State v. Paulson

JurisdictionOregon
PartiesSTATE of Oregon, Petitioner on Review, v. Kelli Laree PAULSON, Respondent on Review. STATE of Oregon, Petitioner on Review, v. Scott Ray PAULSON, Respondent on Review. CC 88-3113; CA A61225 (Control) CA A61226; SC S37568.
Citation833 P.2d 1278,313 Or. 346
Docket NumberA-C-3,88-3113B-C-3
CourtOregon Supreme Court
Decision Date29 September 1992

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Peter Gartlan, Deputy Public Defender, Salem, argued the cause for respondents on review. With him on the response was Sally L. Avera, Public Defender, Salem.

GILLETTE, Justice.

In this criminal case, one of the defendants called 9-1-1 for emergency assistance at the defendants' apartment. Police officers arrived with other emergency personnel in response to the call. A police officer entered with the emergency personnel, saw evidence of a crime in plain view, and obtained a search warrant based on his observations and on statements made by defendants in their apartment. A trial court suppressed all evidence obtained pursuant to the warrant. A divided Court of Appeals affirmed, holding that the police had no statutory authority to enter the apartment in response to a 9-1-1 call and that, because the police had no such authority, any evidence obtained as a result of their entry must be suppressed. State v. Paulson, 103 Or.App. 23, 795 P.2d 611 (1990). We reverse.

Defendants Scott Paulson (Scott) and Kelli Paulson (Kelli), husband and wife, lived in an apartment in Medford. On October 3, 1988, Kelli called 9-1-1 and reported that Scott was having medical problems, including periods when he stopped breathing. Two paramedics were dispatched with the call "man down, possibly not breathing." The paramedics arrived at defendants' apartment complex, where they met a Medford police officer who already had arrived and was attempting to locate defendants' apartment. It appears from the evidence that the Medford police routinely dispatch officers to 9-1-1 calls involving life-threatening situations. The record shows that officers have special training in lifesaving techniques and normally are able to reach the scene more quickly than an ambulance, because the officers already are on the road.

Precisely what happened next is unclear. When the two paramedics and the officer arrived at defendants' apartment, Kelli opened the door in response to their knock. A paramedic testified that the officer probably was the one who knocked. Kelli invited at least the paramedics to come in, and directed them to an upstairs loft where Scott was lying in bed. Kelli testified that, when she opened the door, she saw only the paramedics and did not notice the officer until everyone was in the loft. However, on direct examination, Kelli also testified that the officer "followed [the paramedics] through [the door] after. They were on the run to go upstairs. I was directing them to Scott upstairs, and the one officer came after." A second officer later walked into defendants' apartment and joined defendants, the paramedics, and the first officer in the loft.

The paramedics and the officer found Scott lying in bed, flushed and agitated, experiencing high blood pressure and a rapid pulse. At some point, Scott objected to the presence of both the paramedics and the police and argued that he did not require assistance. As treatment on Scott began, Kelli, overheard by the officers, told the paramedics that Scott had "snorted and shot up" at least one gram of cocaine over the last few hours. Scott was able to confirm this fact to the paramedics. The paramedics noticed a rolled-up dollar bill and white powder, which appeared to be cocaine, on a dresser next to the bed. They pointed out these items to the officers, but nothing was seized at the time.

Scott was transported to a hospital, where he told one of the officers that he had ingested cocaine during the last three hours. The officer asked Kelli for consent to a search of defendants' apartment. Kelli refused. The officer obtained a search warrant by telephone, ORS 133.545(5) and 133.555(3), based on the officer's oral affidavit reciting Kelli's and Scott's statements in the apartment, the officer's observation of the rolled-up dollar bill and the white powder, and Scott's admissions at the hospital. In executing the search warrant, the police seized the dollar bill, cocaine, and cocaine paraphernalia.

The state charged defendants with possession of a controlled substance, ORS 475.992(4), and frequenting a place where controlled substances are used, ORS 167.222. Defendants moved to suppress the evidence seized pursuant to the search warrant. They argued that the search warrant was based on information that, under the rule of State v. Bridewell, 306 Or. 231, 759 P.2d 1054 (1988), was obtained impermissibly. The trial court granted defendant's motion on the basis of State v. Watson, 95 Or.App. 134, 137-38, 769 P.2d 201 (1989). In that case, the Court of Appeals held that, "when police act in a capacity other than criminal law enforcement, entry into protected areas may only be made pursuant to 'statutory or other authority from a politically accountable body.' " (Citing State v. Bridewell, supra, 306 Or. at 239, 759 P.2d 1054).

The state appealed. The Court of Appeals, sitting in banc, affirmed 6-4. The majority opinion agreed with the trial court's reliance on State v. Watson, supra, and State v. Bridewell, supra, stating that "[t]he state does not point to any 'statutory or other authority from a politically accountable body' to support entry by the police officers. Even if their entry could be characterized as necessary to render assistance to [Scott], incriminating evidence observed cannot be used for criminal law enforcement purposes." State v. Paulson, supra, 103 Or.App. at 27, 795 P.2d 611. The court held that "[t]he inadmissible evidence, including the statements made by both defendants at their residence, is not available to support an application for a search warrant." Id. With the only information validly obtained being Scott's admission at the hospital, the court ruled that the search warrant lacked probable cause. Id.

The dissent distinguished State v. Bridewell, supra. In the dissent's view, Kelli consented to the entry of the officer who accompanied the paramedics, and the officers who were in the apartment complied strictly with the scope of that consent. State v. Paulson, supra, 103 Or.App. at 28, 795 P.2d 611.

The state asserts that the Court of Appeals erred in relying on State v. Bridewell, supra. The state argues that Kelli's "consent to the officers' entry waived the Paulsons' constitutionally protected privacy and property interests with respect to that entry." Defendants respond that (1) the trial court implicitly found that Kelli did not consent to the police entry (a finding, defendants assert, that is accurate based on the facts); and (2) the Court of Appeals majority correctly held that State v. Bridewell, supra, controls this case.

The last of those contentions is answered easily. The suggestion that this case is governed by State v. Bridewell, supra, is in error. Bridewell was not a case in which police entry into a home allegedly occurred with the consent of the occupant. In Bridewell, the authority of the police to act as they did--if any existed--had to be derived from a source other than consent. Bridewell did not limit the authority of the police to act pursuant to the voluntary consent of a citizen. We turn next to a brief review of the law of consent searches.

The parties have proceeded in this case on the basis that, when the police entered defendants' apartment, defendants had a privacy interest in their home--"the quintessential domain protected by the constitutional guarantee against warrantless searches," State v. Louis, 296 Or. 57, 60, 672 P.2d 708 (1983) 1--and that such an entry was a search 2--but that only begins the inquiry.

Normally, in order for a search to be constitutionally permissible, the police must have a search warrant. State v. Campbell, 306 Or. 157, 163, 759 P.2d 1040 (1988). In the present case, the police did not have a search warrant when they entered defendants' apartment. The evidence, however, is not to be suppressed automatically on that ground. Evidence is not suppressed unless the search was "unreasonable" under Article I, section 9, of the Oregon Constitution.

A warrantless search by the police is "reasonable" under Article I, section 9, when the search falls into one or another of the recognized exceptions to the warrant requirement. State v. Miller, 300 Or. 203, 225, 709 P.2d 225 (1985), cert. den. 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986). One such exception is consent. "When there is consent to the search, no warrant is necessary." State v. Pogue, 243 Or. 163, 164, 412 P.2d 28 (1966). Accord State v. Carsey, 295 Or. 32, 38, 664 P.2d 1085 (1983); State v. Newton, 291...

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  • State v. Rodriguez
    • United States
    • Oregon Supreme Court
    • July 1, 1993
    ...is at issue, the state must prove by a preponderance of the evidence that the consent was voluntary. See, e.g., State v. Paulson, 313 Or. 346, 351-52, 833 P.2d 1278 (1992) ("Under the consent exception to the warrant requirement, the state must prove by a preponderance of the evidence that ......
  • State v. Guggenmos
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    • Oregon Supreme Court
    • May 5, 2011
    ... ... Louis, 296 Or. 57, 60, 672 P.2d 708 (1983). Under Article I, section 9, of the Oregon Constitution, a warrantless search of one's private living quarters is per se unreasonable and unlawful unless the search fits within a recognized exception to the warrant requirement. State v. Paulson, 313 Or. 346, 351, 833 P.2d 1278 (1992). Relying on a series of cases decided by this court, the state argues that the search herea protective sweep of the housewas conducted to protect officer safety. Those cases [350 Or. 251] permit a police officer, during a lawful police-citizen encounter, to ... ...
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  • State v. Smith
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    ... ...         State v. Nagel, 320 Or. 24, 31, 880 P.2d 451 (1994) (quoting State v. Paulson, 313 Or. 346, 351, 833 P.2d 1278 (1992) (citations omitted)). The analysis involves no examination of relative levels of intrusiveness, no balancing of governmental law enforcement and individual privacy interests. If a given action constitutes a search for evidence within the meaning of Article ... ...
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3 books & journal articles
  • § 3.3 Lawful Warrantless Searches and Seizures
    • United States
    • Criminal Law in Oregon (OSBar) Chapter 3 Search and Seizure—without Warrants
    • Invalid date
    ..."reasonable" because it comes within a judicially recognized exception to the warrant requirement. State v. Paulson, 313 Or 346, 351, 833 P2d 1278 (1992); Katz v. United States, 389 US 347, 357, 88 S Ct 507, 19 L Ed 2d 576 (1967). The courts have identified a wide array of judicially recogn......
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    • Criminal Law in Oregon (OSBar) Chapter 5 Remedies for Unlawful Search and Seizure
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    ...doctrine in Article I, section 9, cases. State v. Herrin, 323 Or 188, 195, 915 P2d 953 (1996) (citing State v. Paulson, 313 Or 346, 353, 833 P2d 1278 (1992)); see also State v. DeJong, 368 Or 640, 659, 497 P3d 710 (2021) (holding that the record was insufficient to support a finding that th......
  • § 28.9 Decision by the Court of Appeals
    • United States
    • Criminal Law in Oregon (OSBar) Chapter 28 Appeals
    • Invalid date
    ...clear, the appellate court may remand the case for more specific findings and conclusions. See, e.g., State v. Paulson, 313 Or 346, 352, 833 P2d 1278 (1992) (when it is unclear whether the trial court reached a legal theory advanced by the appellant, remand to the trial court is appropriate......

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