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State v. Gerety

Court of Appeals of Oregon

June 14, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ERIN A. GERETY, true name Erin Ashley Gerety, Defendant-Appellant.

          Argued and submitted January 11, 2016

         Washington County Circuit Court D133957T Thomas W. Kohl, Judge.

          Ryan Scott argued the cause and fled the brief for appellant.

          David 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.

          Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

         Case 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.

         [286 Or.App. 176] EGAN, J.

         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 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.

         The 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.

         At that 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.

         Officer 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.

         Before 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."

         At the 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 take time."

         Defendant 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 ...


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