State v. Jordan ( 1980 )

HOWELL, J.

The principal question presented on this appeal is whether a police officer may enter a private dwelling to execute an arrest warrant without obtaining a search warrant.

The facts surrounding the entry and arrest are largely undisputed. Florine Davidson, Sandra Jordan, and defendant Nadine Jordan resided in a house in northeast Portland. Defendant is Sandra Jordan’s sister. On January 15, 1977, the house was approached by two Portland police officers, Charles Ault and Sammy Ray Rosson, who had an outstanding warrant for Sandra Jordan’s arrest. Ault had learned from reliable sources that Sandra was believed to be living at the house and that she was thought to be driving a yellow Pinto automobile. On the evening in question, a yellow Pinto was parked in the driveway of the house. Ault and Rosson called for reinforcements who surrounded the house. The two then went to the front door and were met by Florine Davidson and defendant Nadine Jordan. The officers stated their purpose and asked the women for their names and some identification.

Defendant Nadine Jordan identified herself as "Juanita Adams” but refused to produce any identification. Both women refused to let the police search the residence. The officers returned to their vehicle and ran a record check on Juanita Adams. The name was reported as an alias for Sandra Jordan. Not knowing whether defendant was Sandra Jordan, the officers returned to the house and took her into custody, intending to establish her identity by means of fingerprinting at the police station.

While seated in the police car, Office Ault observed a mug shot of Sandra Jordan and was uncertain that he had the right person. He ordered the other officers to return to the house to see if there was another person there who was actually Sandra Jordan. The officers entered the house without a search warrant and eventually found Sandra hiding in the attic.

Defendant was charged with hindering prosecution, ORS 162.325. Prior to trial, she filed a motion to suppress any evidence seized as a result of the entry into her home. The evidence she sought to suppress was the person of Sandra Jordan. The trial court denied the motion and, following a trial, defendant was convicted. Defendant’s sole assignment of error on appeal is that the trial court should have suppressed the evidence obtained as a result of a search without a search warrant.

The Court of Appeals affirmed defendant’s conviction in an opinion that focused principally on the question of whether the officers had probable cause to believe Sandra Jordan was still in the residence after they had taken defendant into custody. 36 Or App 45, 583 P2d 1161 (1978). The court found that the officers did have such probable cause and that the entry was therefore justified under ORS 133.235(5), which provides:

"In order to make an arrest, a peace officer may enter premises in which he has probable cause to believe the person to be arrested to be present.”

The Court of Appeals’ opinion was written prior to this court’s decisions in State v. Olson, 287 Or 157, 598 P2d 670 (1979), and State v. Peller, 287 Or 255, 598 P2d 684 (1979), in which we held that an entry into a private home to arrest, without an arrest warrant, was justified only if the state showed the existence of exigent circumstances. Neither Olson nor Peller decided whether a search warrant in addition to an arrest warrant is necessary to arrest on private premises. That question is now squarely presented.

I

Defendant contends that the failure of the police to obtain a search warrant to enter her premises resulted in a violation of her statutory and constitutional rights. Before turning to the constitutional question in this case, we first examine Oregon statutory law to determine whether the right claimed by the defendant in this case is in fact protected by legislation. See State v. Spada, 286 Or 305, 594 P2d 815 (1979). ORS 133.535 provides, in part:

"The following are subject to search and seizure under [statutes authorizing search warrants]:

« * * * * *

"(4) A person for whose arrest there is probable cause or who is unlawfully held in concealment.”

Although this statute permits the issuance of a search warrant to an officer seeking to arrest a suspect on private premises, the statute does not purport to require such a warrant. We conclude from this that Oregon statutes do not require an officer to obtain a search warrant prior to entering a private home to arrest.¹

II

We now consider the defendant’s claim that the police conduct in this case violated article I, section 9 of the Oregon Constitution² and the fourth amendment to the United States Constitution.³ Both these constitutional provisions, in substantially identical language, protect against unreasonable searches and seizures.

As background, while the common law recognized that "every man’s house is his castle,” it also held that "no one charged with a crime can have a castle against the King’s or the State’s warrant for his arrest.” Wilgus, Arrest Without a Warrant, 22 Mich L Rev 541, 800-01 (1922); 1 Chitty, Criminal Law 51-59 (1816). A peace officer armed with an arrest warrant was therefore permitted to enter a private dwelling to effect an arrest if the officer had reason to believe the suspect was inside the dwelling, regardless of whether the officer also had a search warrant.⁴

The United States Supreme Court has left unsettled the question whether and under what circumstances an officer may enter private premises to make a warrantless arrest. See United States v. Watson, 423 US 411, 418 n. 6, 96 S Ct 820, 46 LEd 2d 598 (1976); Gerstein v. Pugh, 420 US 103, 113 n. 13, 95 S Ct 854, 43 L Ed2d 54 (1975); Coolidge v. New Hampshire, 403 US 443, 474-81, 91 S Ct 2022, 29 L Ed 2d 564 (1971). This court has held, however, that absent exigent circumstances an arrest warrant is required before a police officer may enter private premises to make an arrest. State v. Peller, supra; State v. Olson, supra. ⁵

When this court decided State v. Olson, supra, we particularly relied on the United States Supreme Court opinion in Coolidge v. New Hampshire, supra, from which we quoted:

"* * * The case of Warden v. Hayden, supra [387 US 294, 87 S Ct 1642, 18 L Ed 2d 782 (1967)], where the Court elaborated a 'hot pursuit’ justification for the police entry into the defendant’s house without a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances. * * *” 403 US at 480-81 (emphasis added).

We also relied on People v. Ramey, 16 Cal 3d 263, 127 Cal Rptr 629, 545 P2d 1333, cert. denied 429 US 929, 97 S Ct 335, 50 L Ed 2d 299 (1976), from which we quoted the following:

" * * * [I]n the absence of a bona fide emergency, or consent to enter, police action in seizing the individual in the home must be preceded by the judicial authorization of an arrest warrant. ”545 P2d at 1340 (emphasis added).

Many federal and state courts have held that a police officer may enter private premises to execute a valid arrest warrant as long as the officer reasonably believes that the subject of the arrest warrant is on the premises. See, e.g, United States v. Woods, 560 F2d 660, 665-66 (5th Cir 1977), cert. denied 435 US 906,98 S Ct 1452, 55 L Ed 2d 497 (1978); United States v. Harper, 550 F2d 610, 613-14 (10th Cir), cert. denied, 434 US 837, 98 S Ct 128, 54 L Ed 2d 99 (1977); United States v. Cravero, 545 F2d 406, on pet. for rehearing, 545 F2d 420 (5th Cir 1976), cert. denied, 430 US 983, 97 S Ct 1679, 52 L Ed2d 377 (1977); United States v. James, 528 F2d 999, 1016-17 (5th Cir), cert. denied, 429 US 959, 97 S Ct 382, 50 L Ed2d 326 (1976); Rice v. Wolff, 513 F2d 1280, 1291-92 (8th Cir 1975), rev’d. on other grounds sub nom. Stone v. Powell, 428 US 465,96 S Ct 3037, 49 L Ed 2d 1067 (1976); United States v. Jones, 475 F2d 723, 729 (5th Cir 1973); Rodriguez v. Jones, 473 F2d 599, 605-06 (5th Cir), cert. denied, 412 US 953, 93 S Ct 3023, 37 L Ed2d 1007 (1973); United States v. Brown, 151 US App DC 365, 369-370,467 F2d 419, 423-24 (DC Cir 1972); United States v. McKinney, 379 F2d 259, 262-63 (6th Cir 1967); United States v. Alexander, 346 F2d 561 (6th Cir 1965), cert. denied, 382 US 993, 86 S Ct 575,15 L Ed2d 480 (1966); State v. Platten, 225 Kan 764, 594 P2d 201 (1979); Nestor v. State, 243 Md 438, 221 A2d 364, 368 (1966); Cook v. State, 35 Md App 430, 371 A2d 433 (1977); State v. Jemison, 14 Ohio St 2d 47, 236 NE2d 538 (1968); State v. Clark, 40 Ohio App 2d 365, 319 NE2d 605 (1974); Commonwealth v. Terebieniec, 268 Pa Super Ct 488, 408 A2d 1120 (1979); State v. McNeal, 251 SE2d 484 (W Va App 1978); People v. Stibal, 56 Ill App 3d 1048, 14 Ill Dec 652, 372 NE2d 931 (1978).

In United States v. Cravero, supra, the court held that "when an officer holds a valid arrest warrant and reasonably believes that its subject is within premises belonging to a third party, he need not obtain a search warrant to enter for the purpose of arresting the suspect.” 545 F2d at 421. Accord, United States v. Woods, supra; United States v. Harper, supra. The Cravero court reasoned that a police officer who has already obtained an arrest warrant — a judicial determination of probable cause to believe that a suspect has committed an offense — may "determine that the suspect is probably within certain premises without an additional trip to the magistrate and without exigent circumstances.” 545 F2d at 421. We agree with the holding in Cravero and the other cases cited above.⁶

Other courts have held that the Fourth Amendment requires police to obtain a search warrant prior to entering private premises to effect an arrest. See United States v. Prescott, 581 F2d 1343, 1350 (9th Cir 1978); Government of Virgin Islands v. Gereau, 502 F2d 914, 928 (3d Cir 1974), cert. denied, 420 US 909, 95 S Ct 829, 42 L Ed2d 839 (1975); State v. Jones, 274 NW2d 273 (Iowa 1979); Laasch v.State, 84 Wis 2d 587, 267 NW2d 278 (1978). We are of the opinion, however, that there is no constitutional requirement that police officers who hold a valid arrest warrant and have probable cause to believe the subject is located on private premises must also obtain a search warrant before they may enter the premises to execute the arrest warrant.⁷

When we held in Olson that the Fourth Amendment applies when police enter private premises to effect an arrest, we essentially held that, absent exigent circumstances, arrests on private premises conducted outside the judicial process are per se unreasonable. See State v. Peller, 287 Or at 260. Cf. Katz v. United States, 389 US 347, 357, 88 S Ct 507,19 L Ed2d 576 (1967). The extent to which a judicial officer must be involved in approving an arrest on private premises, however, involves our consideration of the governmental interests in effective law enforcement. See, e.g., United States v. Watson, supra, 423 US 411, 417; id. at 431-32 (Powell, J., concurring). As the United States Supreme Court has explained,

"Maximum protection of individual rights could be assured by requiring a magistrate’s review of the factual justification prior to any arrest, but such a requirement would constitute an intolerable handicap for legitimate law enforcement.” Gerstein v. Pugh, supra, 420 US at 113.

Judicial scrutiny of probable cause to search every place where the suspect may be located would unduly hamper the police in the performance of their duties. Apprehending a criminal suspect is not the same as searching for evidence or contraband. A suspect will not stay in one place; he will attempt to avoid capture. And this inherent mobility to escape often presents unforeseeable dangers that necessitate swift police action. See, e.g., United States v. McKinney, supra. ⁸ The constitutional requirement of reasonableness does not mandate that we handicap police apprehension efforts by requiring officers to wait at the threshold while the suspect hides or flees or by requiring officers to return for a warrant to search each time the suspect flees to hide in another house or apartment. As one court recently explained, in holding that police with a valid arrest warrant and probable cause to believe the suspect is within may enter private premises to execute the warrant:

"We think this rule sound. On the one hand, common sense dictates that law officers, in possession of a valid arrest warrant, hold authority to take reasonable steps to execute the warrant. * * * A contrary rule [requiring a search warrant] would unduly hamper law officers in performance of their duties. Indeed, it would be anomalous and a senseless restraint upon police to permit them, when they hold a search warrant, to enter a residence by breaking down the door after they hear sounds of escape emanating from inside, but require them, for lack of a search warrant, to stand helplessly at the threshold while a suspect named in an arrest warrant secretes himself about the house or flees. * * * On the other hand, the requirement of probable cause to believe that the suspect is within prevents the police from indiscriminately entering and searching any home where they hope an accused may be. * * Commonwealth v. Terebieniec, supra, 408 A2d at 1126.

We believe that constitutional rights will be protected as long as any arrest on private premises is supported by the judicial authorization of an arrest warrant and the police officer’s probable cause to believe that the arrestee is within the premises. United States v. Cravero, supra; United States v. Brown, supra; United States v. McKinney, supra. The reasonableness of the officer’s judgment is, of course, subject to review. Furthermore, the entry pursuant to an arrest warrant is valid only for the purpose of making the arrest and not for the purpose of conducting a general search. See United States v. Cravero, 545 F2d at 421 n. 2. In the instant case, the only "evidence” seized by the police was Sandra Jordan — the person named in the arrest warrant.

Accordingly, we hold that police officers may enter private premises to make an arrest if they have a valid arrest warrant and probable cause to believe that the subject of the warrant is present on the premises. Neither the fourth amendment to the United States Constitution nor article I, section 9, of the Oregon Constitution requires that police officers also obtain a search warrant.

Ill

The Court of Appeals held that the police officers clearly had probable cause to believe that Sandra Jordan, the person named in the arrest warrant, was on the premises. The defendant does not contend that the police never had probable cause to believe that Sandra Jordan was within the house, but argues that once the police arrested defendant, believing she was Sandra Jordan, "[s]ome additional fact, indicating that defendant might not be Sandra, was necessary to a finding of probable cause.” Assuming this to be the case, we do not agree with defendant’s contention that after her arrest no additional facts had been adduced supporting probable cause to believe Sandra was still in the house. During the suppression hearing, Officer Ault testified that after taking the defendant into custody,

" * * * I then got in the police car and observed a mug shot of Sandra Jordan that we were looking for and was not sure still if the gal we had in custody was the right one. So I advised the other officers to go back up to the house.”

This photographic comparison was sufficient to lead a reasonably prudent person to believe that the defendant was not Sandra Jordan and that Sandra was still on the premises.

The defendant argues that where an arrest warrant exists for a suspect, only one person is the suspect and thus when one person is arrested, whatever probable cause there is to look for the suspect is used up. The fact that there is a warrant for one person’s arrest, however, should make no difference as long as there is, in fact, probable cause for both the first arrest and the subsequent search.

In the present case, the officers had probable cause to believe that Sandra Jordan was in the house, but they did not know for certain which person in the house was Sandra Jordan. They also did not know that the defendant and Sandra Jordan were sisters. Probable cause may justify the arrest of more than one person if circumstances exist that would lead a reasonably prudent person to believe that each suspect could be the person named in the arrest warrant. The defendant’s presence at the house and her use of the name Juanita Adams were circumstances that supported the reasonable belief that defendant was Sandra Jordan. However, the police officer’s uncertainty regarding defendant’s resemblance to the photograph of Sandra Jordan, her sister, supported a reasonable belief that Sandra Jordan was still in the house. The Court of Appeals, therefore, did not err in holding that the police officers had probable cause to enter the defendant’s premises.

Affirmed.

1 This view apparently was shared by the members of the commission that drafted ORS 133.535. See Proposed Oregon Criminal Procedure Code § 132, Comment A (Final Draft and Report 1972). It is also the position taken by the drafters of the ALI Model Code of Pre-Arraignment Procedure, § SS 210.3 and commentary, at 124-25, 506-07 (1975).

2 Article I, section 9, of the Oregon Constitution provides:

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

3 The fourth amendment to the United States Constitution provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

4 According to Professor Wilgus, even an arrest warrant was not considered necessary by most authorities. It was merely necessary that the party making the arrest be acting within his lawful rights. Wilgus, Arrest without a Warrant, 22 Mich L Rev 541, 802-03 (1922). See also i. Landynski, Search and Seizure and the Supreme Court 26-27 (1966). This meant that an officer could enter without any warrant to arrest for a felony if the officer had probable cause to believe the suspect had committed the felony and probable cause to believe the suspect was within the premises to be entered. Cf., United States v. Watson, 423 US 411,418,96 S Ct 820,46 L Ed 2d 598 (1976) (discussing the common law rule and citing numerous authorities).

5 In State v. Chinn, 231 Or 259, 265, 373 P2d 392 (1962), this court held that officers armed with an arrest warrant could enter the suspect’s home whether or not they had obtained a search warrant. The opinion notes that such an entry was permitted "both at common law and by statute * * *.” We did not discuss the constitutional question raised by defendant in the present case.

6 We note that the United States Supreme Court has in dicta approved of the Cravero holding in Dalia v. United States, 441 US 238,99 S Ct 1682, 60 L Ed2d 177 (1979), in which the court hejd that a warrant for electronic surveillance need not include a specific authorization to enter covertly the premises described in the warrant. The Court said:

"* * * Often in executing a warrant the police may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant. For example, police executing an arrest warrant commonly find it necessary to enter the suspect’s home in order to take him into custody, and they thereby impinge on both privacy and the freedom of movement. See, e.g., United States v. Cravero, 545 F.2d 406,421 (CA5 1976) (on petition for rehearing). * * *” 441 US at 257-58.

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We also note that the ALI Model Code of Pre-Arraignment Procedure § 120.6 (1975) permits a law enforcement officer to enter private premises to arrest a person whom he is authorized to arrest if the officer has reasonable cause to believe that the person is present on such premises. The commentators wrote that

" * * * Twenty-five [state] jurisdictions have statutes permitting forcible entries to make any arrest which is otherwise lawful. The statutes in six states authorize forcible entries for purposes of arrest if the arrest is under a warrant or for a felony. The statutes in six states allow forcible entry if the arrest is under a warrant, while in two states the statutes authorize entry to arrest in case of a felony.” Id. at 310 (commentary). (Footnotes omitted.)

See also id. at Appendix XI. The Kansas statute authorizing entry to arrest, K.S.A. 22-2405 (1974), was applied in United States v. Harper, 550 F2d 610 (10th Cir), cert. denied 434 US 837, 98 S Ct 128, 54 L Ed 2d 99 (1977) . The Harper court also relied on the Cravero decision. The Michigan statute authorizing entry to arrest, Mich Comp Law Ann § 764.21 (1948), was applied in United States v. Alexander, 346 F2d 561 (6th Cir 1965), cert. denied 382 US 993, 86 S Ct 575, 15 L Ed 2d 480 (1966).

In addition, several courts have indicated but have not directly held that the police may enter private premises to arrest if they have an arrest warrant. See, e.g., United States v. Houle, 603 F2d 1297,1300 n. 5 (8th Cir 1979); United States v. Calhoun, 542 F2d 1094, 1102 (9th Cir 1976), cert. denied 429 US 1064, 97 S Ct 792, 50 L Ed 2d 781 (1977); Huotari v. Vanderport, 380 F Supp 645, 650 (D Minn 1974); State v. Cook, 115 Ariz 188, 564 P2d 877, 883 (1977) (quoting Ramey); People v. Ramey, 16 Cal 3d 263, 127 Cal Rptr 629, 545 P2d 1333, 1340 (1976) (requiring "the judicial authorization of an arrest warrant”); People v. Moreno, 176 Colo 488, 491 P2d 575 (1971); Commonwealth v. LeBlanc, 373 Mass 478, 367 NE2d 846, 850 (1977); Commonwealth v. Williams, 483 Pa 293, 396 A2d 1177, 1180 (1978) ("police should have obtained an arrest warrant”).

7 The legal commentators are also divided over the question whether a search warrant is necessary prior to the entry of private premises to execute an arrest warrant. See, e.g. 2 LaFave, Search and Seizure 378-86 (1978); Rotenberg & Tanzer, Searching for the Person to be Seized, 35 Ohio St L J 56, 65-71 (1974); Note, Warrantless Entry to Arrest: A Practical Solution to a Fourth Amendment Problem, 1978 U 111 Law Forum 655,673-76; Comment, The Constitutionality of Warrantless Home Arrests, 78 Colum L Rev 1550, 1566-67 (1978); Comment, Forcible Entry to Effect a Warrantless Arrest — The Eroding Protection of the Castle, 82 Dick L R167 (1977); Comment, Watson and Santana: Death Knell for Arrest Warrants?, 28 Syracuse L Rev 787 (1977); Note, The Neglected Fourth Amendment Problem in Arrest Entries, 23 Stan L Rev 995 (1971).

8 The McKinney court reasoned that the issuance of an arrest warrant is itself an exceptional circumstance obviating the need for a search warrant. The court said:

" * * * An arrest warrant is validly issued only when a magistrate is convinced that there is probable cause to believe that the named party has committed an offense. This determination, together with the inherent mobility of the suspect, would justify a search for the suspect provided the authorities reasonably believe he could be found on the premises searched. * * *” 379 F2d 263