State v. RYCRAFT , 217 Or. App. 392 ( 2007 )

174 P.3d 1116 (2007) 217 Or. App. 392

STATE of Oregon, Plaintiff-Respondent,
v.
Justin Jonathan RYCRAFT, Defendant-Appellant.

051395FE; A130573.

Court of Appeals of Oregon.

Submitted on Record and Briefs November 2, 2007. Decided December 26, 2007.

Ingrid Swenson, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Jamesa J. Drake, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Cecil A. Reniche-Smith, Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

PER CURIAM.

Defendant appeals a judgment of conviction for delivery of a controlled substance. Former ORS 475.992 (2003). He assigns error to the denial of his motion to suppress evidence obtained when a police officer entered into defendant's backyard without a warrant. The trial court denied the motion on the ground that the warrantless search was justified by the existence of exigent circumstances, given the officer's concern that the evidence might be easily destroyed. Defendant contends on appeal that the trial court erred in concluding that exigent circumstances existed, because the mere possibility that evidence could be destroyed is not sufficient. The state concedes that the trial court erred in denying the motion to suppress. We agree that the trial court erred.

Reversed and remanded.