Submitted: July 24, 2014.
11CR1068. Curry County Circuit Court. Jesse C. Margolis, Judge.
Peter Gartlan, Chief Defender, and Jonah Morningstar, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[270 Or.App. 89] GARRETT, J.
A jury convicted defendant of driving under the influence of intoxicants (DUII), ORS 813.010, and driving while suspended, ORS 811.182. The issue on appeal is whether police violated defendant's constitutional rights when they forcibly entered his home, without a warrant, in order to apprehend defendant and obtain evidence of his blood alcohol level. The trial court ruled that the warrantless entry was permissible under the circumstances, which included defendant's evasion of police before returning to his residence. We affirm.
The relevant facts are undisputed. At approximately 10:15 p.m., police received a dispatch report that a man and a woman were fighting in a driveway near a vehicle that had crashed into a ditch. At approximately 10:30 p.m., Detective McCourt of the Brookings Police Department arrived at the scene. Deputy Lorentz of the Curry County Sheriff's Office also arrived shortly after. Police observed a white truck in a ditch in close proximity to a driveway. A woman, Wilson- McCullough, was at the scene. Her statements to Lorentz established that she lived at the residence with defendant, who had driven the truck and had been drinking that day. Wilson-McCullough accompanied Lorentz up the driveway to the residence, a small trailer, to look for defendant. Wilson- McCullough opened the door, and Lorentz looked through the door. Lorentz could see the whole trailer through the door and did not see defendant. Lorentz heard what sounded like someone running through nearby bushes, but he could not locate anyone there, either.
Lorentz returned to the crash site, where State Trooper Spini had arrived. McCourt had concluded that the truck was owned by a
third party, Zimmerman. McCourt then left the scene and went to Zimmerman's residence. McCourt interviewed Zimmerman, who confirmed that he owned the truck and had seen defendant driving it about 45 minutes earlier. Zimmerman said that defendant was driving unsafely and had damaged property. He said defendant was " slumped over" in the truck and appeared to be intoxicated. At some point, Lorentz also arrived at Zimmerman's residence and took further statements from Zimmerman. At [270 Or.App. 90] about 11:30 or 11:45 p.m., Spini took control of the investigation, and McCourt and Lorentz left. Spini waited slightly longer in case defendant returned. Spini left at about 11:50 p.m.
Spini returned to the trailer residence at 12:56 a.m. As he was pulling up, he saw defendant standing just outside the trailer, near the door. Seconds later, defendant went inside and closed the door. He briefly stuck his head out the door, then closed it again. Spini called out to defendant to ask him to come outside. At 1:05 a.m., Spini called Lorentz to report that he had seen defendant enter the residence. Lorentz returned to the scene at 1:12 a.m. At Spini's request, several Brookings police units also arrived to provide assistance. Together, the law enforcement officers formed a perimeter around the trailer and had a full view of all sides, including potential exit points.
Lorentz and Spini decided that they needed to act quickly. Lorentz later testified that obtaining a telephonic warrant in Curry County takes approximately 45 minutes. Spini testified that he could have used his " in-car computer" to prepare a warrant application at the scene. Nevertheless, he estimated that it would have taken 90 minutes to prepare the warrant application, and then slightly longer to actually obtain the warrant. The trial court found that testimony credible. Spini testified that he decided not to apply for a warrant because he was concerned about the loss of evidence due to the dissipation of alcohol in defendant's bloodstream; thus, he believed that an exigency existed such that no warrant was required. Lorentz also testified that they wanted to minimize the time that the Brookings officers were at the scene because those officers were out of their jurisdiction and needed to return to their normal duties.
The trailer door was locked. Lorentz entered the trailer through a window, then opened the door for Spini. Defendant was in the bathroom. After some conversation, defendant agreed to come out of the bathroom. The officers detected an " overwhelming odor" of alcohol. Defendant had bloodshot, watery eyes, slurred speech, and was naked. Spini arrested him at 1:33 a.m. Defendant was transported to the Curry County Jail. Defendant made incriminating [270 Or.App. 91] statements, and a breath test administered at 2:23 a.m. showed that defendant had a blood alcohol consentration (BAC) level of 0.14 percent.
Before trial, defendant moved to suppress evidence obtained after the warrantless entry into his home. He argued that the entry was unlawful, and that his statements and the BAC evidence were required to be suppressed because of the illegality. The state argued that the entry was lawful based on probable cause and exigent circumstances. The state also argued that the entry was justified because, when defendant retreated into the interior of his trailer, police were allowed ...