State v. Stanley

• Decision Date: 23 August 2017
• Docket Number: A158936.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Shawn Galen STANLEY, Defendant-Appellant.
• Court: Oregon Court of Appeals

287 Or.App. 399

404 P.3d 1100

STATE of Oregon, Plaintiff-Respondent,

v.Shawn Galen STANLEY, Defendant-Appellant.

A158936.

Court of Appeals of Oregon.

Argued and submitted December 21, 2016.

August 23, 2017

Emily P. Seltzer, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge.^*

GARRETT, J.

Defendant was convicted after a bench trial of harassment, ORS 166.065, and interference with making a report, ORS 165.572. He appeals the denial of his motion to suppress evidence obtained after police entered his home without a warrant. We conclude that the warrantless entry into defendant's home was not justified by the emergency aid exception to the warrant requirement. We also reject the state's alternative argument that defendant consented to the entry. Accordingly, we conclude that the trial court erred in denying defendant's motion to suppress, and reverse and remand the judgment.

In reviewing the denial of a motion to suppress evidence, we review the facts on which the denial was based for any evidence, and the trial court's ruling based on those facts for legal error. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993) ; see also State v. Freund , 102 Or.App. 647, 651, 796 P.2d 656 (1990) ("We are not bound by the trial court's conclusions, if the historical facts do not meet the constitutional standards for a valid consent to search."). Where findings of fact are not made on all issues and there is evidence from which such facts could be decided more than one way, we presume that the facts were decided in a manner consistent with the trial court's ultimate conclusion. Ehly , 317 Or. at 75, 854 P.2d 421. We state the facts in accordance with that standard.

The state's evidence at the hearing on the motion to suppress consisted of the testimony of Officers Burnum and Hill, who responded to a 9-1-1 call from the victim, defendant's then-girlfriend, reporting a domestic disturbance. The officers testified that they were informed by dispatch that the victim had been attacked by defendant; that at one point, defendant had taken her phone to prevent her from calling 9-1-1; that defendant had broken down the door to a bathroom to "get at her"; and that there was a gun in a safe somewhere inside the home. The officers were also told that the victim was upstairs and "felt safe" there, and that defendant was outside waiting for police to arrive.

Burnum, Hill, and a third officer arrived and found defendant sitting on the front porch of the house. Both Burnum and Hill testified that defendant was calm and compliant and that the encounter was "casual." The officers determined that the house belonged to defendant and that the victim was inside with her dog. Hill then told defendant, "I'm going to go in and check on [the victim]." Defendant said something like, "Go on ahead. She's inside." Neither officer recalled asking for defendant's consent to enter the house, but Hill believed that defendant had consented to the entry through his reply. When questioned at the suppression hearing regarding the basis for entering without a warrant, Burnum testified that the entry was necessary "to investigate if there was a crime, in fact, that happened," to see "if anybody was injured inside," and because, under the circumstances, there was "a person [who] was potentially injured." Additionally, Hill testified that it was her understanding that, pursuant to the community caretaker function, police are "mandated" to enter the home in domestic violence situations whenever "there may be somebody injured or hurt inside" to ensure the safety of the individual. Thus, according to Hill, a warrantless entry into defendant's home was necessary "to make sure that [the victim] was okay."

Hill and the other officer entered the house to locate the victim, while Burnum continued interviewing defendant. The victim showed the officers the damaged door to the upstairs bathroom. She was upset and her right ear and side of her face were red. While inside, the officers also took photos of the bathroom door and of the victim's injuries, which were later admitted into evidence at trial. Defendant was subsequently charged with one count each of harassment and interference with making a police report.

Before trial, defendant moved to suppress all evidence obtained after the officers entered his home on the ground that the warrantless entry violated Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution.¹ Defendant argued that the warrantless entry was not justified by any exception to the warrant requirement and that he did not consent to the entry, but had merely acquiesced to Hill's declaration that she intended to enter the home. The state responded that the entry was justified under the emergency aid exception, or, alternatively, that defendant had consented. The trial court agreed with the state:

"I am going to deny the motion to suppress the going into the house for several different reasons: one, the information that the police officers had was a victim had been attacked, felt safer upstairs, had the phone taken away, there was a gun somewhere in the house, maybe it was upstairs, whatever, and under the circumstances, I believe that they had the right to go in and assist * * * a person who had allegedly been attacked; secondarily, you know, his gesture to go ahead smacks to me of permission. When they indicated that, you know, they wanted to do that, certainly if he didn't want them to do it, he could have said so[.]

" * * * * *

"* * * And so I think under the community caretaking exception, this clearly was allowable for them to come in."²

Following a bench trial, the court convicted defendant on both counts. At sentencing, the court imposed a single $500 fine and a $60 "Unitary Assessment" on each count as part of defendant's sentence.

On appeal, defendant raises two assignments of error. In his first assignment, defendant contends that the trial court erred when it denied his motion to suppress because neither reason cited by the court justified the warrantless entry into defendant's home. Specifically, defendant argues that the emergency aid exception is unavailing because officers lacked a subjective belief, or objectively reasonable grounds for a belief, that the victim had suffered a "serious physical injury or harm" requiring immediate assistance. Defendant further argues that he did not consent to the warrantless entry because the officer's statement—"I'm going to go in and check on [the victim]"—was not a request for consent and did not give defendant an opportunity to deny officers entry into the home. In his second assignment of error, defendant argues that the trial court plainly erred by imposing the $60 "Unitary Assessment" fees because the statute authorizing such assessments, former ORS 137.290 (2009), was repealed before sentencing in this case. Or. Laws 2011, ch. 597, § 118.

We begin with defendant's arguments regarding the emergency aid exception. Under Article I, section 9, warrantless entries and searches are per se unreasonable unless they fall within one of the few well-delineated exceptions to the warrant requirement. State v. Baker , 350 Or. 641, 647, 260 P.3d 476 (2011) (citing State v. Davis , 295 Or. 227, 237, 666 P.2d 802 (1983) ). One such exception is the emergency aid exception, which applies "when police officers have an objectively reasonable belief, based on articulable facts, that a warrantless entry is necessary to either render immediate aid to persons, or to assist persons who have suffered, or who are imminently threatened with suffering, serious physical injury or harm." Baker , 350 Or. at 649, 260 P.3d 476 (footnotes omitted). Stated another way, in order for the emergency aid exception to apply, the state must prove that, at the time of the warrantless entry, the officers held a subjective belief that there was an immediate need to assist a person who has suffered (or is imminently threatened with suffering) "serious physical injury or harm," and that that belief was objectively reasonable. State v. Hamilton , 285 Or.App. 315, 321, 397 P.3d 61 (2017) ; State v. McCullough , 264 Or.App. 496, 502-03, 336 P.3d 6 (2014).

In this case, it is unnecessary to address whether objectively reasonable grounds existed for the officers to believe that the victim had suffered serious physical injury because we conclude that there is no evidence in the record that the officers subjectively held such a belief. The record of the motion-to-suppress hearing reveals that neither Burnum nor Hill testified to having an actual belief that the victim was seriously injured and in need of immediate assistance. Burnum testified only that she needed to see "if there was a crime, in fact, that happened," "if anybody was injured inside," and that the victim was "a person [who] was potentiallyinjured." (Emphases added.) Similarly, Hill testified to her knowledge that there had been a "domestic situation" and that defendant had "attacked" the victim and taken her phone, and that, under the community caretaking exception, a warrantless entry was required "to make sure that [the victim] was okay." (Emphasis added.)

That testimony establishes that the officers were, instead, acting out of a concern to find out whether the victim was injured, and a belief that they were required to do so in situations involving reported domestic violence. Our recent case law makes clear, however, that the emergency aid exception requires more than a speculative concern that someone may need assistance; rather, police must actually have a subjective belief that a person is...