State v. Torres

• Decision Date: 17 August 2005
• Docket Number: 0106-34934.,A120024.
• Citation: 201 Or. App. 275,118 P.3d 268
• Parties: STATE of Oregon, Respondent, v. Steven TORRES, aka Esteban Chavarria, aka Steve Chavarria, Appellant.
• Court: Oregon Supreme Court

118 P.3d 268

201 Or. App. 275

STATE of Oregon, Respondent, v. Steven TORRES, aka Esteban Chavarria, aka Steve Chavarria, Appellant.

0106-34934.

A120024.

Court of Appeals of Oregon.

On Respondent's Petition for Reconsideration April 19, 2005.

Response to State's Petition for Reconsideration May 2, 2005.

Decided August 17, 2005.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Douglas F. Zier, Assistant Attorney General, for petition.

Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, for response.

Before HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.

ORTEGA, J.

The state seeks reconsideration of our opinion in State v. Torres, 198 Or.App. 218, 108 P.3d 69 (2005), in which we reversed the trial court's denial of defendant's motion to suppress evidence, on the ground that our opinion failed to accord proper deference to the permissible factual inferences drawn by the trial court. ORAP 6.25(1)(a) (providing that reconsideration may be based on "a claim of factual error in the decision"). As discussed below, we allow the motion for reconsideration, withdraw our former opinion, and affirm the trial court's order denying defendant's motion to suppress.

Defendant appealed his convictions for manufacture, distribution, and possession of a controlled substance, ORS 475.992(1), (2), and (4). His challenge to the trial court's denial of his motion to suppress was based on his contention that the warrantless entry by police into his house, and then into his garage where a marijuana growing operation was located, was not justified under (a) the "emergency aid" doctrine; (b) the community caretaking statute, ORS 133.033; or (c) a combination of probable cause and exigent circumstances. We agreed with defendant and reversed, holding that the officers' warrantless search was not justified. The state now seeks reconsideration, arguing that we failed to properly defer to the trial court's findings regarding noises heard by the officers.

We restate the facts as we described them in our previous opinion:

"The material facts, as found by the trial court, are undisputed. Shortly before 11:30 on the evening of March 24, 2001, Gresham police received a 9-1-1 call from an anonymous citizen informant. The caller said that she thought that a man had broken into a house across the street. According to the caller, she had spoken with the man while she had been outside smoking cigarettes, and he had remained there for `quite awhile' after she had gone inside — and then she had seen him break and climb through the neighbor's front window.

"The caller did not give an exact address, but generally described the house, and said that there was a gray minivan parked in front of the house. The caller did not say whether she believed that the residents were at home. Nor did she report that there had been any noises or signs of activity in the house after the man had broken in.

"Officer Justin Pick was the first officer to respond to the call.¹ As Pick approached the location on foot, he heard dogs barking loudly in the area immediately behind the house, which he thought might indicate that `a suspect that may have been related to this incident may have gotten across the street into those yards as well.' Pick apparently did not hear or see anything else that he regarded as suspicious or significant.

"Other officers arrived. As they approached the location, a man standing on the porch of a house flagged them down, yelling, `hey it's me, it's just me, I accidentally broke the window.' The front door of the house was wide open, and the window immediately next to the front door was broken, with a hole the size of a dinner plate, allowing a person to reach through the hole to open the door. Lights in the house were on, and there was a car parked in the driveway.

"The officers took the man, later identified as Ricky Gruetzke, into custody. Gruetzke told them that he had come to the house to visit the owner, an old friend of his; that the owner did not know he was coming, and he did not have a key to the house, so he had accidently broken the window as he was trying to slide it open; and that he had entered the house through the window.² However, when asked, Gruetzke could not (or would not) tell the police the name of his `friend,' the homeowner. The officers frisked Gruetzke and found no weapons or property that appeared to be stolen. Although Gruetzke was nervous, he did not show any signs of physical exertion or struggle, i.e., he was not `flushed, sweaty [or] excited' and there was no blood on his clothing.

"The officers then repeatedly called into the house through the front door, to learn if anyone was inside and, particularly, if anyone was injured. They received no response. As they stood on the front porch, the officers could smell the scent of fresh marijuana and believed that the house likely contained a marijuana growing operation.

"The officers then entered the house to search for other suspects and to check on whether residents might have been injured or were otherwise unable to respond. The officers `swept' the living area of the house but found no one. The house had not been ransacked, and there were no signs of struggle or any other evidence of criminal activity. There is no indication in the record as to whether, as they conducted their `sweep,' the police found any sign (other than the lights being on) that anyone had been in the house shortly before they arrived.³

"After looking through the living areas,⁴ the officers came, finally, to the door leading from the residence to the garage. One of the officers tried to open that door but it was locked and required a key to open. As the officer tried to turn the doorknob, he heard a noise coming from inside the garage, which coincided with the officer's attempt to open the door. The noise then stopped. The officer could not identify the source of the noise; it was not identifiably human. Because they did not have a key to the door, the officers decided to take it off its hinges. As they did so, they again heard an indeterminate noise.

"After the officers removed the door and entered the garage, they found a marijuana growing operation. The noise had been the sound of a transformer switching on the lighting system for the grow operation. Officers remained in the house to secure it and to wait for the owner to return. About an hour later, defendant, who was the owner, entered the house and was arrested.

"Defendant was charged with manufacture, possession, and distribution of a controlled substance (marijuana). He filed a motion to suppress, arguing that the officers' warrantless entry into his home was unlawful. The state responded that the entry was lawful under (a) the `emergency aid' doctrine; (b) the `community caretaking' statute, ORS 133.033; or (c) the `probable cause plus exigent circumstances' exception to the warrant requirement."

^"1 It appears that the police were able to identify the approximate location through the 9-1-1 tracking system. Although the record does not precisely state the interval between the 9-1-1 call and the arrival of the police, it appears that Pick arrived within five minutes and other officers arrived several minutes later.

^"2 The trial court found that, given the size of the hole in the window, Gruetzke had not crawled through the window but had, instead, reached through the hole in the window to open the front door.

^"3 For example, the record does not disclose that the police found any appliances (e.g., televisions or computers) on, any beds that appeared to be recently slept in, or any other indications of residential activity that may have been interrupted by the break-in.

^"4 The police looked only in areas that were large enough to hold or conceal a person, including closets. They did not open any drawers."

198 Or.App. at 220-22, 108 P.3d 69.

The trial court denied the motion to suppress and found that the officers had probable cause to believe that a burglary had been committed and that there were exigent circumstances justifying entry into the home to search for a possible victim of the burglary or an accomplice. The trial court also determined that the officers' entry into the garage was justified by the emergency aid doctrine, concluding that,

"having swept the residential portion of the house, there was an exigency warranting the opening — forcing open of the door between the house and the garage when Detective McGowan heard a sound corresponding in time with his trying to open the door, and although they had already started the process and made the decision, hearing the sound again when they started taking the hinges off reinforced their belief that there was somebody in the garage and they were entitled to go in and look, and look in the areas of the garage where a person making the sound might be found, including behind the black plastic.

"The officers reasonably believed there was an individual [who was] in distress and needed their assistance in the garage, or if not in distress and in need of their help, then someone who was involved in the burglary, but more likely than not, it was one or the other, and therefore they were justified in searching as they did."

In our original opinion, we held that the warrantless entry into the garage was not justified under (a) the "emergency aid" doctrine; (b) the community caretaking statute, ORS 133.033; or (c) a combination of probable cause plus exigent circumstances. Torres, 198 Or.App. at 220, 108 P.3d 69. We did not reach the question whether the officers' warrantless entry into the house was lawful. Id. at 224, 108 P.3d 69. In holding that the emergency aid doctrine did not justify the officers' entry into the garage, we relied on what we termed "three salient facts":

"First, the door required a key to open from the residential side — which necessarily meant that it had either been locked with a key from...