State v. Parras

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: BUTTLER
• Citation: State v. Parras, 602 P.2d 1125, 43 Or.App. 373 (Or. App. 1979)
• Decision Date: 26 November 1979
• Docket Number: No. CR,CR
• Parties: STATE of Oregon, Respondent, v. Hector PARRAS, Appellant. 78-194; CA 13227.

Page 1125

602 P.2d 1125

43 Or.App. 373

STATE of Oregon, Respondent, v. Hector PARRAS, Appellant.

No. CR 78-194; CA 13227.

Court of Appeals of Oregon.

Argued and Submitted Sept. 24, 1979.

Decided Nov. 26, 1979.

Marianne Bottini, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Gary S. Thompson, Dist. Atty., Prineville, argued the cause and filed the brief for respondent.

Before BUTTLER, P. J., and GILLETTE and ROBERTS, JJ.

BUTTLER, Presiding Judge.

Defendant was convicted of rape in the first degree. He appeals, contending that the trial court erred in refusing to suppress certain incriminating evidence seized as a result of defendant's warrantless arrest in his apartment, there having been no exigent circumstances to justify police entry.

On Sunday, March 19, 1978, at 6:10 a. m. a county undersheriff received a report that a rape had occurred during the preceding two hours. The officer arrived at the scene at 6:33 and spoke with the victim, who described the incident, identified the defendant as the rapist and stated that he had not left his apartment. There was no sign of activity in defendant's apartment, which was visible from the victim's apartment; defendant's car, which had been identified, remained parked in front. On closer inspection, the officer found that the drapes on all the windows were almost entirely closed and he could neither see anything inside nor detect any sounds of activity within.

At 6:45, the arresting officer knocked ¹ on defendant's door and heard no response. A second officer who arrived at the scene was stationed at the rear of the building and saw and heard nothing; he joined the first officer in entering the apartment with the manager's pass key. The arresting officer testified that he entered to (1) verify if anybody was there, (2) check out complainant's story, (3) make contact with the suspect, (4) ascertain the suspect's welfare, and (5) continue the investigation. That officer further stated that he intended to arrest the suspect if the complainant's story checked out, which he anticipated it would. Defendant was found asleep in bed, was arrested and booked. Subsequently, defendant consented to a search of his apartment, and the questioned evidence was seized.

It is conceded that the police had probable cause to arrest defendant and that the sole issue is whether there were exigent circumstances which obviated the necessity for a warrant. We start with the proposition that the burden is upon the state to show that the entry into defendant's apartment "fell within the class of permissible exceptions to the requirement of a warrant." State v. Olson, 287 Or. 157, 165, 598 P.2d 670, 674 (1979). We hold that the state has failed to meet that burden.

In State v. Girard, 276 Or. 511, 514, n. 2, 555 P.2d 445, 447, n. 2 (1976), the Supreme Court accepted the following definition of exigent circumstances:

" ' * * * In this context, "exigent circumstances" means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a subject or destruction of evidence.' " (Quoting from People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, 1341 (1976).)

The state's case rests on mere possibilities as to what the defendant might have done if he were aware that the crime had been reported and that the police were on the scene. The arresting officer testified that he believed that the defendant Could be destroying evidence, preparing an escape through a window, or planning to resist arrest, perhaps with the knife believed to be in his possession. The evidence, however, is that the police had no reason to believe that defendant was aware of their presence or that the crime had been reported. The officers could not see into the apartment and could not hear any activity within. They had no basis for believing that defendant was Likely to be destroying, or preparing to destroy, evidence, or that he was preparing to escape.

In State v. Peller, 37 Or.App. 467, 475, 587 P.2d 510, 514 (1978), this court, in upholding a warrantless entry into the defendant's home, said:

" * * * An officer is not required to stand around and wait for a defendant to choose which of several potential exits defendant may wish to use to 'make a break.' Exigent circumstances arise when the possibility of 'making a break' exists. * * * "

On review, however, the Supreme Court reversed (State v. Peller, 287 Or. 255, 598 P.2d 684 ...