and submitted January 12, 2016
review from the Court of Appeals, CC 11CR1068; CA
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.
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.
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. [**]
Or. 782] Case Summary:
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.
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.
decision of the Court of Appeals is reversed, and the case is
remanded to the Court of Appeals for further consideration.
Or. 783] BALDWIN, S. J.
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.
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
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.
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.
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.
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
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.
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).
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.
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."
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
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 ...