Argued and Submitted November 25, 2013,
Beaverton Municipal Court. M8060071, UC7588121. Les Rink, Judge pro tempore.
Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[265 Or.App. 63] EGAN, J.
The question in this case is whether, under either Article I, section 9, of the Oregon Constitution, or the Fourth Amendment to the United States Constitution, it was lawful for a police officer to kick in the door of defendant's residence and arrest him without a warrant after the officer developed probable cause to believe that defendant had driven his car while intoxicated. The trial court concluded that the warrantless entry was lawful on the ground that immediate police action was necessary to protect defendant's young son from a threat of harm. In this appeal by defendant challenging his resulting conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and one count of recklessly endangering another person, ORS 163.195, the state mounts only a token effort to argue that the trial court's conclusion on that point was correct. Instead, it identifies a different " exigent circumstance" that justified the warrantless entry--that evidence of defendant's intoxication was dissipating. Relying on State v. Machuca, 347 Or. 644, 227 P.3d 729 (2010), the state contends that, contrary to the trial court's reasoning, the state was not required to prove that there was insufficient time for the officer to obtain a warrant as a necessary part of discharging its burden to justify the warrantless entry. We reject both the legal reasoning relied upon by the trial court and that underlying the state's proffered alternative basis for affirmance. Accordingly, we reverse and remand.
The facts are undisputed. Defendant was at the grocery store with a young boy, later determined to be his then-seven-year-old son. A store clerk perceived that defendant was drunk. He followed defendant out to the parking lot, where he observed defendant and his son get into a car and drive away. The clerk took note of the license plate number and passed that information along to police, who determined defendant's home address, which was at an apartment complex. Officer Burke arrived at the complex and observed a parked car with the license plate that he sought. After Burke got out of his car, he heard a male voice " yelling in slurred fashion." The officer turned and saw a man, defendant, standing on a flight of stairs; defendant matched the description of the suspect that Burke [265 Or.App. 64] had received. Defendant was with his son, who Burke perceived to be " pretty young," perhaps seven years old.
Burke assumed that defendant's yelling was directed at the child. Burke ran to the base of the stairs and looked up at defendant. Burke, who was in uniform and displaying a badge, yelled " stop." Defendant looked down but did not stop. Instead, he " urged or pushed" his son up the stairs and into an apartment and slammed the door shut. Burke then observed defendant and his son closing the blinds and turning the lights off.
Burke arrived at the door almost simultaneously with two other officers. He pounded on the door and demanded that defendant come out. There was no response. Around that point, Burke learned from dispatch that defendant had a concealed weapons permit. He got in radio contact with his sergeant and announced his intention to break down the door; the sergeant agreed with that course of action. Burke testified that, at that point, his uppermost concern was the safety of the child. Burke took a few seconds to brief his fellow officers about the tactics that they would employ in entering the apartment; he then kicked the door in and called for defendant to come out. Hearing no response, the officers entered with their guns drawn. Defendant came forward and was arrested. At some later point, defendant refused Burke's subsequent requests that he submit to tests to detect alcohol in his system.
As noted, defendant was charged with one count of DUII and one count of recklessly endangering another person, based on his having driven with his son in the car while under the influence. He filed a pretrial motion in which he sought to suppress all evidence derived from the entry of his home, claiming that the evidence was the product of unconstitutional police action under both Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The court held a hearing on that motion, at which the state argued that certain exigent circumstances justified the warrantless entry. The exigencies cited by the state were a threat of harm to the child, [265 Or.App. 65] the need to prevent the destruction of evidence of defendant's intoxication, and the fact that the police were in " hot pursuit" of defendant at the time that he retreated into his apartment.
At the hearing, Burke was questioned about whether he could have obtained, over the phone, a warrant that would have granted him the authority to enter the apartment before he kicked in the door. On that point, the trial court found as follows:
" Officer Burke at hearing testified on cross-examination that telephone warrants are not available in Washington County and that the Beaverton Municipal Court does not issue search warrants. The officer did not attempt to get a warrant by telephone in this case, nor has he at any other time. The officer testified he knows because of his training and experience as a Beaverton officer that telephone warrants are not given in his jurisdiction. That evidence is uncontroverted."
The court then turned to its legal conclusions regarding the exigent circumstances identified by the state as those that justified the warrantless entry. The court first concluded that the potential loss of the evidence of defendant's intoxication could not support the warrantless entry, stating:
" When a warrantless search is challenged * * * the State must prove that a warrant could not be obtained in time to prevent the loss of evidence of intoxication. In this case the defendant is charged with DUII and Officer Burke has testified that he could not obtain a warrant by telephone because such things do not exist in this jurisdiction. There is no evidence what-so-ever as to whether a warrant could have been obtained by traditional in-person methods. A warrantless search cannot be made on the basis of exigency unless it is shown that it was not practical under the totality of circumstances to obtain a warrant. There is a failure of proof here. There is no evidence that a warrant could not have been swiftly obtained by the traditional approach of an officer to a judge. In the absence of this proof the warrantless entry and search of defendant's apartment
on a loss of evidence basis cannot be justified."
[265 Or.App. 66] After next concluding that the entry could not be justified as necessary to prevent defendant's escape--a conclusion that is not challenged in this appeal--the court turned to examine whether the entry could be justified on the ground that Burke gave as his reason for making it, viz., the need to prevent harm to the child. The trial court agreed that the need to prevent such harm justified, as a constitutional matter, the warrantless entry, stating: " An intoxicated adult in charge of a 7 year old child is[,] perhaps per se, a hazard to the child. An intoxicated adult who includes a powerless child in an unfolding episode of aggressive defiance of the police is most certainly a hazard to a child." On that basis, the trial court denied defendant's motion to suppress. He was later convicted of the charged crimes. This timely appeal followed.
Defendant's sole assignment of error is that the trial court erred in denying his motion to suppress. We review the trial court's legal determination for errors of law. State v. Hampton, 247 Or.App. 147, 149, 268 P.3d 711 (2011), rev den, 352 Or. 107, 284 P.3d 485 (2012). As he did below, defendant cites both Article I, section 9, and the Fourth Amendment as the grounds for suppression. In his opening brief, defendant contends that the state failed to prove that the circumstances known to Burke at the time he kicked in the door presented an emergency concerning the child's safety that would justify a warrantless entry. In response, the state makes only a perfunctory effort to argue that the trial court reached the correct legal conclusion on that point, and, in fact, argues that we do not need to reach that question at all. Instead, the state's main effort is to argue that the trial court was correct for a different reason: that under Machuca, 347 Or. at 644, the ongoing dissipation of evidence of defendant's intoxication justified the warrantless entry and arrest. We [265 Or.App. 67] shall address the issues presented under Article I, section 9, before turning, if necessary, to address those presented under the Fourth Amendment. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (courts address state constitutional issues before those under the federal constitution).
Article I, section 9, provides that " [n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search[.]" " Warrantless entries and searches of premises are per se unreasonable unless they fall within one of the few specifically established and carefully delineated exceptions to the warrant requirement." State v. Bridewell, 306 Or. 231, 235, 759 P.2d 1054 (1988). One such exception applies when police have probable cause to arrest a suspect and there are " exigent circumstances." State v. Kruse, 220 Or.App. 38, 42, 184 P.3d 1182 (2008); see also Bridewell, 306 Or. at 236 (" Securing a warrant before entry is unnecessary if exigent circumstances, in addition to probable cause, exist, i.e., if an 'emergency' exists." ). " An exigent circumstance is a situation that requires ...