Submitted on remand September 14, 2017.
County Circuit Court 11CR1068
remand from the Oregon Supreme Court, State v. Ritz,
361 Or. 781, 399 P.3d 421 (2017). Jesse C. Margolis, Judge.
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
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
Ortega, Presiding Judge, and DeVore, Judge, and Garrett,
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.
Or.App. 662] GARRETT, J.
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.
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,
270 Or.App. at 89. McCourt and Lorentz left, and Lorentz
drove to the crash site, where State Trooper Spini had also