County Circuit Court CR1412315 Kathie F. Steele, Judge.
and submitted December 21, 2016
P. Seltzer, Deputy Public Defender, argued the cause for
appellant. With her on the brief was Ernest G. Lannet, Chief
Defender, Offce of Public Defense Services.
P. Robertson, Assistant Attorney General, argued the cause
for respondent. With her on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
DeVore, Presiding Judge, and Garrett, Judge, and James,
Or. 400] Case Summary:
appeals a judgment convicting him of harassment, ORS 166.065,
and interference with making a report, ORS 165.572. He
assigns error to the denial of his motion to suppress
evidence obtained after police entered his home without a
warrant. Defendant argues that the trial court erred when it
concluded that the warrantless entry was justified by the
emergency aid exception to the warrant requirement because
officers lacked a subjective belief that the victim had
suffered a "serious physical injury or harm"
requiring immediate assistance. Defendant further argues that
he did not consent to the warrantless entry because the
officer's statement-"I'm going to go in and
check on [the victim]"-was not a request for consent and
did not give defendant an opportunity to deny officers entry
into the home. Held: The trial court erred in
denying defendant's motion to suppress. The emergency aid
exception requires more than a speculative concern that
someone may need assistance; rather, police must actually
have a subjective belief that a person is seriously injured
and in need of immediate assistance. The record reveals that
neither officer testified to having an actual belief that the
victim was seriously injured and in need of immediate
assistance. The officers were, instead, acting out of a
concern to find out whether the victim was injured, and a
belief that they were required to do so in situations
involving reported domestic violence. Furthermore, defendant
did not consent to the warrantless entry because the
officer's declaratory statement was not a request for
consent to enter the house and invited no response other than
Or. 401] GARRETT, J.
was convicted after a bench trial of harassment, ORS 166.065,
and interference with making a report, ORS 165.572. He
appeals the denial of his motion to suppress evidence
obtained after police entered his home without a warrant. We
conclude that the warrantless entry into defendant's home
was not justified by the emergency aid exception to the
warrant requirement. We also reject the state's
alternative argument that defendant consented to the entry.
Accordingly, we conclude that the trial court erred in
denying defendant's motion to suppress, and reverse and
remand the judgment.
reviewing the denial of a motion to suppress evidence, we
review the facts on which the denial was based for any
evidence, and the trial court's ruling based on those
facts for legal error. State v. Ehly, 317 Or. 66,
75, 854 P.2d 421 (1993); see also State v. Freunal,
102 Or.App. 647, 651, 796 P.2d 656 (1990) ("We are not
bound by the trial court's conclusions, if the historical
facts do not meet the constitutional standards for a valid
consent to search."). Where findings of fact are not
made on all issues and there is evidence from which such
facts could be decided more than one way, we presume that the
facts were decided in a manner consistent with the trial
court's ultimate conclusion. Ehly, 317 Or at 75.
We state the facts in accordance with that standard.
state's evidence at the hearing on the motion to suppress
consisted of the testimony of Officers Burnum and Hill, who
responded to a 9-1-1 call from the victim, defendant's
then-girlfriend, reporting a domestic disturbance. The
officers testified that they were informed by dispatch that
the victim had been attacked by defendant; that at one point,
defendant had taken her phone to prevent her from calling
9-1-1; that defendant had broken down the door to a bathroom
to "get at her"; and that there was a gun in a safe
somewhere inside the home. The officers were also told that
the victim was upstairs and "felt safe" there, and
that defendant was outside waiting for police to arrive.
Hill, and a third officer arrived and found defendant sitting
on the front porch of the house. Both [287 Or. 402] Burnum
and Hill testified that defendant was calm and compliant and
that the encounter was "casual." The officers
determined that the house belonged to defendant and that the
victim was inside with her dog. Hill then told defendant,
"I'm going to go in and check on [the victim]."
Defendant said something like, "Go on ahead. She's
inside." Neither officer recalled asking for
defendant's consent to enter the house, but Hill believed
that defendant had consented to the entry through his reply.
When questioned at the suppression hearing regarding the
basis for entering without a warrant, Burnum testified that
the entry was necessary "to investigate if there was a
crime, in fact, that happened, " to see "if anybody
was injured inside, " and because, under the
circumstances, there was "a person [who] was potentially
injured." Additionally, Hill testified that it was her
understanding that, pursuant to the community caretaker
function, police are "mandated" to enter the home
in domestic violence situations whenever "there may be
somebody injured or hurt inside" to ensure the safety of
the individual. Thus, according to Hill, a warrantless entry
into defendant's home was necessary "to make sure
that [the victim] was okay."
and the other officer entered the house to locate the victim,
while Burnum continued interviewing defendant. The victim
showed the officers the damaged door to the upstairs
bathroom. She was upset and her right ear and side of her
face were red. While inside, the officers also took photos of
the bathroom door and of the victim's injuries, which
were later admitted into evidence at trial. ...