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State v. Ritz

Court of Appeals of Oregon

May 9, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
RANDALL RAY RITZ, Defendant-Appellant.

          Submitted on remand September 14, 2017.

          Curry County Circuit Court 11CR1068

         On remand from the Oregon Supreme Court, State v. Ritz, 361 Or. 781, 399 P.3d 421 (2017). Jesse C. Margolis, Judge.

          Peter Gartlan, Chief Defender, and Jonah Morningstar, Deputy Public Defender, Office of Public Defense Services, fled the opening brief for appellant. On the supplemental brief were Ernest G. Lannet, Chief Defender, and Anne Fujita Munsey, Deputy Public Defender.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General fled the answering brief for respondent. On the supplemental brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General.

          Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary:

         This appeal is on remand from the Supreme Court, which reversed the decision of the Court of Appeals in State v. Ritz, 270 Or.App. 88, 347 P.3d 1052 (2015) (Ritz I), rev'd and rem'd, 361 Or. 781, 399 P.3d 421 (2017) (Ritz II). In Ritz I, the court affirmed defendant's conviction for driving under the influence of intoxicants, ORS 813.010, and driving while suspended, ORS 811.182, holding that the trial court did not err in denying defendant's motion to suppress because the dissipation of defendant's blood alcohol content was an exigency that justified police officers' warrantless entry into defendant's home. In Ritz II, the Supreme [291 Or.App. 661] Court held that the officers' warrantless entry was not justified on that basis and remanded for the Court of Appeals to consider other asserted justifications. On remand, the state argues that, because the officers were in "hot pursuit" of defendant, exigent circumstances justified the officers' warrantless entry. Held: The trial court erred in denying defendant's motion to suppress because the officers' "hot pursuit" of defendant did not constitute an exigency. The record did not support an objectively reasonable belief on the officers' part that defendant would attempt to escape because police officers had surrounded defendant's home and defendant had shown only an intent to remain in his home and refuse to cooperate.

         Reversed and remanded.

         [291 Or.App. 662] GARRETT, J.

         This case is before us on remand from the Supreme Court, which reversed our decision in State v. Ritz, 270 Or.App. 88, 347 P.3d 1052 (2015) (Ritz I), rev'd and rem'd, 361 Or. 781, 399 P.3d 421 (2017) (Ritz II). In Ritz I, we affirmed defendant's conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and driving while suspended, ORS 811.182. Id. at 101. In holding that the police did not violate defendant's constitutional rights when they forcibly entered his home without a warrant, we concluded that the officers' reasonable belief that evidence of defendant's blood alcohol content (BAC) would dissipate before the officers could obtain a warrant constituted an exigency justifying the entry. Id. at 98-99. The Supreme Court reversed, holding that the dissipation of defendant's BAC did not constitute an exigency under the circumstances. Ritz II, 361 Or. at 799. On remand, the issue is whether the warrantless entry was nevertheless justified by other exigent circumstances on which the trial court relied. For the reasons explained below, we conclude that it was not. Accordingly, we reverse and remand to the trial court for further proceedings.

         When reviewing a denial of a motion to suppress, we are bound by the facts found by the trial court that are supported by evidence in the record. State v. Marshall, 254 Or.App. 419, 421, 295 P.3d 128 (2013). Whether those facts describe circumstances that justify a warrantless search is a question of law. State v. Dahl, 323 Or. 199, 205, 915 P.2d 979 (1996). In accordance with that standard, we recite the facts and pertinent procedural history from Ritz I, including additional undisputed facts that are relevant to our decision on remand:

"At approximately 10:15 p.m., police received a dispatch report that a man and a woman were fighting in a driveway near a vehicle that had crashed into a ditch. At approximately 10:30 p.m., Detective McCourt of the Brookings Police Department arrived at the scene. Deputy Lorentz of the Curry County Sheriffs Office also arrived shortly after. Police observed a white truck in a ditch in close proximity to a driveway. A woman, Wilson-McCullough, was at the scene. Her statements to Lorentz established that she [291 Or.App. 663] lived at the residence with defendant, who had driven the truck and had been drinking that day. Wilson-McCullough accompanied Lorentz up the driveway to the residence, a small trailer, to look for defendant. Wilson-McCullough opened the door, and Lorentz looked through the door. Lorentz could see the whole trailer through the door and did not see defendant. Lorentz heard what sounded like someone running through nearby bushes, but he could not locate anyone there, either."

270 Or.App. at 89. McCourt and Lorentz left, and Lorentz drove to the crash site, where State Trooper Spini had also arrived. ...


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