State v. Kelgard

• Decision Date: 14 May 1979
• Docket Number: No. 17-929A,No. 17-929B,17-929B,17-929A
• Citation: 40 Or.App. 205,594 P.2d 1271
• Parties: STATE of Oregon, Respondent, v. Craig Lester KELGARD, Appellant. STATE of Oregon, Respondent, v. Lori Ann HEDGECOCK, Appellant. ; CA 11589,; CA 11591.
• Court: Oregon Court of Appeals

Page 1271

594 P.2d 1271

40 Or.App. 205

STATE of Oregon, Respondent, v. Craig Lester KELGARD, Appellant.

STATE of Oregon, Respondent, v. Lori Ann HEDGECOCK, Appellant.

No. 17-929B; CA 11589, No. 17-929A; CA 11591.

Court of Appeals of Oregon.

Argued and Submitted Feb. 22, 1979.

Decided May 14, 1979.

James E. Mountain, Jr., Deputy Public Defender, Salem, argued the cause for appellants. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Catherine Allan, Asst. Atty. Gen., Salem, argued the cause for respondent. With her 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.

Defendants were convicted of three counts of criminal activity in drugs. They assign as error the denial of their motion to suppress evidence seized during a warrantless search of their residence. The primary issue is whether the taint of the illegal entry and search of the residence was purged by defendant Hedgecock's consent to search the residence. We hold that it was not and therefore reverse.

The arresting officer, using binoculars, spotted what he thought were several marijuana plants in the upstairs window of defendants' house. He radioed for assistance and the two officers identified themselves to defendant Hedgecock at the front door. They asked to speak to her and she agreed, but her two large dogs were barking loudly and it was agreed that she should put them away. She closed the door, but did not lock it. After 30 seconds to a minute had elapsed, the arresting officer sent the backup officer around the outside of the house to determine if the plants had been moved. The backup officer reported he could not see them. The arresting officer then unlatched the door, entered the house and ran up the stairs, determined that the plants had not been moved, and came down the stairs. The defendant had by then returned from putting the dogs away. The arresting officer said to the backup officer, in defendant's presence, that the plants were still upstairs. At this point the arresting officer advised defendant of her Miranda rights. The defendant and the arresting officer discussed whether defendant would be cited or whether she would be transported to jail. The arresting officer told defendant that she would not be taken to jail unless narcotics were found. The arresting officer showed defendant a consent form, authorizing a search of her house, and asked her to sign it. Eventually she complied.

A warrantless search and seizure is per se an unreasonable government intrusion and the state has the burden of establishing the validity of such an intrusion. State v. Gilbert, 24 Or.App. 907, 547 P.2d 632 Rev. den. (1976).

The trial court made written findings on all of the issues bearing on the validity of the intrusion, but some of the trial court's findings were actually conclusions of law. ¹ We are bound by the facts implicitly found which support those conclusions, Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968), but we are not bound by the conclusions themselves. State v. Ward, 38 Or.App. 425, 590 P.2d 296 (1979); State v. Cobb, 22 Or.App. 510, 539 P.2d 1140 Rev. den. (1975). Our review leads us to conclude that the search of the residence was unlawful and that the taint arising from the unlawful search was not purged by intervening circumstances or independent causation.

The arresting officer, when he saw what appeared to be marijuana plants in defendants' house, had probable cause to believe that contraband was present. However, there was evidence of no exigent circumstances to excuse his failure to procure a warrant at that point. Once the officers had determined to continue without a warrant and had indicated they wished to speak to defendant Hedgecock, and once she had closed the door to put away the dogs, they might have feared she would dispose of the evidence. However, whether exigent circumstances exist is normally determined at the time the officer with probable cause decides whether to proceed with or without a warrant. The officer who chooses to act without a warrant cannot create his own exigent circumstances...