State v. Bost , 114 Or. App. 519 ( 1992 )

BUTTLER, J.

Defendants are brothers. Glen was indicted for manufacture of a controlled substance, and Dennis was charged with manufacture and possession of controlled substances. The cases were consolidated in the trial court and on appeal. The trial court granted both defendants’ motions to suppress evidence seized pursuant to a search warrant on the ground that the executing officers violated ORS 133.575(2):

“The executing officer shall, before entering the premises, give appropriate notice of the identity, authority and purpose of the officer to the person to be searched, or to the person in apparent control of the premises to be searched, as the case maybe.”

The state appeals, and we affirm.

Police officers from the State Police, Jackson County Sheriffs Office, Federal Department of Drug Enforcement and JACNET went to the premises described in the warrant to execute a search warrant for drugs. The premises consisted of a main residence occupied by Glen and his mother, Roletta. Behind the main residence was a travel trailer with a connected room that was occupied as a residence by Dennis.

Although there is some conflict in the evidence, we take the facts that are consistent with the trial court’s findings and conclusions. Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). The dissent refuses to do that and views the evidence in the light most favorable to the state. The officers arrived at the premises at about 8:00 a.m. Three police officers ran onto the porch of the main house, from where they were able to see Glen and his mother sitting at the kitchen table eating breakfast and talking. The two looked at the police. The police announced their identity and that they had a search warrant. Roletta testified that she got up and moved to the door to open it and that she had her hand on the doorknob as the police kicked the door in, breaking her thumb. One officer testified that he saw Glen and his mother get up, but he felt “it was taking a considerable period of time.” Another officer testified that they parked 7 to 10 feet from the front door and ran to the door and started smashing it in within 15 or 30 seconds.

There was evidence concerning the entry into Dennis’ residence that one officer looked into the trailer and “realized that it could be a residence.” He did not testify that he was apprehensive about entering. A female friend of Dennis’ was asleep in the trailer when she heard the police announce their presence and purpose. According to her, it was no longer than 2 seconds later that the police burst into the trailer, where Dennis was asleep.

The trial court made these findings:

“3) At the time the officers arrived at the premises to execute the search warrant they announced their presence as ‘officers with a search warrant’ at the front door of the main residence, but did not allow any adequate time in which the occupants of the residence, specifically GLEN BOST and his mother, Roletta Bost, could respond to the front door. The officers kicked in the front door before either GLEN BOST or Roletta Bost could open it for them.

“4) Prior to the entry of the main residence the officers saw no activity within the premises indicating an effort by the occupants to dispose of evidence^] rather, they observed the occupants inside and the occupants, so far as the officers could tell, were not doing any specific thing.

“5) The residence of DENNIS BOST was similarly entered by the officers who announced their presence and who kicked open the door without allowing any sufficient time in which the occupants could respond. At the time the officers announced their presence and purpose they were not aware whether anyone was or was not inside the residence, but were aware only that the travel trailer and attached building was furnished and appeared as though it could be a residence of some person.

“6) The Court finds nothing in the evidence to suggest that the officers were concerned regarding their safety; that evidence was being destroyed; or any other reason to kick in the doors of the two residences.”

It concluded that the evidence, including statements made by Dennis, “should all be suppressed for the reason that the forced entry of both residences was an aggravated violation of the ‘knock and announce’ requirements of the law.”

The Oregon Supreme Court has recognized that one purpose of the knock and announce rule is to protect householders’ right to privacy; the “appropriate” announcement lets the occupants know who desires to enter, why he desires to enter and allows a few seconds to prepare for his entry. State v. Valentine/Darroch, 264 Or 54, 60, 504 P2d 84 (1972), cert den 412 US 948 (1973). That privacy interest has been recognized most recently in State v. Ford, 310 Or 623, 631, 801 P2d 754 (1990). The appropriateness of the notice in terms of allowing the occupants time to respond to the announcement is a question of fact and depends on the circumstances. Here, the trial court found that the notice was not “appropriate,” because the officers did not allow adequate time for defendants to respond. The evidence supports that finding, and we are bound by it. Ball v. Gladden, supra.

There are, of course, exceptions to the rule, as pointed out in State v. Ford, supra, in which the court held that

“compliance with the ‘knock and announce’ requirements of ORS 133.235(6) is excused if specific and articulable facts known at the time of entiy, taken together with rational inferences that may be drawn from those facts, would lead a reasonable person to believe that compliance would create a risk to the entering officers’ safety.” 310 Or at 637.

The burden is on the state to prove by a preponderance of the evidence that the police were justified in departing from the statutory notice requirements before breaking down a door of a defendant’s residence. State v. Ford, supra, 310 Or at 638. Here, the trial court found “nothing in the evidence to suggest that the officers were concerned regarding their safety; that evidence was being destroyed; or any other reason to kick in the doors of the two residences. ’ ’ That finding is also supported by the evidence.

The apparent rationale of the dissent is that the “knock and announce” rule is satisfied so long as the police announce their identity, authority and purpose, regardless of whether they wait for the occupants to respond and regardless of whether they articulate specific facts known at the time of entry to lead them, as reasonable persons, to believe that waiting would create a risk to entering officers’ safety. In other words, the police may simply announce and then break down the door. We disagree. Although there is a separate “knock and announce” statute relating to arrests, ORS 133.235(5) and (6), the statutes are treated as imposing the same requirements. See State v. Ford, supra. ORS 133.235(6) provides:

“If after giving notice of the officer’s identity, authority and purpose, the officer is not admitted, the officer may enter the premises, and by a breaking, if necessary.”

If the officers may only break in if necessary, after making their announcement, something more than announcing is required. ORS 133.575(2) provides that requirement — that the announcement must give “appropriate notice,” that is, allow a reasonable time for the occupants to let them in, in the absence of an exception to the requirement. Here, the trial court found that the evidence did not support any exception.

The dissent’s reliance on State v. Arce, 83 Or App 185, 730 P2d 1260 (1986), rev den 303 Or 332 (1987), is puzzling. The state had appealed the suppression of evidence obtained in a search of the defendant’s residence. The police did not comply with the “knock and announce” statute, because the warrant excused that requirement. We held that the magistrate did not have authority to excuse the statutory mandate, but that that violation alone did not require suppression. However, we affirmed the suppression, because there was evidence from which the trial court could have found the evidence insufficient to support the state’s burden to prove that the police reasonably believed that the defendant’s criminal, history represented a danger to them or others.

Here, too, the trial court’s findings are supported by the evidence, and its findings support its conclusion that there was a violation of the statute and that, as in Arce, the state had failed to sustain its burden to justify the violation. Those findings and conclusions support its conclusion that the violation was an aggravated one. Given those findings and conclusions, the forced entry violated defendants’ rights under the Fourth Amendment. See Ker v. California, 374 US 23, 83 S Ct 1623, 10 L Ed 2d 726 (1963).

Affirmed.