State v. Vance, C--70--11--0500

• Decision Date: 06 January 1972
• Docket Number: No. C--70--11--0501,Nos. C--70--11--0500--C,No. C--70--11--0500,C--70--11--0501--CR,C--70--11--0500,C--70--11--0501,s. C--70--11--0500--C
• Citation: 492 P.2d 493,93 Adv.Sh. 1779,7 Or.App. 566
• Parties: STATE of Oregon, Appellant, v. Arlanda Arthur VANCE (Cr), Respondent. STATE of Oregon, Appellant, v. Milton Quinn VANCE (Cr.), Respondent.
• Court: Oregon Court of Appeals

Page 493

492 P.2d 493

7 Or.App. 566

STATE of Oregon, Appellant, v. Arlanda Arthur VANCE (No. C--70--11--0500 Cr), Respondent.

STATE of Oregon, Appellant, v. Milton Quinn VANCE (No. C--70--11--0501 Cr.), Respondent.

Nos. C--70--11--0500--CR, C--70--11--0501--CR.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Dec. 2, 1971.

Decided Jan. 6, 1972.

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

Charles R. Harvey, Portland, for respondent Arlanda Arthur Vance, and A. I. Bernstein, Portland, for respondent Milton Quinn Vance, filed the brief for respondents.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

THORNTON, Judge.

The state appeals from an order suppressing various narcotics and narcotic paraphernalia, which were seized during a search of the home of Milton Vance, one of the defendants herein. The sole ground for suppression was that the officers executing the search warrant failed to comply with Oregon's 'knock and announce' statute, ORS 133.290. ¹ The state contends that there were exigent circumstances which excused their failure to comply with the statute.

On November 18, 1970, Officer Giani of the Portland Police Department obtained a warrant to search the person of Milton Vance and the premises where he resided for narcotics and narcotic paraphernalia. The affidavit made by Officer Giani to support the issuance of the warrant included information that marihuana was being sold on the premises and that Milton Vance carried an automatic handgun on his person in case anyone tried to 'rip him off.'

At 11:40 p.m. on November 18, 1970, eight police officers in plain clothes went to the premises, in a predominantly Negro neighborhood, to execute the warrant. Four of the officers were deployed around the back of the home. Officer Giani and the remaining three officers went to the front door. As Officer Giani approached the door, one of the occupants parted the curtains covering the glass portion of the door, looked out and observed the officers. The curtains were then closed and Officer Giani heard footsteps rapidly retreating from the door. He announced in a loud voice that they were police. Almost simultaneously the officers smashed open the door with a battering ram. The search that followed uncovered various narcotics and narcotic paraphernalia.

ORS 133.290 provides that a forced entry may only be made after the police have announced their authority and purpose and been denied entry. The state contends that the officers had good reason to believe that if they delayed their entry to comply with ORS 133.290, they would subject themselves to increased peril and that evidence would be destroyed. In State v. Mitchell et al., Or.App., 93 Adv.Sh. 89, 97, 487 P.2d 1156 (1971), we said that compliance with the 'knock and announce' statute would be excused when

'* * * (1) the police possess information which would lead them to reasonably believe the evidence would be destroyed, or (2) reasonably believe a culprit might escape, or (3) reasonably believe the police might face increased peril.' State v. Steffes, 2 Or.App. 163, 465 P.2d 905, Sup.Ct. review denied (1970); People v. Maddox, 46 Cal.2d 301, 294 P.2d 6, cert. denied 352 U.S. 858, 77 S.Ct. 81, 1...