State v. Matsen

CourtSupreme Court of Oregon
Writing for the CourtLENT
Citation601 P.2d 784,287 Or. 581
PartiesSTATE of Oregon, Respondent, v. Mark Allen MATSEN, Petitioner. STATE of Oregon, Respondent, v. Tyrrell Lee WILSON, Petitioner. SC 26072.
Decision Date23 October 1979

Page 784

601 P.2d 784
287 Or. 581
STATE of Oregon, Respondent,
v.
Mark Allen MATSEN, Petitioner.
STATE of Oregon, Respondent,
v.
Tyrrell Lee WILSON, Petitioner.
SC 26072.
Supreme Court of Oregon, In Banc.
Argued and Submitted June 4, 1979.
Decided Oct. 23, 1979.

Page 785

[287 Or. 582-A] James E. Mountain, Jr., Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief were Gary D. Babcock, Public Defender, and S. Randall Johnson, Law Student, 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.

[287 Or. 583] LENT, Justice.

The defendants were charged with criminal activity in drugs, former ORS 167.207. 1 The trial court denied their respective motions to suppress evidence 2 seized by the police in a warrantless entry of the dwelling where the defendants were present. The defendants were convicted and upon their consolidated appeal the Court of Appeals affirmed. State v. Matsen/Wilson, 38 Or.App. 7, 588 P.2d 1284 (1979). This court allowed review, ORS 2.520; 286 Or. 149 (1979).

Since there is supporting evidence, we are bound by the following material, historical facts. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968).

On September 9, 1977, the police received information that substantial drug traffic was being carried on at the residence in question. During the next two weeks, the police had contacts with several informants and set up surveillance of the house. By September 15, the police had determined the identities of defendants Matsen and Wilson, who were living at the house and were alleged drug distributors. The police also learned that a drug supplier visited the house at least once a week; however, at that time the police knew only that he was called "Max" or "Pete." It was eventually ascertained that his name was Maxwell Pete Tolomei. By September 15, the police

Page 786

were convinced of the informants' reliability and believed they had probable cause to secure a search warrant; however, they desired to catch Tolomei in the act of making a delivery. The police set up street surveillance between September 15 and 21 and observed Tolomei visiting the premises on at least two or three occasions. Certain police [287 Or. 584] officers considered getting search warrants during this time, but the decision was made to gather more information about Tolomei's identity. The police knew, however, that a "John Doe" warrant could have been obtained, based on the information gathered and corroborated at that time.

At about 2 p. m. on September 23, the police received word through their informants that Tolomei would be delivering a large load of marijuana to the residence. Sometime after 2:30 p. m. Tolomei entered the residence and, while he was still there, at 3 p. m. four police officers entered the residence and "froze the premises." 3 The defendants were handcuffed and placed on the floor. The police officers did not inform the defendants that they were under arrest. 4

At about 5:30 p. m., some two and one-half hours after entry, the police began preparation of an affidavit for a search warrant, and at 6:30 p. m. 5 the search warrant thereby obtained arrived at the premises. At that time a complete search of the residence was conducted. The items seized constituted the evidence used by the state against these defendants upon the trial court's denial of the defendants' motions to suppress the evidence.

The Court of Appeals affirmed the trial court's finding that the warrantless entry was based on probable cause and was justified by exigent circumstances. The Court of Appeals held that the unchallenged information obtained by the police was abundantly sufficient to constitute probable cause. The court also [287 Or. 585] held that exigent circumstances existed, because the police could not be certain at any given time of the presence or quantity of drugs unless the supplier was making a delivery; therefore, when Tolomei arrived, a warrantless search was necessary to prevent loss of evidence. 38 Or.App. at 10-11, 588 P.2d 1284.

We are bound by the trial court's finding of what actually happened. Ball v. Gladden, supra. Our function on review is limited to determining whether these historical facts support the trial court's findings of probable cause and exigent circumstances which must meet state and federal constitutional guarantees. State v. Peller, 287 Or. 255, 260, 598 P.2d 684 (1979); State v. Warner, 284 Or. 147, 156-158, 585 P.2d 681 (1978).

Constitutional Claims

Defendants Matsen and Wilson resided at the premises that were searched. Matsen and Wilson as buyers each had a possessory interest in the contraband seized. They chose to conduct their sale inside the residence. Similar facts have been held to give such persons a claim to privacy from government intrusion. See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). 6 Cf., Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

Page 787

Therefore, each defendant may properly claim that the search and seizure has infringed an interest protected by the applicable constitutional provisions. Or.Const. Art. I, § 9; U.S.Const. Amend. IV; State v. Florance, 270 Or. 169, 527 P.2d 1202 (1974).

Probable Cause

The trial court suppressed certain information which was found to be the product of unlawful police [287 Or. 586] surveillance; however, the trial court found sufficient independent and unchallenged evidence to constitute probable cause for the police to search. The evidence clearly supports the trial court's finding that the police had ample information to constitute probable cause to believe that contraband was located in the residence and therefore subject to appropriate seizure. The trial court's finding as to probable cause is affirmed.

Exigent Circumstances

Probable cause by itself justifies only the issuance of a warrant. Or.Const. Art. I, § 9; State v. Olson, 287 Or. 157, 598 P.2d 670 (1979). The state has the additional burden to justify the validity of the warrantless search. ORS 133.693(4). Warrantless entries to effect an arrest or search are Per se unreasonable. State...

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38 practice notes
  • State v. Sullivan, A150021 (Control); A150023
    • United States
    • Court of Appeals of Oregon
    • August 20, 2014
    ...the destruction of evidence, warrantless entry is permissible only when the escape or destruction “was imminent.” State v. Matsen/Wilson, 287 Or. 581, 587, 601 P.2d 784 (1979) (emphasis added). [333 P.3d 1213] In some cases, it is easy to identify the circumstance that creates the demand fo......
  • State v. Caraher
    • United States
    • Supreme Court of Oregon
    • November 2, 1982
    ...State v. Quinn, 290 Or. 383, 390, 623 P.2d 630 (1981); State v. Carlile, 290 Or. 161, 163, 619 P.2d 1280 (1980); State v. Matsen/Wilson, 287 Or. 581, 601 P.2d 784 (1979). Sometimes a case is decided only on fourth amendment grounds, or on the basis of fourth amendment analysis. State v. Bro......
  • State v. Davis
    • United States
    • Supreme Court of Oregon
    • June 29, 1983
    ...389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Peller, 287 Or. 255, 598 P.2d 684 (1979); State v. Matsen/Wilson, 287 Or. 581, 601 P.2d 784 (1979). The state has the burden of showing that circumstances existing at the time of entry invoke one of these exceptions. Stat......
  • State v. Atkinson
    • United States
    • Supreme Court of Oregon
    • September 25, 1984
    ...that recur with regularity in judicial decisions. See State v. Hansen, 295 Or. 78, 664 P.2d 1095 (1983) and State v. Matsen/Wilson, 287 Or. 581, 601 P.2d 784 (1979), describing "freezing" or "securing" a premises. Repeated use of these terms without explanation may make it appear as though ......
  • Request a trial to view additional results
38 cases
  • State v. Sullivan, A150021 (Control); A150023
    • United States
    • Court of Appeals of Oregon
    • August 20, 2014
    ...the destruction of evidence, warrantless entry is permissible only when the escape or destruction “was imminent.” State v. Matsen/Wilson, 287 Or. 581, 587, 601 P.2d 784 (1979) (emphasis added). [333 P.3d 1213] In some cases, it is easy to identify the circumstance that creates the demand fo......
  • State v. Caraher
    • United States
    • Supreme Court of Oregon
    • November 2, 1982
    ...State v. Quinn, 290 Or. 383, 390, 623 P.2d 630 (1981); State v. Carlile, 290 Or. 161, 163, 619 P.2d 1280 (1980); State v. Matsen/Wilson, 287 Or. 581, 601 P.2d 784 (1979). Sometimes a case is decided only on fourth amendment grounds, or on the basis of fourth amendment analysis. State v. Bro......
  • State v. Davis
    • United States
    • Supreme Court of Oregon
    • June 29, 1983
    ...389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Peller, 287 Or. 255, 598 P.2d 684 (1979); State v. Matsen/Wilson, 287 Or. 581, 601 P.2d 784 (1979). The state has the burden of showing that circumstances existing at the time of entry invoke one of these exceptions. Stat......
  • State v. Atkinson
    • United States
    • Supreme Court of Oregon
    • September 25, 1984
    ...that recur with regularity in judicial decisions. See State v. Hansen, 295 Or. 78, 664 P.2d 1095 (1983) and State v. Matsen/Wilson, 287 Or. 581, 601 P.2d 784 (1979), describing "freezing" or "securing" a premises. Repeated use of these terms without explanation may make it appear as though ......
  • Request a trial to view additional results

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