State v. Apodaca , 85 Or. App. 128 ( 1987 )

735 P.2d 1264 (1987) 85 Or.App. 128

STATE of Oregon, Respondent,
v.
Nicholas Victor APODACA, Appellant.

82-3621-C-3; CA A39294.

Court of Appeals of Oregon.

Argued and Submitted December 15, 1986. Decided April 22, 1987.

G. Philip Arnold, Ashland, argued the cause for appellant. With him on the brief was Drescher and Arnold, Ashland.

Terry Ann Leggert, Asst. Atty. Gen., Salem argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

VAN HOOMISSEN, Judge.

Defendant appeals his conviction for possession of a controlled substance. ORS 475.992. He contends that the trial court erred in denying his motion to suppress evidence seized by the police during a warrantless search of the house in which he was arrested. The dispositive issue is whether the police lawfully entered the house. We conclude that they did not. Therefore, we reverse.

About 2:30 a.m., Trooper McNielly investigated a one car accident on Lampman Road near Gold Hill. The car had rolled over and was seriously damaged. No one was in or around it. It was registered to defendant at an address on Ramsey Road in Gold Hill. Inside the car, McNielly found an envelope addressed to "M. Apodaca," 2126 Lampman Road, Gold Hill. That address was about a mile from the accident scene. McNielly learned from people in that area that defendant was known as "Manuel."

McNielly met Trooper Lacy at the Lampman Road address. They found that the front door screen was broken and that the front door was open. Standing outside, they could see marijuana plants hanging from the ceiling of the bedroom. After knocking several times and receiving no response, they walked around the house and looked through the bedroom window. They knocked on the window but received no response. After knocking on the front door several more times, they entered the house. They found defendant asleep in the back, where the marijuana plants had been seen. They arrested him for possession of a controlled substance and seized the plants.

Defendant moved to suppress the marijuana.^[1] At the suppression hearing, McNielly testified:

"[W]e knew we had marijuana in there, and we were debating whether we should enter or wait for a warrant, but there were other factors to consider, considering that we may have an accident victim, an injured accident victim in there, and we may also have a drunk driver, in which case as time went by that the evidence of that drunk driver we were losing with the blood alcohol, and we may also have a burglary."

The state argued that the entry was permissible, because (1) the police saw marijuana inside the house, (2) there may have been a seriously injured person inside the house who urgently needed medical attention, (3) there may have been a drunk driver inside the house and the entry was necessary to preserve evidence of the driver's blood-alcohol level before it dissipated and (4) the police believed that a burglary was being committed or had been committed. The trial court denied defendant's motion, stating only:

"Under the circumstances of this case, I am of the view that the officer was lawfully on the premises. Being there lawfully, he did observe the marijuana from a lawful vantage point. Again, under the peculiar facts of this case, the conduct was reasonable. The motion to suppress is denied * * *."^[2]

Defendant contends that that was error.

On appeal, the state has abandoned its arguments that a warrantless entry was permissible, either because the police saw marijuana inside the house^[3] or because there may have been a drunk driver inside and the entry was necessary to preserve evidence of the driver's blood-alcohol level before it dissipated.^[4] Nonetheless, because those arguments were made in the trial court and may have been relied on by the court, we have considered them. See State v. Nash, 41 Or. App. 789, 793, 598 P.2d 1297, rev. den. 288 Or. 141 (1979). We conclude that, on these facts, neither argument has merit.

The state first contends that the entry was permissible under the emergency doctrine exception to the warrant requirement.^[5] It argues that there may have been a seriously injured person inside the house who urgently needed medical attention. Alternatively, it argues that there was an emergency, because the police believed that a burglary was being committed or had been committed.

In State v. Miller, 300 Or. 203, 229, 709 P.2d 225 (1985), cert. den., ___ U.S. ___, 106 S. Ct. 1793, 90 L. Ed. 2d 339 (1986), the Supreme Court stated:

"The emergency doctrine is a carefully and narrowly drawn exception to the warrant requirement. When the premises is a dwelling, the state must make a strong showing that exceptional emergency circumstances truly existed. Vale v. Louisiana, 399 U.S. 30, 34, 90 S. Ct. 1969 [1971], 26 L. Ed. 2d 409 (1970)."

In State v. Jones, supra, we explained:

"The emergency doctrine is founded upon the actions of police officers which are considered reasonable under the circumstances that faced the officer at the time of entry. The element of reasonableness to enter the premises is supplied by the compelling need to assist persons in need. * * * The inquiry is whether the facts available to the officer would lead a prudent and reasonable officer to see a need for immediate action to protect life or property. Wayne v. United States, 318 F2d 205 (DC Cir 1963). When faced with what he reasonably and in good faith believes to be an emergency, an officer's action should not be reviewed with severe judicial scrutiny in light of a hindsight analysis of the evidence. Even if the officer's conclusion that an emergency situation existed is ultimately determined to be erroneous, his actions should be upheld if the circumstances, as they appeared at the time of entry, would lead a prudent and reasonable officer to conclude immediate action was necessary. An officer facing a perceived emergency must make a hasty decision. He is not afforded the luxury of calm detached deliberation as are the judges reviewing his conduct." 45 Or. App. at 620, 608 P.2d 1220. (Emphasis supplied.)

See United States v. Robinson, 533 F.2d 578, 580 (D.C. Cir.), cert. denied, 424 U.S. 956, 96 S. Ct. 1432, 47 L. Ed. 2d 362 (1976).

The police knew that there had been a single car accident resulting in serious damage to the car. They found a letter in the car addressed to a person with the same surname as that of the car's registered owner, although at a different address. On arriving at that address about an hour later, they found that the front door screen was broken and the front door was open. Those facts do not constitute a "strong showing" that a seriously injured person might be inside the house urgently needing medical attention. State v. Miller, supra; see United States v. Spetz, 721 F.2d 1457 (9th Cir.1983). Further, a broken front door screen and an open front door would not lead a prudent and reasonable officer to believe that a burglary was being committed or had been committed. See Collier v. City of Portland, 57 Or. App. 341, 345-46, 644 P.2d 1139 (1982); State v. Schrag, 21 Or. App. 655, 536 P.2d 461 (1975). Thus, the state failed to make a "strong showing" that there was a need for immediate police action to protect property. State v. Miller, supra, 300 Or. at 229, 709 P.2d 225. We conclude that the state failed to show that the warrantless entry was permissible under the emergency doctrine exception.

The state next contends that the police entered the house in the exercise of their "community caretaking" function.^[6] As a matter of law, the evidence in this case would not support a warrantless entry on that basis.

Because the warrantless entry of the house was unlawful, the subsequent seizure of the marijuana was unlawful. Therefore, the trial court erred in denying defendant's motion to suppress.

Reversed and remanded.

NOTES

[1] The record indicates that defendant did not live at the 2126 Lampman Road address, but lived about three houses away. At trial, the state did not raise the issue of defendant's standing to challenge the lawfulness of the officers' entry. See ORS 133.683.

[2] The trial court did not explain which of the state's arguments it found persuasive. Our review would be facilitated if trial courts would explain the bases of their decisions. That is particularly so when, as here, the state advanced multiple arguments. See State v. Johnson/Imel, 16 Or. App. 560, 519 P.2d 1053 (1974).

[3] Seeing marijuana from outside the house may have given the troopers probable cause to obtain a search warrant. See State v. Matsen, 287 Or. 581, 601 P.2d 784 (1979); State v. Peller, 287 Or. 255, 598 P.2d 684 (1979); State v. Olson, 287 Or. 157, 598 P.2d 670 (1979); see also State v. Lee, 120 Or. 643, 650-651, 253 P. 533 (1927).

[4] See Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984).

[5] See Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); State v. Davis, 295 Or. 227, 238, 666 P.2d 802 (1983); State v. Jones, 45 Or. App. 617, 620, 608 P.2d 1220, rev. den., 289 Or. 337 (1980); State v. Frink, 42 Or. App. 171, 600 P.2d 456 (1979); State v. Plant, 28 Or. App. 771, 773, 561 P.2d 647 (1977); State v. Corbin, 15 Or. App. 536, 516 P.2d 1314 (1973), rev. den. (1974); see also, LaFave, Search and Seizure, (2nd ed) (1987) § 6.6(a), (b).

[6] See Cady v. Dombroski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706 (1973); United States v. Miller, 589 F.2d 1117, 1125 (1st Cir.1978), cert. den. 440 U.S. 958, 99 S. Ct. 1499, 59 L. Ed. 2d 771 (1979); State v. Perry, 298 Or. 21, 26, 688 P.2d 827 (1984); State v. Atkinson, 298 Or. 1, 9 n. 4, 688 P.2d 832 (1984); State v. Newman, 292 Or. 216, 637 P.2d 143 (1981), cert. den., 457 U.S. 1111, 102 S. Ct. 2915, 73 L. Ed. 2d 1321 (1982); State v. Walker, 135 Or. 680, 296 P. 850 (1931); State v. Okeke, 82 Or. App. 393, 728 P.2d 872 (1986), rev. allowed, 303 Or. 261, 735 P.2d 1224 (1987); State v. Rounds, 73 Or. App. 148, 698 P.2d 71, rev. den., 299 Or. 663, 704 P.2d 514 (1985); State v. Elliott, 6 Or. App. 249, 486 P.2d 1296 (1971); See also, LaFave, supra, § 6.6(c).