State v. Olson

• Decision Date: 30 May 1978
• Citation: 579 P.2d 277,34 Or.App. 511
• Parties: STATE of Oregon, Appellant, v. Kent Gallant OLSON, Respondent.
• Court: Oregon Court of Appeals

Page 277

579 P.2d 277

34 Or.App. 511

STATE of Oregon, Appellant, v. Kent Gallant OLSON, Respondent.

Court of Appeals of Oregon,In Banc.

Argued and Submitted Jan. 17, 1978.

Resubmitted In Banc April 12, 1978.

Decided May 30, 1978.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.

William N. Mehlhaf, Portland, argued the cause and filed the brief for respondent. SCHWAB, Chief Judge.

This is an appeal by the state from an order suppressing evidence.

The Fourth Amendment to the United States Constitution has been interpreted as requiring police officers, before they enter a private residence, to "knock and announce." Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Valentine/Darroch, 264 Or. 54, 504 P.2d 84 (1972), cert. den. 412 U.S. 948, 93 S.Ct. 3001, 37 L.Ed.2d 1000 (1973); State v. Gassner, 6 Or.App. 452, 488 P.2d 822 (1971). The question in this case is what is the minimum federal constitutionally required "announcement."

Three police officers went to defendant's residence between 10 and 11 p. m. The trial court concluded that the officers had probable cause to arrest defendant for burglary; there is evidence to support this conclusion. In addition, we note that the same information gave the officers probable cause to search defendant's residence for property stolen in a residential burglary reported a couple of hours earlier. The officers thus had the right to enter defendant's residence upon either the basis of probable cause to arrest or probable cause to search. The problem involves their method of entry.

The officers knocked on defendant's front door and announced their identity, "This is the sheriff's office." Receiving no response, they forced open the door and entered defendant's residence. The officers never stated their purpose or reason for desiring entry before they in fact entered.

Courts have frequently stated that the constitutionally required pre-entry announcement must include the officer's "presence and purpose,:" e. g., State v. Valentine/Darroch, supra, 264 Or. at 60, 66, 504 P.2d 84. See also, State v. Newman, 12 Or.App. 266, 270, 506 P.2d 523 (1973). But we find no cases, decided on constitutional grounds, that really test that formulation with facts like we now have announced identity and presence, but no announced purpose. ¹

In the absence of controlling authority, we conclude that the question of the extent of the minimum announcement constitutionally required should be answered by looking to the purposes to be served by requiring any announcement. The Oregon Supreme Court has told us:

" * * * (I)t appears that the announcement requirement has been given federal constitutional status (1) to protect persons who might be injured by violent resistance to unannounced entries by law enforcement officers, and (2) to protect the householder's right to privacy * * *." State v. Valentine/Darroch, supra, 264 Or. at 60, 504 P.2d at 87.

It might reasonably be contended that the more detail officers shout through a closed door before forcing entry, the greater will be the protection against violence and the greater will be the protection of privacy. And an individual officer's assessment of how to do his job safely and effectively might in a given situation produce a more detailed pre-entry announcement than occurred in this case. But the question is not what might be desirable or undesirable in various situations; the question is what is the constitutionally required minimum announcement in all situations. We must draw a line.

We draw that line by holding the present announcement, "This is the sheriff's office," constitutionally adequate. Viewed in light of the reasons for the rule, we fail to see how requiring more in all situations will significantly minimize the likelihood of violence or significantly add to the protection of privacy. ²

Reversed and remanded.

JOSEPH, Judge, dissenting.

The majority has chosen to summarize the facts in a manner which suggests either that they do not matter much or that the police conduct was outrageous but acceptable. I begin therefore with my own, and of course typically balanced, statement of the facts in some detail.

At approximately 8 p. m., a police officer went to investigate a residential burglary. He was informed by the victim that among the items taken were a stereo set, firecrackers, a metal box containing personal papers, a .22 caliber pistol and, possibly some ammunition for the pistol. He also learned that a certain teenage boy had been seen earlier in the evening near the residence where the crime occurred. The officer found the boy and questioned him. Although he denied knowledge of the burglary, the boy did say that he and defendant had been around the residence looking for defendant's dog. Firecrackers identified as those taken in the burglary were found in the boy's possession. He explained that he had received the firecrackers from defendant, whose address he gave the officer.

The officer, accompanied by the boy and two other police officers, went to defendant's house, located in a remote area. They had no arrest or search warrant. When they arrived, between 10 and 11 p. m., there were no lights on in the house. The boy identified the car parked outside as defendant's. One officer went to the rear of the house; the other two went to the front door. One officer knocked on the front door and announced, "This is the sheriff's office." He and the other officer then heard a rustling sound from inside the house, "like someone moving about." The door was not opened.

The officer who had knocked on the front door then walked to the rear of the house and shined his flashlight into a window. As he peered in, he noticed a stereo "on the kitchen table." He returned to the front door and again knocked and announced his identity. Receiving no response, he forced open the door and he and another officer entered the house (without having drawn their weapons). At no time did they announce their purpose in requesting entry. They testified that they were in fear for their safety because of the pistol which they believed was in defendant's possession.

When the officers entered the house, defendant was in bed with his girlfriend. The police informed him of his Miranda rights and arrested him. They then conducted an extensive search of the small house and seized various items, including a stereo (from the bathroom) and other items believed to have been taken in the burglary. When asked where the pistol was, defendant replied that it was under the mattress. It was also seized. At no time did defendant consent to the officers' entry or to their search of the house.

Either while still at the house or while on the way to the police station, defendant confessed to his participation in the burglary. Within an hour of his arrival at the station he was asked to and did make a written confession. A short time later the victim of the burglary, who was concerned about the metal box containing his personal papers, came to the station. Upon questioning either by an officer or by the victim at the direction of the officer, the boy who had also been arrested was unable to recall where the box had been abandoned. Defendant volunteered its location. The victim went there and recovered the box.

The trial court suppressed all the items seized at defendant's house, his oral and written confessions and the metal box, on the bases that the entry into defendant's house was illegal because the officers did not announce their purpose and because they should have obtained a warrant, and that the evidence was the fruit of the illegal entry and arrest. ¹

It is now well established under the Oregon statutes ² and the Fourth Amendment that, absent exigent circumstances, police must knock, announce their identity and state their purpose before entering a private dwelling to search or arrest. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Valentine/Darroch, 264 Or. 54, 504 P.2d 84 (1972), cert. den. 412 U.S. 948, 93 S.Ct. 3001, 37 L.Ed.2d 1000 (1973). The majority cites those cases but ignores the "purpose" requirement.

The state argued that the officers were justified in failing to announce their purpose because to do so would have placed them in increased peril. In circumstances where it reasonably appears to police officers that the risks of unannounced entry are outweighed by the risks of making an announcement, an exception to the knock and announce requirements has been recognized. State v. Steffes, 2 Or.App. 163, 465 P.2d 905, rev. den. (1970); State v. Vance, 7 Or.App. 566, 492 P.2d 493 (1972); State v. Larkins, 8 Or.App. 162, 493 P.2d 172 (1972). To conclude in this case that the police could reasonably have believed that a statement of purpose would have increased their danger would vitiate those prior cases, which reflect efforts to accommodate the rights of criminal suspects with the safety of police officers. Here the officers knocked and announced their identity, milled about outside the house, shined a light into a window, peered inside and then knocked and announced their identity a second time before forcing the door open. It surpasses belief that a simple statement of purpose would have increased their peril. The majority has announced a rule that says there is a constitutional preference for entry without announcement of purpose and that the police shall determine what to announce. That is a very curious doctrine.

The state argued additionally that defendant knew why the police were there and that a statement of purpose would have been useless. That is tantamount to saying that whenever the police have probable cause to believe the occupant of a dwelling has recently recently committed a crime they need only state their identity and the suspect will know why they are...