject is within premises belonging to a third party, he need not obtain a search warrant to enter for the purpose of arresting the suspect." 545 F.2d at 421. Accord, United States v. Woods, supra; United States v. Harper, supra. The Cravero court reasoned that a police...