State v. Paulson, A-C-3

• Court: Oregon Supreme Court
• Writing for the Court: GILLETTE
• Citation: 833 P.2d 1278,313 Or. 346
• Parties: STATE 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.
• Decision Date: 29 September 1992
• Docket Number: A-C-3,88-3113B-C-3

Page 1278

833 P.2d 1278 313 Or. 346 STATE 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 88-3113A-C-3, 88-3113B-C-3; CA A61225 (Control) CA
A61226; SC S37568. Supreme Court of Oregon,
In Banc. Argued and Submitted March 6, 1991.
Decided July 2, 1992.
Reconsideration Denied Sept. 29, 1992.

Page 1279

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.

[313 Or. 348] 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 [313 Or. 349] 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

Page 1280

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 [313 Or. 350] 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...