On review from the Court of Appeals.
Joseph P. Morray, Corvallis, argued the cause for petitioners. With him on the briefs were Colley and Morray, Corvallis.
Walter L. Barrie, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
In Banc. Denecke, J. O'Connell, C.J., dissenting. McAllister, J., joins in this dissent.
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 P2d 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 Ed2d 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 P2d 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), 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. 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 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.
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.
In Miller v. United States, 357 U.S. 301, 78 S Ct 1190, 2 L Ed2d 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.
Sabbath v. United States, 391 U.S. 585, 88 S Ct 1755, 20 L Ed2d 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), 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), 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 Cal2d 299, 66 Cal Rptr 1, 437 P2d ...