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State v. McHenry

Court of Appeals of Oregon

July 1, 2015

STATE OF OREGON, Plaintiff-Respondent,
BRUCE COLE McHENRY, aka Cole Bruce McHenry, Defendant-Appellant

Submitted February 25, 2015

12CR1023. Curry County Circuit Court. Jesse C. Margolis, Judge.

Reversed and remanded.

Peter Gartlan, Chief Defender, and Erin Snyder, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Sarah M. Villanueva, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.


[272 Or.App. 149] GARRETT, J.

Defendant appeals a judgment of conviction for interfering with a peace officer. Police officers responded to an anonymous 9-1-1

Page 751

call reporting a fight and a person bleeding in defendant's home. When officers arrived, they observed several juveniles outside the home, drinking alcohol. Believing that they had probable cause to suspect the crime of furnishing alcohol to minors and that exigent circumstances existed, officers entered the home, found defendant, and ordered him to remain present. Defendant left the scene before officers could interview him. Defendant was convicted of interfering with a peace officer by failing to obey a lawful order, ORS 162.247(1)(b).

On appeal, defendant assigns error to the trial court's denial of his motion to suppress the evidence that he disobeyed the police order. Defendant reasons that that evidence derived from a warrantless search of his home that was unlawful because, regardless of purported exigent circumstances, police lacked probable cause to suspect that any crime had occurred. We reject defendant's second assignment of error without written discussion. On review for legal error, State v. Warner, 181 Or.App. 622, 624, 47 P.3d 497, rev den, 335 Or. 42, 57 P.3d 581 (2002), we agree with defendant that the warrantless entry into his home was not supported by probable cause and that the trial court consequently erred in denying the motion to suppress. We therefore reverse and remand.

The relevant facts are undisputed. Officer Lorentz and another deputy arrived at the home that defendant shared with his mother, Geinger. At the time of their arrival, the deputies knew only that an anonymous caller had reported a fight and a person bleeding inside the home. The deputies saw approximately nine juveniles outside the home and heard loud music playing inside. When Lorentz announced his presence, five members of the group ran inside and closed the door. Lorentz questioned the four remaining people. At trial, Lorentz testified that some of them appeared to be intoxicated, admitted drinking alcohol, and identified defendant as " the host of the party involving the alcohol." They also gave Lorentz their dates of birth; they were all underage. Lorentz testified that they were [272 Or.App. 150] " ambivalent" about where the alcohol came from. The four juveniles denied that a fight had occurred or that anyone had been injured.

Lorentz knocked on the front door, which swung open. Through the open door, Lorentz observed multiple open cans of beer and " red Solo cups, Dixie cups." He also noticed a plate containing what appeared to be marijuana. From where he was standing on the patio, Lorentz ordered everyone present to leave the home and wait outside. Approximately 15 to 20 people complied. After Lorentz called out for defendant and received no answer, he entered the home. He later testified that he believed the crime of furnishing alcohol to minors had been committed and he was concerned about the possible destruction of evidence (due to the disposal of containers as well as the dissipation of alcohol from the juveniles' blood). The second officer, Freeman, found defendant hiding in a bathroom. Lorentz told defendant that he was not free to leave. Lorentz and other officers proceeded to interview the guests and issue citations to the minors present. During that time, with the deputies' permission, defendant was moving about, inside and outside the house, cleaning up. When the officers were done interviewing others, they looked for defendant but were unable to locate him.

Several days later, Lorentz returned to the residence, found defendant, issued him Miranda warnings, and interviewed him. Defendant acknowledged that he had heard Lorentz tell him not to leave the scene. Defendant said that he had fallen asleep in a car. Defendant also told Lorentz that " he was the host of the party" but, when asked if he had ...

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