State v. Olson

• Decision Date: 31 July 1979
• Docket Number: No. C,C
• Citation: 287 Or. 157,598 P.2d 670
• Parties: STATE of Oregon, Respondent, v. Kent Gallant OLSON, Petitioner. 76-12-17439; DA 129621; CA 8276; SC 25891. . *
• Court: Oregon Supreme Court

Page 670

598 P.2d 670

287 Or. 157

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

No. C 76-12-17439; DA 129621; CA 8276; SC 25891.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted March 6, 1979.

Decided July 31, 1979.

William N. Mehlhaf, Portland, argued the cause and filed briefs for petitioner.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., Al J. Laue, Sol. Gen., and John W. Burgess, Asst. Atty. Gen., Salem.

HOLMAN, Justice.

Defendant was charged with burglary in the first degree. His motion to quash evidence of items of personal property seized in his home as well as evidence of certain statements and a confession he made at the time of his arrest was allowed. The state appealed and the Court of Appeals reversed the trial court's allowance of the motion. 34 Or.App. 511, 579 P.2d 277 (1978). This court granted review.

There is no dispute of consequence about the facts. The complaining witness and his family left their home and went out to dinner about 6 p. m. When they returned at 8 p. m. they found their house had been burglarized. They notified the police, who immediately responded. It was learned that a neighbor had seen a youth, who was known to the neighbor, and a man in front of complainant's home. The police contacted the youth, who said he and defendant had been looking for defendant's dog. The police, however, found the youth in possession of property taken from complainant's home which he said defendant had given to him. The youth took the police to where defendant lived. By this time it was 10 to 11 p. m. Defendant's car, which was parked in front of his home, was identified by the youth. The house was dark, and the police knocked loudly and announced, "This is the sheriff's office." They heard a noise from within the home but no one came to the door. After shining a light in various windows attempting to see inside, the officers returned to the door and knocked again, this time with a flash light, and again announced that they were from the sheriff's office. Receiving no response, the officers then opened the door, entered the house, and found defendant in bed with his girlfriend. The officers were aware at the time of their entry that a handgun and possibly some ammunition had been taken in the burglary. However, they did not draw their guns at the time of entry, and all officers testified that after the door was opened defendant said, "Come in." Loot from the burglary was found in the house and incriminating statements were made by defendant in spite of his having been given the Miranda warning. Shortly after being arrested he made a confession.

Two issues are raised by defendant's petition for review. The first is a claim that the police's failure, after knocking, to announce their purpose before forcefully entering defendant's residence was a violation of the Fourth Amendment of the United States Constitution ¹ and of Article I, section 9, of the Constitution of Oregon. ² The second contention is that absent exigent circumstances, the police's entry without a warrant of arrest was a violation of the same constitutional restrictions. The Court of Appeals held that knocking and announcing the identity of those seeking entrance was constitutionally sufficient despite the police's failure to state their purpose for seeking entry. The Court of Appeals declined to reach the question of the police's right to entry without an arrest warrant upon the basis that defendant's written motion to quash did not raise the issue. ³ The following was contained in the court's order quashing the evidence:

"The forcible nighttime entry by the police into the defendant's dwelling was made when there was ample time to obtain an arrest warrant; there being no exigent circumstances to justify the entry into the defendant's dwelling house and his subsequent arrest therein without the utilization of the warrant process."

There can be no doubt that the lack of an arrest warrant was a basis for the trial court's ruling. We know of no rule or statute which limits the trial judge to the reasons stated in the motion to quash, if, upon a hearing, it develops that the facts are such that the evidence should be quashed for reasons other than those specified in the motion, the judge chooses to act upon them, and there is no claim of lack of opportunity by the state to present evidence. The "knock and announce" rule presupposes that the police have a right to entry. In the absence of such a right, there is no occasion to consider whether the "knock and announce" rule has been complied with in a constitutionally proper manner. We therefore conclude that the first question to be answered is whether the police had a right to enter defendant's premises without a warrant for defendant's arrest.

Neither this court nor the United States Supreme Court has decided whether, absent exigent circumstances or hot pursuit, police officers who have probable cause to arrest a person may forcibly enter a person's home for that purpose in the absence of having secured a warrant. See State v. Girard, 276 Or. 511, 514, 555 P.2d 445 (1976); United States v. Santana, 427 U.S. 38, 45, 96 S.Ct. 2406, 47 L.Ed.2d 300 (1976), Mr. Justice Marshall dissenting; 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, 480-81, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). This question is now squarely presented to us.

ORS 133.310 provides:

"(1) A peace officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed:

"(a) A felony, * * *.

" * * *."

ORS 133.235(5) 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."

We are thus brought to a consideration of whether ORS 133.235(5) is constitutional if applied to permit police entry under the facts of this case.

The words of Article I, section 9, of the Oregon Constitution, and of the Fourth Amendment to the Constitution of the United States are substantially identical as they relate to the present problem:

" * * * right of the people to be secure in their persons, houses, * * * against unreasonable * * * searches and seizures * * * no Warrants shall issue, but upon probable cause * * * particularly describing the place to be searched, and the persons or things to be seized."

If probable cause to arrest is all a police officer needs to make constitutionally reasonable a forced entry into a person's house to arrest him, it is obvious that there will be little necessity for the officer ever to get a warrant; the requirement for entry without a warrant and for getting a warrant would be the same. Yet the constitutional provisions obviously must contemplate situations in which a warrant is required.

Many courts have paid lip service to the proposition that absent exigent circumstances it is necessary to have a warrant to forcibly enter a person's home for the purpose of his arrest. However, most courts successfully avoid the effects of such a rule by finding exigent circumstances. Without its having actually taken the step, the United States Supreme Court has come as close as possible to saying that a warrant is necessary where no exigent circumstances exist. Illustrative is the following language of the plurality opinion in Coolidge v. New Hampshire, supra 403 U.S. at 477-81, 91 S.Ct. at 2044-2045:

"It is clear, then, that the notion that the warrantless entry of a man's house in order to arrest him on probable cause is Per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house without warrant are Per se unreasonable in the absence of some one of a number of well defined 'exigent circumstances.' * * *.

" * * *.

"The fundamental objection, then, to the line of argument adopted by Mr. Justice White in his dissent in this case and in Chimel v. California, supra (395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)), is that it proves too much. If we were to agree with Mr. Justice White that the police may, whenever they have probable cause, make a warrantless entry for the purpose of making an arrest, and that seizures and searches of automobiles are likewise Per se reasonable given probable cause, then by the same logic Any search or seizure could be carried out without a warrant, and we would simply have read the Fourth Amendment out of the Constitution. Indeed, if Mr. Justice White is correct that it has generally been assumed that the Fourth Amendment is not violated by the warrantless entry of a man's house for purposes of arrest, it might be wise to re-examine the assumption. Such a re-examination 'would confront us with a grave constitutional question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment.' Jones v. United States, 357 U.S., at 499-500, 78 S.Ct. 1253.

"None of the cases cited by Mr. Justice WHITE disposes of this 'grave constitutional question.' 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. See also Davis v. Mississippi, 394 U.S. 721, 728, 89 S.Ct. 1394, ...