State v. Ritz

• Decision Date: 09 May 2018
• Docket Number: A152111
• Citation: 422 P.3d 397,291 Or.App. 660
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Randall Ray RITZ, Defendant-Appellant.
• Court: Oregon Court of Appeals

291 Or.App. 660

422 P.3d 397

STATE of Oregon, Plaintiff-Respondent,

v.Randall Ray RITZ, Defendant-Appellant.

A152111

Court of Appeals of Oregon.

Submitted on remand September 14, 2017.

May 9, 2018

Peter Gartlan, Chief Defender, and Jonah Morningstar, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. On the supplemental brief were Ernest G. Lannet, Chief Defender, and Anne Fujita Munsey, Deputy Public Defender.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General filed the answering brief for respondent. On the supplemental brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

GARRETT, J.

This case is before us on remand from the Supreme Court, which reversed our decision in State v. Ritz , 270 Or. App. 88, 347 P.3d 1052 (2015) ( Ritz I ), rev'd and rem'd , 361 Or. 781, 399 P.3d 421 (2017) ( Ritz II ). In Ritz I , we affirmed defendant’s conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and driving while suspended, ORS 811.182. Id. at 101, 347 P.3d 1052. In holding that the police did not violate defendant’s constitutional rights when they forcibly entered his home without a warrant, we concluded that the officers' reasonable belief that evidence of defendant’s blood alcohol content (BAC) would dissipate before the officers could obtain a warrant constituted an exigency justifying the entry. Id. at 98-99, 347 P.3d 1052. The Supreme Court reversed, holding that the dissipation of defendant’s BAC did not constitute an exigency under the circumstances. Ritz II , 361 Or. at 799, 399 P.3d 421. On remand, the issue is whether the warrantless entry was nevertheless justified by other exigent circumstances on which the trial court relied. For the reasons explained below, we conclude that it was not. Accordingly, we reverse and remand to the trial court for further proceedings.

When reviewing a denial of a motion to suppress, we are bound by the facts found by the trial court that are supported by evidence in the record. State v. Marshall , 254 Or. App. 419, 421, 295 P.3d 128 (2013). Whether those facts describe circumstances that justify a warrantless search is a question of law. State v. Dahl , 323 Or. 199, 205, 915 P.2d 979 (1996). In accordance with that standard, we recite the facts and pertinent procedural history from Ritz I , including additional undisputed facts that are relevant to our decision on remand:

"At approximately 10:15 p.m., police received a dispatch report that a man and a woman were fighting in a driveway near a vehicle that had crashed into a ditch. At approximately 10:30 p.m., Detective McCourt of the Brookings Police Department arrived at the scene. Deputy Lorentz of the Curry County Sheriff’s Office also arrived shortly after. Police observed a white truck in a ditch in close proximity to a driveway. A woman, Wilson-McCullough, was at the scene. Her statements to Lorentz established that she lived at the residence with defendant, who had driven the truck and had been drinking that day. Wilson-McCullough accompanied Lorentz up the driveway to the residence, a small trailer, to look for defendant. Wilson-McCullough opened the door, and Lorentz looked through the door. Lorentz could see the whole trailer through the door and did not see defendant. Lorentz heard what sounded like someone running through nearby bushes, but he could not locate anyone there, either."

270 Or. App. at 89, 347 P.3d 1052. McCourt and Lorentz left, and Lorentz drove to the crash site, where State Trooper Spini had also arrived. After investigating the crash site,

"Spini returned to the trailer residence at 12:56 a.m. As he was pulling up, he saw defendant standing just outside the trailer, near the door. Seconds later, defendant went inside and closed the door. He briefly stuck his head out the door, then closed it again. Spini called out to defendant to ask him to come outside. At 1:05 a.m., Spini called Lorentz to report that he had seen defendant enter the residence. Lorentz returned to the scene at 1:12 a.m. At Spini’s request, [three] Brookings police units also arrived to provide assistance."

Id. at 90, 347 P.3d 1052. The Brookings officers formed a perimeter around the trailer, which was a small, 26-foot travel trailer. Lorentz and Spini discussed what to do next.

"Lorentz and Spini decided that they needed to act quickly. Lorentz later testified that obtaining a telephonic warrant in Curry County takes approximately 45 minutes. Spini testified that he could have used his ‘in-car computer’ to prepare a warrant application at the scene. Nevertheless, he estimated that it would have taken 90 minutes to prepare the warrant application, and then slightly longer to actually obtain the warrant. The trial court found that testimony credible. Spini testified that he decided not to apply for a warrant because he was concerned about the loss of evidence due to the dissipation of alcohol in defendant’s bloodstream; thus, he believed that an exigency existed such that no warrant was required. Lorentz also testified that they wanted to minimize the time that the Brookings officers were at the scene because those officers were out of their jurisdiction and needed to return to their normal duties.

"The trailer door was locked. Lorentz entered the trailer through a window, then opened the door for Spini. Defendant was in the bathroom. After some conversation, defendant agreed to come out of the bathroom. *** Spini arrested him at 1:33 a.m. *** Defendant made incriminating statements, and a breath test administered at 2:23 a.m. showed that defendant had a blood alcohol concentration (BAC) level of 0.14 percent.

"Before trial, defendant moved to suppress evidence obtained after the warrantless entry into his home. He argued that the entry was unlawful, and that his statements and the BAC evidence were required to be suppressed because of the illegality. The state argued that the entry was lawful based on probable cause and exigent circumstances. The state also argued that the entry was justified because, when defendant retreated into the interior of his trailer, police were allowed to follow him inside because they were in ‘hot pursuit.’ "

Id. at 90-91, 347 P.3d 1052.

The trial court agreed with the state and denied defendant’s motion, concluding:

"The officers did have probable cause to believe that defendant had committed the offense of driving under the influence prior to entry into the trailer. Shortly before entry the officers had probable cause to believe that he was in the trailer and that evidence of DUII might be obtained by sample of blood or breath. They had reason to believe that the defendant saw them and heard them and was attempting to defeat an otherwise legal contact in a public place by retreating into the interior of the trailer.

"Exigent circumstances and hot pursuit both provide a valid basis for entry into the trailer without a warrant in this case. Additionally, the officers had safety concerns because the Brookings officers, who were providing back-up, would have to stay a much longer period of time to provide back-up in the event that a warrant was sought, leaving them unavailable to patrol in the city of Brookings, which is where they ordinarily work. This arrest occurred outside of the city of Brookings. Officer safety concerns compelled those Brookings officers to stay on scene until the arrest was effected, so this was an additional exigent circumstance."

On appeal, defendant assigns error to the denial of his motion to suppress, arguing that the warrantless entry violated his rights under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. In Ritz I , we affirmed on the ground that the state had proven exigency by showing that the officers reasonably believed that defendant’s BAC would have lost all evidentiary value if officers waited to obtain a warrant. 270 Or. App. of 98-99. In light of that conclusion, it was unnecessary to address the other justifications—hot pursuit and officer safety—cited by the trial court and the state. Id. at 93, 347 P.3d 1052.

The Supreme Court reversed and remanded our decision, reasoning that, "at the time that officers entered defendant’s home, they had no reason to think that obtaining a warrant to enter the home would delay a consensual search for defendant’s BAC evidence, because they had no reason to think that defendant would consent to such a search." Ritz II , 361 Or. at 796, 399 P.3d 421. The Supreme Court did not discuss other possible exigencies justifying the warrantless entry, leaving that to be addressed on remand. The parties have submitted supplemental briefing.

Both Article I, section 9, and the Fourth Amendment protect persons against unreasonable searches by police. Under those provisions, a warrantless search is per se unreasonable unless the search falls within one of the "few specifically established and well-delineated exceptions" to the warrant requirement. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967) ; State v. Baker , 350 Or. 641, 647, 260 P.3d 476 (2011). One exception to the warrant requirement is the "exigency" exception, under which the state must show that police had probable cause to believe that defendant committed a crime and that an exigency exists. State v. Snow , 337 Or. 219, 223, 94 P.3d 872 (2004). Exigent circumstances are those that "require[ ]police to act swiftly to prevent danger to life or serious damage to property, or to forestall a suspect’s escape or the destruction of evidence." State v. Stevens , 311 Or. 119, 126, 806 P.2d 92 (1991). Defendant does not dispute that police had probable cause to believe that defendant had committed the crime of DUII;...