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State v. Perrott

Court of Appeals of Oregon

November 15, 2017

STATE OF OREGON, Plaintiff-Appellant,
v.
JOSEPH ABRAM PERROTT, Defendant-Respondent.

          Argued and submitted June 21, 2016.

         Lane County Circuit Court 201409428; Charles M. Zennaché, Judge.

          David B. Thompson, Assistant Attorney General, argued the cause for appellant. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          David A. Hill argued the cause and fled the brief for respondent.

          Before DeVore, Presiding Judge, and James, Judge, and Duncan, Judge pro tempore. [*]

         Affirmed.

         Case Summary:

         The state appeals the trial court's order granting defendant's motion to suppress evidence obtained as a result of an officer's warrantless entry onto defendant's property. The state argues that the trial court erred when it concluded that the state had failed to satisfy the requirements of the exigent circumstances exception to the warrant requirement of Article I, section 9, of the Oregon Constitution. The trial court determined that the state had failed to meet its burden to prove that an exigency was created by the dissipation of alcohol in defendant's blood, because there was no evidence of the rate of dissipation. Held: The trial court did not err in concluding that the state had failed to meet its burden of proving exigency. The state had the burden to prove that, at the time the officer entered the property, he reasonably believed that the evidence he sought was at risk of complete dissipation in the time it would take to get a warrant. The only evidence in the record concerning dissipation, however, was the officer's testimony that "[a]lcohol dissipates from the blood."

         [288 Or.App. 838] DUNCAN, J. PRO TEMPORE

         The state appeals a trial court order suppressing evidence. ORS 138.060(1)(c). Defendant moved to suppress evidence obtained after a police officer entered defendant's property without a warrant. In response, the state argued, as relevant here, that, due to an exigency created by the dissipation of alcohol in the defendant's blood, the warrantless entry was justified by the exigent circumstances exception to the warrant requirement of Article I, section 9, of the Oregon Constitution.[1] After determining that the state had failed to meet its burden of proving that exigency, the trial court granted defendant's motion. On appeal, the state assigns error to that ruling.[2] We affirm.

         We review the trial court's ruling on a motion to suppress for errors of law, and are bound by the trial court's express and implicit findings of fact if there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). While looking for a car that had been involved in driving-related offenses, an officer made observations from outside defendant's fenced and gated property that provided him with probable cause to believe that defendant had been driving while under the influence of intoxicants (DUII). Moments after the officer made those observations, he entered the property. The officer thought it would take hours to get a warrant to enter the property, and among the officer's concerns at the time was his knowledge that "[a]lcohol dissipates from the blood [.]" That was the only evidence in the record concerning alcohol dissipation.

         After a pretrial hearing, the trial court ruled on defendant's motion, making express findings of fact and [288 Or.App. 839] conclusions of law. It determined that, before the officer entered defendant's property, he had subjective and objective probable cause to believe that the car he observed inside was the one he was looking for, that defendant had been driving that car, and that he had been driving while impaired. The trial court also found, based on testimony from the officer and another, that it likely would have taken two to four hours to get a warrant to enter the premises. The trial court concluded, however, that the state had failed to establish exigent circumstances, because it had not presented evidence of the time it would take for the evidence to be lost:

"[T]hat is where the state, I think, has failed to meet its burden, to show that the officer was required to do what he did at that point in time. There was no evidence about dissipation or dissipation rates that the court could conclude.
"I mean I understand there's some case law and I am familiar as a matter of just practice that inhalants dissipate rather quickly and alcohol dissipates at a steady rate and there's even case law in which you could sort of recognize as that but the United States Supreme Court has made it clear that ...

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