State v. Russell

• Citation: 118 Or.App. 652,848 P.2d 657
• Parties: STATE of Oregon, Respondent, v. Frank Lewis RUSSELL, Appellant. C 88-04-31904; CA A60717. Court of Appeals of Oregon, In Banc. *
• Decision Date: 16 June 1993
• Court: Court of Appeals of Oregon

Page 657

848 P.2d 657

118 Or.App. 652

STATE of Oregon, Respondent, v. Frank Lewis RUSSELL, Appellant.

C 88-04-31904; CA A60717.

Court of Appeals of Oregon,

In Banc. ^*

Argued and Submitted June 29, 1992.

Resubmitted In Banc Oct. 14, 1992.

Decided March 17, 1993.

Reconsideration Denied June 16, 1993.

Ingrid A. MacFarlane, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender, Salem.

Michael C. Livingston, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

EDMONDS, Judge.

Defendant appeals his convictions for manufacturing and delivery of a controlled substance. ORS 475.992(1). He contends that the trial court erred by denying his motion to suppress evidence that was seized by the police after they made a warrantless entry into his home. We affirm.

The trial court's findings of historical fact are binding on us, if supported by the evidence in the record, although the legal conclusions drawn from those facts are not. If the trial court does not make findings on all factual questions at issue and there is evidence from which the facts could be decided more than one way, then we presume that the facts were decided in a manner consistent with the trial court's ultimate conclusions. State v. Warner, 284 Or. 147, 156-58, 585 P.2d 681 (1978).

The evidence shows that at 6:30 a.m. on the morning in question, defendant called his mother and told her that "the children needed a babysitter" because he was going to work and their mother [defendant's sister] had not arrived home yet. About 30 minutes later, defendant's mother, Mrs. Russell, went to the house to care for the children but the house was locked and she could not get in. The children, ages approximately 5, 7, and 8, were in the house. The oldest child told Mrs. Russell that their mother was there but "they couldn't wake her." Mrs. Russell left and returned to the house at 9:30 a.m. She knocked on the door and shouted but could not get her daughter to wake up. When the children were unable to let her in the house, Mrs. Russell called "9-1-1" for assistance.

Officer McDermott and an ambulance crew responded. Mrs. Russell told the officer that her daughter was either asleep or unconscious on the sofa inside the house and that she was "unable to arouse her to come to the door;" that her daughter's inability to answer the door might be because of a drug overdose; that three small children were inside the house with her daughter; that one of the children had tried to wake her but could not; that she had "knocked on the door and shouted;" that the doors to the house were locked with dead bolts which required a key, and that she had tried on two occasions that morning to awake her daughter. She expressed concern about the welfare of her daughter and the children.

From outside the house, McDermott could see the daughter lying on the sofa inside the house. He tried to arouse her by making noise but could not awaken her nor was he able to get the children to open the doors. His attempts to enter through the front and back doors, and the windows failed. After about 10 minutes of attempting to get in the house, he forced entry through a basement window. Before he "even got in," he observed potted marijuana plants beneath the window. Once inside the house, he went upstairs and let the ambulance crew in through the front door. They were successful in awakening the daughter by shouting at her and shaking her. As it turned out, the daughter was not ill nor was she suffering from a drug overdose and the children were also in satisfactory condition. As a result of the officer's observations when he entered the house and the subsequent seizure of the marijuana plants, defendant was convicted.

The trial court found:

"[T]he police officer's conduct in breaking into that home was clearly proper because he indeed faced an emergency, which I would hope that every police officer throughout this state would follow through on in breaking in a window when you can't get in, and I'm satisfied that the officer took all the appropriate measures in trying to enter the house to find out what was wrong with the mother, when he could clearly see little kids who needed attention."

The state contends, and the trial court agreed, that the evidence is admissible under the "Emergency Aid Doctrine," because the officer reasonably believed that he was faced with a true emergency. The assessment of whether a true emergency existed must be made in the light of the circumstances as they were at the time that the warrantless entry was made. See State v. Follett, 115 Or.App. 672, 840 P.2d 1298 (1992).

In Follett, supra, we said:

"We conclude that the Emergency Aid Doctrine provides an exception to the warrant requirement of Article I, section 9, when these conditions are met:

"(1) The police must have reasonable grounds to believe that there is an emergency and an immediate need for their assistance for the protection of life.

"(2) The emergency must be a true emergency--the officer's good faith belief alone is insufficient.

"(3) The search must not be primarily motivated by an intent to arrest or to seize evidence.

"(4) The officer must reasonably suspect that the area or place to be searched is associated with the emergency and that, by making a warrantless entry, the officer will discover something that will alleviate the emergency." 115 Or.App. at 680, 840 P.2d 1298. (Footnote omitted.)

We hold that the circumstances of this case, as found by the trial court, meet the requirements of the Emergency Aid Doctrine. The dissent would hold that, although the officer was entitled to enter defendant's house under the Emergency Aid Doctrine, the state is not entitled to use the evidence that he saw in the house in a criminal prosecution against defendant. It says that the "subsequent use of the information constitutes an unauthorized search or seizure." 118 Or.App. at 659, 848 P.2d at 661.

A "search" under Article I, section 9, is an intrusion by a governmental agent into the protected privacy interest of an individual. State v. Rhodes, 315 Or. 191, 196, 843 P.2d 927 (1992). A police officer's unaided observation of contraband from a lawful vantage point, purposefully or not, is not a search. See State v. Gohring, 311 Or. 33, 803 P.2d 1189 (1991); State v. Ainsworth, 310 Or. 613, 801 P.2d 749 (1990) (unaided observations resulting from an aerial fly-over); State v. Jackson, 296 Or. 430, 677 P.2d 21 (1984) (observation of the contents of an automobile from outside the automobile); State v. Peterson, 114 Or.App. 126, 834 P.2d 488, rev. den., 315 Or. 272, 844 P.2d 207 (1992). We hold that no search occurred because McDermott was in a place in which he had a right to be when he saw the marijuana plants as he entered the window to render emergency aid. A "seizure" occurs when there is a significant interference with a person's possessory or ownership interests in property. State v. Owens, 302 Or. 196, 207, 729 P.2d 524 (1986). Article I, section 9, prohibits only "unreasonable seizures." The subsequent seizure of the plants based on probable cause was authorized under the plain view doctrine. State v. Peterson, supra, 114 Or.App. at 130, 834 P.2d 488.

Also, the dissent relies on the dictum in State v. Bridewell, 306 Or. 231, 759 P.2d 1054 (1988), that the evidence obtained from a non-law enforcement intrusion is not admissible in a criminal prosecution. In State v. Follett, supra, 115 Or.App. at 677, 840 P.2d 1298, we pointed out that the dictum cannot be reconciled with the court's reasoning in State v. Miller, 300 Or. 203, 709 P.2d 225 (1985), cert. den., 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986), in which the court held that evidence discovered in the course of an emergency entry into a motel room was admissible in a criminal proceeding. Based on that observation, we rejected the argument that the dissent now makes.

Our holding in Follett finds additional support in State v. Paulson, 313 Or. 346, 833 P.2d 1278 (1992), in which the court held that the holding in Bridewell did not control the situation in which an occupant of a house purportedly consented to the entry of police officers in response to an emergency call. While in the house attending to the emergency, an officer saw contraband in plain view. The court said that when there is consent to search, a warrantless search is "reasonable" and remanded to the trial court for determination as to whether in fact consent occurred. Implicit in the court's holding is the proposition that if consent to entry occurred, then the subsequent observation of contraband in plain view does not preclude its admissibility into evidence in a criminal trial. ...