State v. Peller

Decision Date07 August 1979
PartiesSTATE of Oregon, Respondent, v. Mark George Emil PELLER, Petitioner. CA 11128; SC 26008.
CourtOregon Supreme Court

David W. Hittle, Salem, argued the cause for petitioner. With him on the briefs were Gary L. Gardner, and Dye & Olson, Salem.

Catherine Allan, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before DENECKE, C. J., and HOLMAN, TONGUE, HOWELL, LENT and LINDE, JJ.

HOWELL, Justice.

This is a criminal case in which defendant was charged with possession of a stolen motor vehicle and criminal activity in drugs. The trial court entered an order suppressing certain evidence and statements obtained after a warrantless search of defendant's residence. The Court of Appeals reversed the trial court, 37 Or.App. 467, 587 P.2d 510 (1978), and defendant petitioned this court for review. We reverse the Court of Appeals and affirm the order of the trial court.

Except as noted, the following facts are undisputed. On December 8, 1977, Deputy Holmes of the Yamhill County Sheriff's office advised Deputy Elle of the same office that a certain black and orange Porsche had been observed in McMinnville and that the car's license belonged on a Pontiac rather than a Porsche. Holmes and Elle drove to a residence in McMinnville where they saw the Porsche parked in the driveway. They went to the door, knocked, and defendant answered. Elle advised defendant of the purpose of the call and asked who owned the Porsche. Defendant responded that it belonged to his roommate, who was at work and would be home later that evening.

Elle asked defendant where his roommate could be located. Defendant said the roommate was at his girl friend's house near the high school and that the girl friend's name was Johnson. Defendant refused to allow Elle to use his telephone. Elle left a business card and told defendant to have the roommate call when he returned.

Some time during the initial encounter with defendant, Holmes advised Elle that another deputy had stopped the Porsche some time earlier, that defendant had been driving, and that defendant had lied about something. When they left defendant's residence, Elle decided to try to locate the roommate. A dispatcher, when asked to check the city directory to try to locate anyone by the name of Johnson in the area of the high school, was unable to do so. The officers then returned to defendant's residence approximately 15 to 20 minutes after their first encounter with defendant.

The officers knocked at defendant's door, identified themselves, and called defendant's name. They stayed at the door between a minute and two minutes. Upon receiving no response, they proceeded to leave. As they were leaving, Elle checked the front license plate on the Porsche and discovered that it was different than the rear plate. A check revealed that the front plate belonged on a 1974 Plymouth. Elle then opened the driver's door and checked the vehicle identification number.

Elle and Holmes then returned to the patrol car and drove away while Elle asked the dispatcher to check the identification number. The dispatcher reported that a vehicle with that number had been reported as stolen earlier in the year in Corvallis. The officers returned to the residence less than a minute after the second visit.

Elle noticed that some changes had occurred since they left. On the first visit, several cats were in the garage; on the second they were outside; and on the third they were back in the garage and the garage was locked. Elle also noticed that the lighting inside the residence had changed.

Believing defendant was inside, Elle knocked on the door, identified himself, and told defendant he wished to talk with him. Elle received no reply, so he asked Holmes to have the dispatcher call defendant. While Holmes was gone, Elle heard a rustling noise inside the house. He tried the door, found it unlocked, and opened it enough to see into the living room. He called loudly again and received no response, but thought he heard some more rustling noises from the rear of the house. He also observed a pipe and some stems of marijuana on a table.

Elle stepped inside the house and called again for defendant. He heard some noise in the rear and started in that direction. As he went past the table, he could clearly see the marijuana. He went on to an open bedroom and located defendant standing inside a clothes closet.

Elle advised defendant of his Miranda rights and obtained consent to search the residence from both defendant and his roommate, who had since returned. Defendant stipulated at the hearing that he was properly advised of his rights.

Defendant was charged with possession of a stolen motor vehicle and criminal activity in drugs. Prior to trial, defendant moved to suppress all evidence obtained from the search of the Porsche and all evidence and statements obtained as a result of the entry into the residence.

At the hearing on the motion to suppress, Elle recalled that there was one door to the residence and there were windows. When advised that the police report indicated that there were two doors, he stated that without reviewing the record, he was not sure. Elle also was not sure if the windows opened. After he observed the marijuana, Elle continued his investigation to find defendant and to search for additional evidence. Elle did not first apply for a search warrant because he believed that if he and Holmes left, there was a good chance that the car would disappear. He testified that, in his experience, it took between four and ten hours to get a warrant. Defendant, however, testified that Elle had told him it would take only two to four hours to get a warrant.

Elle testified that because of the time of day he probably would not have been able to make radio contact with the district attorney's office. According to Holmes, the city police and state police would have provided assistance upon request if they had available deputies.

On February 10, 1978, the trial court entered an amended order denying defendant's motion to suppress evidence obtained from the vehicle but granting the motion to suppress evidence and statements obtained as a consequence of opening the door and entering the residence. The state appealed from that part of the court's amended order suppressing the evidence and statements obtained as a result of the deputies opening the door and entering the residence. Defendant did not cross appeal.

The trial court specifically ruled,

"All evidence seized and statements made after the uninvited entry into the residence at 665 East 26th, McMinnville was unlawfully obtained As there were no exigent circumstances to justify the entry even though there was probable cause.

" * * * (D)efendant's motion, to the extent it applies to evidence and statements obtained subsequent to the entry into the residence, is granted." (Emphasis added.)

In reviewing the facts, we note initially that the burden is on the state to justify the warrantless search. ORS 133.693(4). We are bound by the trial court's determination of what actually happened, and our function is limited to determining whether or not the trial court correctly applied the constitutional principles. See State v. Warner, 284 Or. 147, 156-59, 585 P.2d 681 (1978). 1

The fourth amendment to the United States Constitution prohibits "unreasonable searches and seizures." The United States Supreme Court has interpreted this to mean that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable * * * subject to only a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). 2 In State v. Olson, 287 Or. 157, 598 P.2d 570 (1979), we held that the Fourth Amendment requirements pertaining to searches are also applicable when the police enter a private home for purposes of arresting the occupant. See also Coolidge v. New Hampshire, 403 U.S. 443, 473-84, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); People v. Ramey 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, cert. denied 429 U.S. 929, 97 S.Ct. 335, 50 L.Ed.2d 299 (1976). Cf., United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Contra, People v. Payton/Riddick, 45 N.Y.2d 300, 380 N.E.2d 224, 408 N.Y.S.2d 395, Prob. juris. noted, 439 U.S. 1044, 99 S.Ct. 718, 58 L.Ed.2d 703 (1978).

Although the police officers in the present case failed to secure either a search or an arrest warrant prior to entering the defendant's home, the state contends that the entry was lawful because (1) the police had probable cause to believe defendant had committed a felony and was within the residence, and (2) "exigent circumstances" excused the police from obtaining a warrant.

We shall assume, without deciding, that the police had probable cause to arrest the defendant and probable cause to believe he was within the residence. As we observed in State v. Olson, supra, however, such probable cause by itself "justifies only the issuance of a warrant." 287 Or. 165, 598 P.2d at 670. In order to justify a warrantless entry such as occurred in this case, the state must also show that "the exigencies of the situation made that course imperative." Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645, 18 L.Ed.2d 782 (1967), Quoting McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

Neither this court nor the United States Supreme Court has ever attempted to comprehensively define "exigent circumstances." In State v. Greene, 285 Or. 337, 342, 591 P.2d 1362 (1979), we noted that the theory underlying the concept is one of "practical necessity." In certain cases, the societal interest in a warrantless search or seizure is simply...

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31 cases
  • State v. Davis
    • United States
    • Oregon Supreme Court
    • 29 Junio 1983
    ...to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Peller, 287 Or. 255, 598 P.2d 684 (1979); State v. Matsen/Wilson, 287 Or. 581, 601 P.2d 784 (1979). The state has the burden of showing that circumstances existing at the......
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    ...Appeals' opinion was written prior to this court's decisions in State v. Olson, 287 Or. 157, 598 P.2d 670 (1979), and State v. Peller, 287 Or. 255, 598 P.2d 684 (1979), in which we held that an entry into a private home to arrest, without an arrest warrant, was justified only if the state s......
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    ...supports them. 5 Our function is to decide whether the trial court applied legal principles correctly to those facts. State v. Peller, 287 Or. 255, 260, 598 P.2d 684 (1979). In addition, if the trial court did not make findings on all pertinent historical facts and there is evidence from wh......
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