and submitted January 11, 2016
County Circuit Court D133957T Thomas W. Kohl, Judge.
Scott argued the cause and fled the brief for appellant.
B. Thompson, Assistant Attorney General, argued the cause for
respondent. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General.
Armstrong, Presiding Judge, and Egan, Judge, and Shorr,
Summary: Defendant appeals from a judgment of conviction for
driving under the influence of intoxicants (DUII), ORS
813.010. She assigns error to the trial court's denial of
her motion to suppress evidence, arguing that the trial court
erred when it found that exigent circumstances justified the
warrant less entry into defendant's home and the state
failed to offer credible evidence regarding how long it would
take to obtain a search warrant. Held: The trial
court did not err in denying defendant's motion to
suppress. The state met its burden to put on credible
evidence regarding the time it would take to obtain a warrant
and sufficiently proved an exigent circumstance that excused
the need to obtain a warrant under the Fourth Amendment to
the United States Constitution.
Or.App. 176] EGAN, J.
appeals from a judgment of conviction for driving under the
influence of intoxicants (DUII), ORS 813.010. She assigns
error to the trial court's denial of her motion to
suppress evidence, arguing that the trial court erred when it
found that exigent circumstances justified the warrantless
entry into defendant's home, and the state failed to
offer credible evidence regarding how long it would take to
obtain a search warrant. The state responds that the trial
court correctly denied defendant's motion to suppress
because it "presented credible evidence to establish
that there were exigent circumstances justifying the
warrantless entry into defendant's apartment." We
conclude that the trial court did not err in denying
defendant's motion to suppress. Accordingly, we affirm.
following facts are undisputed. At approximately 11:17 p.m.,
Officer Hicks of the Tigard Police Department received a
dispatch report of a reckless and possibly drunk driver.
Dispatch provided a description of the car and license plate
number. Hicks drove to the address where the car was
registered and found the car that matched the description and
license plate described by dispatch. Hicks noticed that
defendant's car was parked over the parking space line
and occupied the space to the right of it. At approximately
11:22 p.m., he knocked on the door of the address identified
for the registered owner of the car, and defendant opened the
door. Hicks noticed that defendant appeared intoxicated-she
had bloodshot eyes, was hanging on the door for balance,
slurred her words, and smelled heavily of alcohol. Hicks
asked defendant where she had been and she responded that she
had driven from her brother's house. Defendant also said
that she had not consumed any alcohol after arriving home.
point, Hicks believed that he had probable cause to arrest
defendant for DUII. Hicks was concerned with the potential
loss of evidence through alcohol dissipation and possible
tampering of evidence if defendant were to drink inside her
house. Defendant attempted to close the door, and Hicks put
his foot in the door and told her that she was not free to
leave. Defendant reopened the door and [286 Or.App. 177]
cooperated with Hicks. Hicks read defendant her
Miranda warnings and explained that another officer
was going to take over the investigation.
Davis of the Tigard Police Department arrived and observed
that defendant exhibited signs of intoxication. Davis spoke
to defendant about her drinking and asked her to perform
field sobriety tests. Defendant completed the field sobriety
tests, and Davis took her to the police station. Davis began
the breath-test procedure, including reading defendant the
statement of "implied consent rights." Defendant
would not consent to a breath test, and Davis entered a
refusal. Defendant was charged with DUII.
trial, defendant moved to suppress the evidence of her arrest
and all evidence obtained thereafter, arguing that she was
stopped and arrested within her own home without an exception
to the warrant requirement in violation of Article I, section
9, of the Oregon Constitution and the Fourth Amendment to the
United States Constitution. Specifically, defendant contended
that, "when dealing with the warrantless entry into the
home, the State must put on a showing of its attempts to get
a warrant and how those attempts either did not work or would
not have worked within a reasonable time."
hearing on the motion to suppress, Hicks testified that it
would usually take about "four to five hours" to
get a search warrant. He explained that he had prepared
search warrants before and, in his experience, to get a
search warrant, the officer would draft the warrant and email
the draft to an on-call prosecutor, the prosecutor might edit
the warrant, and, finally, a judge would approve and sign the
warrant. Hicks also explained that, during his DUII training,
he had learned that alcohol generally dissipates from a
person's system at "about a drink an hour, "
but that that rate varies depending on several other factors.
Hicks and Davis testified that the Tigard Police Department
did not use telephonic warrants because Washington County did
not have that procedure in place. Davis testified that
telephonic warrants would make the warrant procedure
"faster" but "[y]ou still have to get a hold
of the district attorney's office and/or [286 Or.App.
178] the judge specifically to have it approved, and then you
have to actually execute the warrant, which is still going to
asked to supplement the record with how long it would take an
officer to obtain a telephonic warrant. The trial court
denied defendant's request to supplement the record,
stating that the length of time it would take to obtain a
telephonic warrant is "not going to be an issue * * * as
far as deciding ...