State v. Mitchell

• Decision Date: 03 November 1971
• Docket Number: C--59112,C--59109,C--59111,C--59110,C--59113
• Citation: 93 Adv.Sh. 89,487 P.2d 1156,6 Or.App. 378
• Parties: STATE of Oregon, Respondent, v. Michael Ray MITCHELL (), Richard Alan Fischer (), Terrence Jones (), Thomas Alan Gravon (), and Virginia Mary Linnman (), Appellants (five cases).
• Court: Oregon Court of Appeals

Page 1156

487 P.2d 1156

6 Or.App. 378

STATE of Oregon, Respondent, v. Michael Ray MITCHELL (C--59109), Richard Alan Fischer (C--59110), Terrence Jones (C--59111), Thomas Alan Gravon (C--59112), and Virginia Mary Linnman (C--59113), Appellants (five cases).

Court of Appeals of Oregon, Department 1.

Argued and Submitted May 19, 1971.

Decided Aug. 12, 1971.

Rehearing Denied Sept. 17, 1971.

Review Denied Nov. 3, 1971.

N. Robert Stoll, Portland, argued the cause and filed the briefs for appellants.

W. Michael Gillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

SCHWAB, Chief Judge.

The defendants in this consolidated proceeding appeal from convictions of illegal possession of narcotics in violation of ORS 474.020. The main questions presented by these appeals are (1) does Oregon recognize the 'exigent circumstances' exception to the requirements of its 'knock and announce' statute, ORS 133.290, and (2) did such 'exigent circumstances' exist in these cases? For the reasons which follow our answer to both of the questions is, 'yes.'

The defendant Gravon also assigns as error the court's refusal to allow him to call the defendant Jones as a witness before the jury. Jones had already testified in a hearing out of the presence of the jury that he intended claiming his Fifth Amendment privilege if he were called as a witness.

The defendants were all arrested, indicted and convicted on the basis of evidence seized from a house in Portland. On April 30, 1970, four policemen arrived at the house armed with a valid search warrant. They knew from the affidavit in support of the warrant that an individual at those premises was engaged in sales of marihuana. Upon arrival the officers observed through a glass pane in the front door actions on the part of certain of defendants with a scale and some tin foil objects which, coupled with their previous information, justified their conclusion that these defendants had, immediately at hand, narcotics which were the subject of the search, and that these narcotics were in small quantities.

The parties have stipulated that the police then

'* * * knocked and opened the door all in one movement. They did not knock and wait for any period of time between the time when they knocked and opened * * * the officers identified themselves * * * after the door was opened.'

The police then seized the narcotics and narcotics paraphernalia, but only after attempts were made by various defendants to hide this contraband after police entry.

We turn now to the first question. Do the courts of Oregon recognize the 'exigent circumstances' exception to the 'knock and announce' statute?

This court has on at least two occasions recognized such an exception--in State v. Steffes, 2 Or.App. 163, 465 P.2d 905, Sup.Ct. review denied (1970), and by way of dictum in State v. Spicer, 90 Or.Adv.Sh. 1911, 473 [6 Or.App. 381] P.2d 147 (1970). The defendants argue that these holdings are inconsistent with the Oregon Supreme Court's ruling in State v. Cortman, 251 Or. 566, 446 P.2d 681 (1968), cert. denied 394 U.S. 951, 89 S.Ct. 1294, 22 L.Ed.2d 487 (1968), and State v. Hollman, 251 Or. 416, 446 P.2d 117 (1968).

ORS 141.110 provides that in execution or service of a search warrant the officer has the same power of forcible entry that he has in the execution or service of a warrant of errest. ¹ ORS 133.290 provides:

'The officer may break open any outer or inner door or window of a dwelling house, or otherwise, to execute the warrant if, after notice of his authority and purpose, he is refused admittance.'

This language is typical of similar statutes in other states which also, as is the case in Oregon, do not ordinarily contain any statutory exceptions. The exceptions noted hereafter have been judicially carved out of the body of such statutes. The requirement of announcement and refusal stems from the common law. Regardless of whether announcement is constitutionally required in some cases it is clear that it can be dispensed with in some cases without violating constitutional requirements. Ker v. California, 374 U.S. 23, 39--41, 83 S.Ct. 1623, 10 L.Ed. 726 (1963). In Ker, the Supreme Court of the United States affirmed the California court's use of narcotics evidence where officers entered defendant's apartment furtively. The police purpose was to avoid the disposal of the evidence and to prevent escape from arrest.

The Oregon Supreme Court has not squarely ruled on the 'exigent circumstances' exception. In State v. Cortman, supra, the officers made the required announcement and the defendant's contention was that after making the announcement they did not wait long enough to allow him to open the door. The court there said:

'Where, as here, the court found that the officers made the required announcement, we believe that the purposes of the statute were served and that it would be unrealistic to require the officers to delay their entry for a fixed period of time after making their presence and purpose known. The reasonableness of the officers' delay in a given set of circumstances will depend upon a number of factors, including the likelihood of destruction of evidence, danger to the officers, or danger to others. See People v. Maddox, 46 Cal.2d 301, 306, 294 P.2d 6, cert. denied 352 U.S. 858, 77 S.Ct. 81, 1 L.Ed.2d 65 (1956). We hold that the failure of the officers to delay their entry until after the defendant could dispose of the evidence did not constitute a ground for excluding it.' 251 Or. at 570--571, 446 P.2d at 683.

In State v. Hollman, supra, the court refused to rule on the question because the assignment of error had not been properly preserved in the trial court. There is nothing in those opinions inconsistent with our holding in State v. Steffes, supra, in which, after a discussion of People v. Maddox, 46 Cal.2d 301, 294 P.2d 6, cert. denied, 352 U.S. 858, 77 S.Ct. 81, 1 L.Ed.2d 65 (1956), and Ker v. California, supra, we held:

'* * * Thus they (the police) had reasonable grounds to believe that tarrying in the hall outside the defendant's door might expose them to danger. * * * There were exigent circumstances in this case which justified the officers in entering Steffes' room without first announcing their purpose.' 2 Or.App. at 168--169, 465 P.2d at 907.

The requirement of announcement and refusal prior to forcible entry exists primarily for the purposes of avoiding unnecessary violence and destruction of evidence--and not solely for the protection of privacy. Privacy is usually otherwise adequately protected under the Fourth Amendment to the United States Constitution and Oregon Constitution, Art. I, § 9. See Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California, 112 U of Penn Law Rev 499 (1964). As stated in People v. Rosales, 68 Cal.2d 299, 66 Cal.Rptr. 1, 437 P.2d 489 (1968):

'The statute reflects more than concern for the rights of those accused on crime. If serves to preclude violent resistance to unexplained entries and to protect the security of innocent persons who may also be present on premises where an arrest is made * * *.' 66 Cal.Rptr. at 4--5, 437 P.2d at 492--493.

Therefore, where the existence of probable cause to search or arrest subjects privacy to invasion, the requirement furnishes a civility, particularly in an urban society, to lessen the likelihood of injury or conflict between the police and the citizen. As a civility, it is flexible in its application to the varying fact situations. It has even been suggested that, it is not of a degree of importance which requires the application of the exclusionary rule, see Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Cal.L.Rev. 475, 502 (1961), although the cases appear to be contra. The requirement being of statutory origin, Oregon might well be free to follow the commentator's suggestion; however, we need not here decide this question.

The notice and refusal precondition for forcible entry has been adapted by the courts to the exigencies of this age of plentiful firearms and indoor plumbing. ² Landynski, Search and Seizure and the Supreme Court 166 (Johns Hopkins Press, Baltimore 1966). Traditionally, forcible entry has been allowed where 'exigent circumstances' exist to justify the exception. Particularly in narcotics and gambling cases, recent cases have allowed exception to the rule as a practical necessity. Therefore, where notice would imperil the officer, facilitate escape or allow the destruction of evidence, the requirement is dispensed with.

Ker v. California, supra, which decided that the states are free to interpret their own statutory rules of forcible entry so long as they are constitutionally reasonable, quoted extensively with approval from People v. Maddox, supra, in which officers made a narcotics arrest on probable cause without a warrant. They knocked on defendant's door. The defendant answered, 'Wait a minute.' The officers heard retreating footsteps, they kicked the door open, entered and only then announced themselves. The Supreme Court of California recognized that exigencies may excuse compliance with the statute, upheld the execution of the search and affirmed the conviction. Its reasoning, approved for state purposes in Ker, is applicable here:

'The demand and explanation requirements of section 844 present a more difficult problem. The officers's compliance with them will delay his entry, and cases might arise in which the delay would permit destruction or secretion of evidence so that what the search turns up would depend on the officer's compliance with the section. In other cases, however, the evidence may not be readily disposed of, and in still others it may be impossible to determine whether or not the evidence would still have been available had there...