State v. Valentine

• Decision Date: 14 December 1972
• Citation: 504 P.2d 84,264 Or. 54
• Parties: STATE of Oregon, Respondent, v. Geoffrey Kevin VALENTINE and Scott Marlow Darroch, Petitioners.
• Court: Oregon Supreme Court

Page 84

504 P.2d 84

264 Or. 54

STATE of Oregon, Respondent, v. Geoffrey Kevin VALENTINE and Scott Marlow Darroch, Petitioners.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 4, 1972.

Decided Dec. 14, 1972.

Joseph P. Morray, Corvallis, argued the cause for petitioners. With him on the briefs were Colley & Morray, Corvallis.

Walter L. Barrie, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

DENECKE, Justice.

The issue is whether evidence should have been suppressed because it was allegedly obtained by officers entering premises without first knocking and announcing their presence and purpose.

The trial court denied defendants' motion to suppress the introduction of narcotics seized by the authorities. The defendants were convicted of the possession of narcotics. The Court of Appeals affirmed. State v. Darroch, 8 Or.App. 32, 492 P.2d 308 (1971). We granted the petition for review.

A federal undercover agent purchased a small quantity of hashish from the defendant Valentine. Later, the agent negotiated with Valentine and the defendant Darroch to buy a large quantity of hashish. The agent was told to come at noon to the apartment shared by the defendants to make the purchase. Based upon the agent's information, a search warrant for the apartment was obtained and delivered to a Corvallis police officer. This officer and other law enforcement officers went to the vicinity of the apartment.

The undercover agent was admitted to the apartment and was shown a five-pound box of hashish. He said he would go back to his car and get the money. He went out and according to his testimony left the apartment door so it appeared closed but the latch did not catch so the door could be opened easily.

The undercover agent informed the other officers there was five pounds of hashish inside and gave the signal to go in and arrest. One of the other officers, in plain clothes, pushed the door open and stepped inside with a drawn gun and announced he was a police officer. The other officers entered thereafter, including the one with the search warrant. Upon search the hashish, which was the subject of the motion to suppress, was found.

The state does not contend that the officers knocked or announced their presence by any means before they entered.

The defendants contend the entry was in violation of the Fourth and Fourteenth amendments to the Federal Constitution, Art. I, § 9 of the Oregon Constitution (unreasonable searches or seizures) and ORS 133.290.

We interpret Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), as holding that an officer's failure to comply with the announcement requirement, when it is applicable, renders the ensuing search and seizure unreasonable and, therefore, in violation of the Fourth Amendment. The Oregon Court of Appeals in State v. Gassner, 6 Or.App. 452, 488 P.2d 822, 824 (1971), similarly interpreted Ker v. California, supra (374 U.S. 23).

The state contends that the entry was not in violation of the announcement requirement because the door was not latched and entry was obtained by ruse or subterfuge which is not in violation of the knock and announce rule. The Court of Appeals' opinion was based upon somewhat similar reasoning.

In order to determine the validity of these arguments it would be advantageous to know the reasons underlying the rule prohibiting unannounced entries, whether the rule be constitutional or statutory.

The only opinion in Ker v. California, supra (374 U.S. 23, 83 S.Ct. 1623), that states reasons for the constitutional announcement rule is the dissent of Mr. Justice Brennan. He stated: 'Innocent citizens should not suffer the shock, fright or embarrassment attendant upon an unannounced police intrusion.' 374 U.S. at 57, 83 S.Ct. at 1642. The footnote to this statement elaborates:

'The importance of this consideration was aptly expressed long ago by Heath, J., in Ratcliffe v. Burton, 3 Bos. & Pul. 223, 230, 127 Eng.Rep. 123, 126--127 (1802):

"The law of England, which is founded on reason, never authorises such outrageous acts as the breaking open every door and lock in a man's house without any declaration of the authority under which it is done. Such conduct must tend to create fear and dismay, and breaches of the peace by provoking resistance. This doctrine would not only be attended with great mischief to the persons against whom process is issued, but to other persons also, since it must equally hold good in cases of process upon escape, where the party has taken refuge in the house of a stranger. * * *." 374 U.S. at 57, 83 S.Ct. at 1642.

In another part of the opinion Mr. Justice Brennan stated another purpose of the rule was 'to minimize the hazards of the officers' dangerous calling.' 374 U.S. at 58, 83 S.Ct. at 1642.

In Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), the Court based its decision on its supervisory powers and not on the Constitution. It held that evidence had to be excluded because the entry by which the evidence was obtained was unlawful. Mr. Justice Brennan, for the majority, apparently believed the rule was rooted in 'the reverence of the law for the individual's right of privacy in his house.' 357 U.S. at 313, 78 S.Ct. at 1198.

Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), also excluded evidence because it was seized after an unannounced entry. It, too, was based upon the court's supervisory power. The Court cited Miller v. United States, supra (357 U.S. 301, 78 S.Ct. 1190), to the effect that the rule is based upon the protection of a householder's right of privacy in his home and for the protection of law enforcement officers.

We consider it unlikely that the Court would exclude good evidence upon the constitutional ground that exclusion was the only feasible method of preventing police officers from endangering their lives by making unannounced entries.

The California court more fully articulated one of the reasons advanced by Mr. Justice Brennan in his dissent in Ker v. California, supra (374 U.S. 23, 83 S.Ct. 1623), as a basis for the requirement of an announced entry. 'The statute reflects more than concern for the rights of those accused of crime. It serves to preclude violent resistance to unexplained entries and to protect the security of innocent persons who may also be present on premises where an arrest is made.' People v. Rosales, 68 Cal.2d 299, 66 Cal.Rptr. 1, 4--5, 437 P.2d 489, 492--493 (1968). Accord, Greven v. Superior Court of County of Santa Clara, 71 Cal.2d 287, 78 Cal.Rptr. 504, 455 P.2d 432, 436 (1969).

The Oregon Court of Appeals found the reasoning of the California Court persuasive and stated:

'The requirement of announcement and refusal prior to forcible entry exists primarily for the purposes of avoiding unnecessary violence and destruction of evidence--and not solely for the protection of privacy. Privacy is usually otherwise adequately protected under the Fourth Amendment to the United States Constitution and Oregon Constitution Art. I, § 9. * * *.' State v. Mitchell, 5 Or.App. 230, 487 P.2d 1156, 1158 (1971).

To summarize, it appears that the announcement requirement has been given federal constitutional status (1) to protect persons who might be injured by violent resistance to unannounced entries by law enforcement officers, and (2) to protect the householder's right to privacy. This latter reason has been criticized, with some justification. Sonnenreich and Ebner, No-knock and Nonsense, an Alleged Constitutional Problem, 44 St.John's L.Rev. 626, 647 (1970).

It must be remembered that the police officers have the right to enter after they announce their presence and purpose and, if entry is denied, they have the right to force entry. The only right of privacy protected by the announcement requirement is the right to know who is entering, why he is entering, and a few seconds to prepare for his entry.

The 'ruse and subterfuge' decisions provide some insight into the prevailing judicial views on the basic purposes of the announced entry requirement.

Leahy v. United States, 272 F.2d 487 (9th Cir. 1960), was decided after Miller v. United States, supra (357 U.S. 301, 78 S.Ct. 1190). The facts in Leahy were that a federal revenue agent obtained an arrest warrant for defendant. The defendant was sought for evading a tax on wagering. The agent came to defendant's home and apparently knocked and stated he was an agent from the County Assessor's Office. Based upon this ruse, the agent gained admittance and got inside and arrested defendant. The court held the entry did not violate the 'knock and announce' provisions of 18 U.S.C.A. § 3109 because there was no 'breaking.' The court further stated: 'There is no constitutional mandate forbidding the use of deception in executing a valid arrest warrant.' 272 F.2d at 490. The court observed that the officers had reason to believe that if they tried to arrest the defendant before gaining entry, there might have been a gun battle endangering life.

Jones v. United States, 113 U.S.App.D.C. 14, 304 F.2d 381 (1962), is not quite as clear. There, the officers had a search warrant for defendant's apartment. Defendant was suspected of the sale of narcotics. One of the officers knocked, the defendant said, 'Who's there?'; the knocking officer said nothing; the defendant called out of the window to a 'stranger' to call the janitor as there was someone at his door who would not go away. The 'stranger's was another officer who got the janitor and had him knock on defendant's door. The defendant again asked who was there and the janitor replied, 'the janitor.' The defendant opened two of the locks and partly opened the door. The officer thrust his badge through the opening and said he had a search warrant. The defendant ran back through the apartment. The officer slipped...