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State v. Ritz

Supreme Court of Oregon

August 10, 2017

STATE OF OREGON, Petitioner on Review,
RANDALL RAY RITZ, Respondent on Review.

          Argued and submitted January 12, 2016

         On review from the Court of Appeals, CC 11CR1068; CA A152111.[*]

          Paul L. Smith, Deputy Solicitor General, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Ellen F. Rosenblum, Attorney General.

          Anne Fujita Munsey, Deputy Public Defender, Salem, argued the cause and fled the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Before Balmer, Chief Justice, and Kistler, Walters, and Landau, Justices, and Brewer and Baldwin, Senior Justices pro tempore, and Tookey, Judge of the Court of Appeals, Justice pro tempore. [**]

         [361 Or. 782] Case Summary:

         Defendant moved to suppress evidence that police officers obtained after entering and searching defendant's home without a warrant. The trial court denied the motion after finding, among other reasons, that the natural dissipation of blood-alcohol evidence in defendant's body established exigent circumstances sufficient to justify the warrant less search. The Court of Appeals affirmed.


         The state failed to prove that the police officers faced exigent circumstances, because the state failed to establish that obtaining a warrant before entering defendant's home would have delayed the police officers' efforts to preserve defendant's blood-alcohol evidence.

         The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further consideration.

         [361 Or. 783] BALDWIN, S. J.

         The parties in this case raise the issue of whether the natural dissipation of alcohol in a suspect's body creates such an emergency that police officers may enter a suspect's home without a warrant in order to secure the suspect's blood-alcohol evidence. Article I, section 9, of the Oregon Constitution and the Fourth and Fourteenth Amendments to the United States Constitution prohibit unreasonable searches and generally treat warrantless searches as per se unreasonable. The warrant requirement, however, is subject to exceptions. One exception is for exigent circumstances, which include circumstances requiring officers to act quickly to prevent the destruction of evidence.

         In this case, police officers entered the home of defendant, Ritz, without a warrant, to secure evidence of his blood-alcohol concentration (BAC) after having probable cause to believe that he had been driving under the influence of intoxicants (DUII), a misdemeanor offense. ORS 813.010(1). The state argues that the warrantless entry was justified because the natural dissipation of alcohol in defendant's body is a type of destruction of evidence that establishes an exigent circumstance.

         The Court of Appeals upheld the trial court's denial of defendant's motion to suppress the blood-alcohol evidence. For the reasons that follow, the decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further consideration.

         I. BACKGROUND

         The parties do not dispute the relevant findings of fact that the trial court made during a pretrial suppression hearing. On October 11, 2011, at about 10:15 p.m., officers were dispatched to a single-vehicle crash near defendant's trailer, where he resided with his girlfriend, Wilson-McCullough. Officers arrived shortly after 10:30 p.m. and found a truck disabled in a ditch next to defendant's driveway. Defendant was not there, but one officer, Deputy Lorentz, spoke with Wilson-McCullough, who confirmed that defendant had been driving the truck and suggested that defendant had been drinking earlier in the day. Wilson-McCullough also [361 Or. 784] allowed Lorentz to look through the front door into defendant's trailer to see if defendant was inside. Lorentz did not see defendant from the front door and conveyed his findings to the other officers present. Although the officers could not find defendant, they heard rustling in the brush around the trailer, which they believed to be defendant attempting to evade them.

         While other officers remained at the scene to look for defendant, Lorentz left to speak with the registered owner of the disabled truck, a neighbor named Zimmerman. Zimmerman told Lorentz that he had seen defendant driving the truck erratically around the time of the police dispatch. He also said that defendant appeared slumped over and intoxicated at that time. Lorentz went back to defendant's trailer and informed the other officers of Zimmerman's statements.

         With no luck finding defendant, officers began to leave the scene. One officer, Trooper Spini, remained until about 11:50 p.m., when he left for the Brookings Police Department. He stayed there for about an hour and returned to defendant's residence at about 12:56 a.m. As he drove up, Spini saw defendant and Wilson-McCullough on a porch just outside the trailer. Defendant immediately went into the trailer and did not respond to Spini's subsequent requests for defendant to come out. At around 1:05 a.m., Spini called for assistance from other officers, including Lorentz and officers from the Brookings Police Department, who arrived about ten minutes later.

         After the officers made additional attempts to get defendant to exit voluntarily, Lorentz crawled into the trailer through an open window and unlocked the front door, allowing the other officers in. Defendant had locked himself in a bathroom and initially refused officers' demands that he come out. Defendant came out only when officers began unscrewing the bathroom doorknob and threatened him with a Taser. After defendant opened the bathroom door, officers detected an overwhelming odor of alcohol and observed that defendant's speech was slurred and that his eyes were watery and bloodshot. At that time, around 1:33 a.m., Spini placed defendant under arrest.

         [361 Or. 785] Spini left the scene with defendant for the Curry County Jail at around 2:00 a.m. After arriving at the jail at around 2:23 a.m., defendant made incriminating statements. Spini had assumed that, if he asked defendant for consent to test his BAC, defendant would have refused to provide consent. But, before officers had the chance to ask for consent, defendant volunteered to take a breath test. The breath test showed that defendant, about four hours after he last drove, still had a BAC level of 0.14 percent, which is above the legal limit of 0.08. ORS 813.010(a).

         Defendant was charged with DUII, ORS 813.010, and driving while suspended, ORS 811.182. Before trial, defendant moved to suppress all evidence that the officers obtained following their warrantless entry into his home. At the suppression hearing, Spini testified that one reason that he did not seek a warrant before entering the trailer was because he was concerned about the dissipation of alcohol in defendant's body. Spini understood that alcohol typically dissipates at an average of about 0.015 percent per hour, though he noted that dissipation rates vary from person to person. Spini further stated that it would take about 90 minutes for him to obtain a search warrant, although Lorentz testified that he could do so in about 45 minutes.

         The trial court concluded that the officers developed probable cause to believe that defendant had committed a DUII after Lorentz spoke with Zimmerman-that is, before the officers completed their initial investigation. The trial court also concluded that, based on Spini's testimony, the officers had probable cause to believe that they could still obtain evidence of defendant's alleged DUII by taking a sample of defendant's blood or breath at the time the officers entered defendant's residence. Further, the trial court found that the officers entered the home without a warrant because, among other reasons, "the officers were concerned about the dissipation of alcohol in [] defendant's blood or breath if a blood or breath test was obtained." As a result, the trial court held that exigent circumstances "provide[d] a valid basis for entry into the trailer without a warrant in this case."

         [361 Or. 786] In reaching that result, the trial court rejected defendant's argument that any exigency was the result of improper officer delay. Defendant had argued that the officers could have applied for the warrant during the time between first leaving the scene and subsequently returning to the scene about an hour later. But, according to the trial court, the officers could not have obtained a warrant to search the trailer at that point because they had no reason to believe that he was in the trailer. The trial court instead found that the officers did not reasonably believe that defendant was in the trailer until they returned to the scene at around 1:00 a.m. The trial court found that, from that point on, officers did not unnecessarily delay entering defendant's residence and arresting him. As a result, the trial court denied defendant's motion to suppress.[1]

         Defendant appealed, arguing that the natural dissipation of alcohol does not establish an exigency justifying a warrantless home entry. The state argued, on the other hand, that the exigent circumstances justifying a warrantless home entry may be established without regard to how long it would take the investigating officers to obtain a warrant. Instead, the state contended, the exigency is established when an officer has reason to ...

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