Appeal from Circuit Court, Linn County. Wendell H. Tompkins, Judge. No. 40937.
Terry K. Haenny, Salem, for appellant.
Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem, for respondent.
Schwab, Chief Judge, and Foley and Thornton, Judges.
On April 25, 1972, police officers executed a search warrant at defendant's residence in Albany, Oregon. They found and seized various narcotic and dangerous drugs. Based on this evidence, defendant was convicted of two counts of criminal activity in drugs in violation of ORS 167.207. His contentions on appeal are that the trial court erred: (I) by not granting his motion to suppress the drugs on the grounds that the officers failed to announce their identity and purpose before opening the door to his house; and (II) by sustaining objections to testimony challenging the facts in the affidavit supporting the search warrant. We affirm.
Three or four officers executed the search warrant in the middle of the afternoon on April 25. While one officer went to the back door the others went to the front door. Officer Klinge knocked on the closed front door "seven or eight times." He waited "probably a minute," listening for a response or any other sounds within the residence. Hearing nothing, he opened the unlocked door and, without entering, announced, "Police officers. * * * We are here with a search warrant." The officers at the front door then entered, found defendant asleep, read him the search warrant and advised him of his rights -- presumably after waking him up -- and proceeded to search.
Defendant contends that since Officer Klinge made the announcement of identity and purpose after opening the front door, instead of before doing so, the search that followed was invalid.
Knock and announce issues have been considered
by us on several occasions.*fn1 Recently the Oregon Supreme Court in State v. Valentine/Darroch, 264 Or 54, 504 P2d 84 (1972), cert denied 412 U.S. 948 (1973), decided two major knock and announce issues that had previously been unresolved in our cases. Specifically, the Supreme Court held that the failure of police officers to knock and announce when executing a search warrant did not violate Oregon Constitution, Art I, § 9,*fn2 and that violation by the police of the statutory knock and announce requirement, ORS 133.290,*fn3 as distinguished from constitutional requirements, would not result in suppression of the evidence seized.
Therefore, the only knock and announce issue now cognizable in Oregon is whether the police entry violated the Fourth Amendment to the United States Constitution*fn4 as interpreted in Ker v. California, 374 ...