State v. Ritz , 361 Or. 781 ( 2017 )

No. 44 August 10, 2017 781
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
RANDALL RAY RITZ,
Respondent on Review.
(CC 11CR1068; CA A152111; SC S063292)
On review from the Court of Appeals.*
Argued and submitted January 12, 2016.
Paul L. Smith, Deputy Solicitor General, Salem, argued
the cause and filed the briefs for petitioner on review. Also
on the briefs was Ellen F. Rosenblum, Attorney General.
Anne Fujita Munsey, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
Also on the brief was Ernest G. Lannet, Chief Defender,
Office of Public Defense Services.
Before Balmer, Chief Justice, and Kistler, Walters, and
Landau, Justices, and Brewer and Baldwin, Senior Justices
pro tempore, and Tookey, Judge of the Court of Appeals,
Justice pro tempore.**
BALDWIN, S. J.
The decision of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
consideration.
______________
**  On appeal from Curry County Circuit Court, Jesse C. Margolis, Judge.
270 Or App 88, 347 P3d 1052 (2015).
**  Nakamoto, Flynn, and Duncan, JJ., did not participate in the consider-
ation or decision of this case.
782 State v. Ritz
Case Summary: Defendant moved to suppress evidence that police officers
obtained after entering and searching defendant’s home without a warrant. The
trial court denied the motion after finding, among other reasons, that the natu-
ral dissipation of blood-alcohol evidence in defendant’s body established exigent
circumstances sufficient to justify the warrantless search. The Court of Appeals
affirmed. Held: The state failed to prove that the police officers faced exigent
circumstances, because the state failed to establish that obtaining a warrant
before entering defendant’s home would have delayed the police officers’ efforts to
preserve defendant’s blood-alcohol evidence.
The decision of the Court of Appeals is reversed, and the case is remanded to
the Court of Appeals for further consideration.
Cite as 361 Or 781 (2017) 783
BALDWIN, S. J.
The parties in this case raise the issue of whether
the natural dissipation of alcohol in a suspect’s body creates
such an emergency that police officers may enter a suspect’s
home without a warrant in order to secure the suspect’s
blood-alcohol evidence. Article I, section 9, of the Oregon
Constitution and the Fourth and Fourteenth Amendments
to the United States Constitution prohibit unreasonable
searches and generally treat warrantless searches as per se
unreasonable. The warrant requirement, however, is subject
to exceptions. One exception is for exigent circumstances,
which include circumstances requiring officers to act quickly
to prevent the destruction of evidence.
In this case, police officers entered the home of
defendant, Ritz, without a warrant, to secure evidence of
his blood-alcohol concentration (BAC) after having probable
cause to believe that he had been driving under the influ-
ence of intoxicants (DUII), a misdemeanor offense. ORS
813.010(1). The state argues that the warrantless entry was
justified because the natural dissipation of alcohol in defen-
dant’s body is a type of destruction of evidence that estab-
lishes an exigent circumstance.
The Court of Appeals upheld the trial court’s denial
of defendant’s motion to suppress the blood-alcohol evidence.
For the reasons that follow, the decision of the Court of
Appeals is reversed, and the case is remanded to the Court
of Appeals for further consideration.
I. BACKGROUND
The parties do not dispute the relevant findings of
fact that the trial court made during a pretrial suppression
hearing. On October 11, 2011, at about 10:15 p.m., officers were
dispatched to a single-vehicle crash near defendant’s trailer,
where he resided with his girlfriend, Wilson-McCullough.
Officers arrived shortly after 10:30 p.m. and found a truck
disabled in a ditch next to defendant’s driveway. Defendant
was not there, but one officer, Deputy Lorentz, spoke with
Wilson-McCullough, who confirmed that defendant had
been driving the truck and suggested that defendant had
been drinking earlier in the day. Wilson-McCullough also
784 State v. Ritz
allowed Lorentz to look through the front door into defen-
dant’s trailer to see if defendant was inside. Lorentz did not
see defendant from the front door and conveyed his findings
to the other officers present. Although the officers could not
find defendant, they heard rustling in the brush around the
trailer, which they believed to be defendant attempting to
evade them.
While other officers remained at the scene to look
for defendant, Lorentz left to speak with the registered
owner of the disabled truck, a neighbor named Zimmerman.
Zimmerman told Lorentz that he had seen defendant driving
the truck erratically around the time of the police dispatch.
He also said that defendant appeared slumped over and
intoxicated at that time. Lorentz went back to defendant’s
trailer and informed the other officers of Zimmerman’s
statements.
With no luck finding defendant, officers began to
leave the scene. One officer, Trooper Spini, remained until
about 11:50 p.m., when he left for the Brookings Police
Department. He stayed there for about an hour and returned
to defendant’s residence at about 12:56 a.m. As he drove up,
Spini saw defendant and Wilson-McCullough on a porch just
outside the trailer. Defendant immediately went into the
trailer and did not respond to Spini’s subsequent requests
for defendant to come out. At around 1:05 a.m., Spini called
for assistance from other officers, including Lorentz and
officers from the Brookings Police Department, who arrived
about ten minutes later.
After the officers made additional attempts to
get defendant to exit voluntarily, Lorentz crawled into the
trailer through an open window and unlocked the front door,
allowing the other officers in. Defendant had locked himself
in a bathroom and initially refused officers’ demands that
he come out. Defendant came out only when officers began
unscrewing the bathroom doorknob and threatened him
with a Taser. After defendant opened the bathroom door, offi-
cers detected an overwhelming odor of alcohol and observed
that defendant’s speech was slurred and that his eyes were
watery and bloodshot. At that time, around 1:33 a.m., Spini
placed defendant under arrest.
Cite as 361 Or 781 (2017) 785
Spini left the scene with defendant for the Curry
County Jail at around 2:00 a.m. After arriving at the jail
at around 2:23 a.m., defendant made incriminating state-
ments. Spini had assumed that, if he asked defendant for
consent to test his BAC, defendant would have refused to
provide consent. But, before officers had the chance to ask
for consent, defendant volunteered to take a breath test. The
breath test showed that defendant, about four hours after
he last drove, still had a BAC level of 0.14 percent, which is
above the legal limit of 0.08. ORS 813.010(a).
Defendant was charged with DUII, ORS 813.010,
and driving while suspended, ORS 811.182. Before trial,
defendant moved to suppress all evidence that the officers
obtained following their warrantless entry into his home.
At the suppression hearing, Spini testified that one reason
that he did not seek a warrant before entering the trailer
was because he was concerned about the dissipation of
alcohol in defendant’s body. Spini understood that alco-
hol typically dissipates at an average of about 0.015 per-
cent per hour, though he noted that dissipation rates vary
from person to person. Spini further stated that it would
take about 90 minutes for him to obtain a search warrant,
although Lorentz testified that he could do so in about 45
minutes.
The trial court concluded that the officers developed
probable cause to believe that defendant had committed a
DUII after Lorentz spoke with Zimmerman—that is, before
the officers completed their initial investigation. The trial
court also concluded that, based on Spini’s testimony, the
officers had probable cause to believe that they could still
obtain evidence of defendant’s alleged DUII by taking a
sample of defendant’s blood or breath at the time the offi-
cers entered defendant’s residence. Further, the trial court
found that the officers entered the home without a warrant
because, among other reasons, “the officers were concerned
about the dissipation of alcohol in [ ] defendant’s blood or
breath if a blood or breath test was obtained.” As a result,
the trial court held that exigent circumstances “provide[d]
a valid basis for entry into the trailer without a warrant in
this case.”
786 State v. Ritz
In reaching that result, the trial court rejected
defendant’s argument that any exigency was the result of
improper officer delay. Defendant had argued that the offi-
cers could have applied for the warrant during the time
between first leaving the scene and subsequently return-
ing to the scene about an hour later. But, according to the
trial court, the officers could not have obtained a warrant to
search the trailer at that point because they had no reason
to believe that he was in the trailer. The trial court instead
found that the officers did not reasonably believe that defen-
dant was in the trailer until they returned to the scene at
around 1:00 a.m. The trial court found that, from that point
on, officers did not unnecessarily delay entering defendant’s
residence and arresting him. As a result, the trial court
denied defendant’s motion to suppress.1
Defendant appealed, arguing that the natural dis-
sipation of alcohol does not establish an exigency justifying
a warrantless home entry. The state argued, on the other
hand, that the exigent circumstances justifying a warrant-
less home entry may be established without regard to how
long it would take the investigating officers to obtain a war-
rant. Instead, the state contended, the exigency is estab-
lished when an officer has reason to believe that a DUII
suspect has evidence of that DUII in his or her body and the
suspect has refused to leave his or her home.
The Court of Appeals affirmed the trial court’s
order under both the state and federal constitutions and
held that the natural dissipation of alcohol in defendant’s
body justified the warrantless entry that occurred in this
case. State v. Ritz, 270 Or App 88, 100-01, 347 P3d 1052
(2015). Although the court reached the result sought by the
state, it did not apply the reasoning that the state had pre-
sented. As an initial matter, the court held that, to prove an
exigency, the state was required to show how long it would
have taken to obtain a warrant. Id. at 97.
1
The trial court relied on two other grounds to deny defendant’s motion to
suppress and justify the warrantless entry: hot pursuit and officer safety. To the
extent that the state asserted those grounds on appeal, the Court of Appeals did
not reach them, because it affirmed the trial court’s ruling based solely on the
state’s destruction-of-evidence rationale. State v. Ritz, 270 Or App 88, 93, 347 P3d
1052 (2015). As a result, the only issue before this court is the state’s destruc-
tion-of-evidence rationale.
Cite as 361 Or 781 (2017) 787
Additionally, the court explained that, under the
facts of this case, the state could establish an exigency only
by showing that “the suspect’s blood would have lost all
evidentiary value” if the officers had waited to perform the
search until after obtaining a warrant. Id. at 99 (emphasis
added). The state had argued that previous decisions by this
court had upheld exigency findings based on a showing that
the suspect’s blood would have lost only some evidentiary
value if officers had obtained a warrant first. Id. at 93-94.
But the Court of Appeals distinguished the facts of those
cases, which had involved field sobriety tests (FSTs) or blood
draws taken from suspects detained in a hospital setting,
from the facts of this case, which involves a warrantless
home entry. The court noted that the home is afforded the
greatest protection from state intrusions. Id. at 94.
The court then explained the process for deter-
mining when a suspect’s blood would lose all of its eviden-
tiary value. Because alcohol dissipates gradually and in a
relatively predictable manner, the state can use a process
called retrograde extrapolation to work backwards from a
suspect’s later BAC test results and estimate the suspect’s
BAC at the time that he or she was driving. Id. at 98; see
State v. Eumana-Moranchel, 352 Or 1, 5, 277 P3d 549 (2012)
(describing retrograde extrapolation). According to the
court, retrograde extrapolation can prevent a suspect’s pre-
vious BAC level from losing all evidentiary value, even while
the alcohol in the suspect’s body is dissipating. Ritz, 270 Or
App at 98.
As a result, the Court of Appeals concluded that
the evidentiary value of BAC evidence is lost “only when so
much alcohol has been removed from the bloodstream that
retrograde extrapolation can no longer produce a reasonably
accurate estimate of the suspect’s BAC at the time he or she
was driving.” Id. The court presumed that a reliable retro-
grade extrapolation could be obtained until a suspect’s BAC
level reaches 0.00. Id. at 100 n 4. The court further held
that, “in the absence of contrary information about defen-
dant’s actual condition,” police could rely on the assumption
that, at the time of the accident, defendant had a BAC level
of 0.08, the statutory threshold for intoxication. Id. at 100.
788 State v. Ritz
Relying on Spini’s testimony that alcohol dissipates
on average at 0.015 BAC per hour, the Court of Appeals then
held,
“With a dissipation rate of 0.015 per hour, it would take
approximately five hours and twenty minutes for a per-
son’s BAC to drop from 0.08 to 0.00. A little more than
four hours elapsed between defendant’s accident and the
breath test. If police believed that it could take as long as
90 additional minutes to obtain a warrant (a reasonable
estimation on this record), they could foresee a substantial
possibility that defendant’s BAC would have dropped from
0.08 (the threshold level for liability) to zero by the time it
could be measured. On those facts, the police had an objec-
tively reasonable basis to believe that waiting for a war-
rant would have resulted in the complete loss of evidence.
In short, even considering the relative severity of the state’s
intrusion and the broadness of its scope, the timing of the
search indicates that it was reasonable under these specific
circumstances.”
Id. at 100-01 (footnote omitted).
Thus, the Court of Appeals upheld the trial court’s
denial of defendant’s motion to suppress, but it did so on
grounds that substantially undermined the arguments that
the state had presented. The state petitioned for review,
seeking to affirm the result reached by the Court of Appeals
but under different reasoning. This court allowed the state’s
petition. Although defendant neither petitioned for review
nor filed a response to the state’s petition that contained a
contingent request for review, we nevertheless exercise our
discretion to consider defendant’s arguments for reversing
the result reached by the Court of Appeals. ORAP 9.20(2).2
2
Ordinarily, a party seeking reversal of a Court of Appeals decision will
either petition for review itself or make a contingent request for review in its
response to the opposing party’s petition for review. See ORAP 9.05(4) (describing
the contents of a petition for review); ORAP 9.10(1) (allowing a response to a peti-
tion for review to raise contingent requests for review). Although defendant took
neither of those steps in this case, this court has the discretion to “consider other
issues that were before the Court of Appeals.” ORAP 9.20(2). We choose to reach
defendant’s argument in this case because the state did not object to defendant’s
arguments for reversal and because those arguments had been properly before
the Court of Appeals, raised purely legal questions, and were closely connected
to the question presented by the state in the petition for review that this court
allowed. Estate of Michelle Schwarz v. Philip Morris Inc., 348 Or 442, 457, 235
Cite as 361 Or 781 (2017) 789
II. ANALYSIS
On review, the state argues that the Court of
Appeals’ analysis erroneously limits exigent circumstances
to those situations where obtaining a warrant would result
in losing all evidentiary value in the BAC evidence. The
state contends, instead, that an exigent circumstance is
established if obtaining a warrant would result in losing
any evidentiary value in the BAC evidence. Defendant, on
the other hand, challenges the Court of Appeals’ conclusion
that the home entry in this case was justified under exigent
circumstances, arguing that the reasonableness of the entry
must be considered in light of factors other than destruction
of evidence, such as the extent of the privacy intrusion, the
seriousness of the offense, and the need for the evidence. We
first address the parties’ arguments under Article I, section
9, and turn to the Fourth and Fourteenth Amendments of
the federal constitution only if necessary.
A.  Framework
Article I, section 9, of the Oregon Constitution estab-
lishes the right of the people “to be secure in their persons,
houses, papers, and effects, against unreasonable search,
or seizure.” That provision protects against arbitrary and
oppressive state interference with the privacy and personal
security of the people. See State v. Fair, 353 Or 588, 602, 302
P3d 417 (2013) (so stating). The touchstone of that protec-
tion is reasonableness. Id.
In applying the constitutional standard of reason-
ableness, “[t]his court has adopted a categorical view * * *
that, subject to certain specifically established and limited
exceptions, deems warrantless searches to be per se unrea-
sonable.” State v. Bonilla, 358 Or 475, 480, 366 P3d 331 (2015).
Thus, before the state conducts a search, Article I, section 9,
generally requires it to obtain a warrant, issued by a neu-
tral magistrate and supported by probable cause, authoriz-
ing the search. State v. Rodgers/Kirkeby, 347 Or 610, 624,
227 P3d 695 (2010). “The constitution requires a warrant
so that a disinterested branch of government—the judicial
P3d 668, adh’d to on recons, 349 Or 521, 246 P3d 479 (2010) (describing the stan-
dards for exercising discretion under ORAP 9.20(2)).
790 State v. Ritz
branch—and not the branch that conducts the search—the
executive branch—makes the decision as to whether there
is probable cause to search.” State v. Kurokawa-Lasciak, 351
Or 179, 186, 263 P3d 336 (2011).3
The state contends that its warrantless entry into
defendant’s residence falls within an exception to the war-
rant requirement—namely, the exigent circumstances
exception. Exigent circumstances include situations where
the delay caused by obtaining a warrant would likely lead
to the loss of evidence. See State v. Snow, 337 Or 219, 223,
94 P3d 872 (2004) (explaining that an exigent circumstance
includes “ ‘a situation that requires police to act swiftly * * *
to forestall * * * the destruction of evidence’ ” (quoting State
v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991))).
The state has the burden of proving that the circum-
stances at the time of the warrantless search fall within the
exigent circumstances exception. State v. Baker, 350 Or 641,
647, 260 P3d 476 (2011). To satisfy that burden in this case,
the state must establish both that the officers had probable
cause and that exigent circumstances justified the officers’
warrantless search. See Snow, 337 Or at 223 (stating that
the exigent circumstances exception “requires both probable
cause and an exigency”).
The trial court concluded that the state satisfied
both requirements. The trial court first found that offi-
cers had the probable cause necessary to support search-
ing defendant’s residence for his blood-alcohol evidence.
According to the trial court, the statements of Wilson-
McCullough and Zimmerman supported probable cause to
believe that defendant had been driving under the influ-
ence of alcohol and that defendant’s residence contained
evidence of that crime—namely, defendant’s BAC. As a
result, the trial court determined that the state satisfied
3
See also State v. Matsen/Wilson, 287 Or 581, 587, 601 P2d 784 (1979) (“ ‘The
point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting out
crime.’ ” (Quoting Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L. Ed.
436 (1948).)).
Cite as 361 Or 781 (2017) 791
the probable cause requirement. The parties do not dispute
that finding.
Instead, the parties dispute whether exigent cir-
cumstances justified the officers’ warrantless search. The
parties’ arguments are largely framed around two recent
decisions by this court: State v. Machuca, 347 Or 644, 227
P3d 729 (2010) and State v. Mazzola, 356 Or 804, 345 P3d
424 (2015). We therefore review those decisions before turn-
ing to the parties’ arguments.
In Machuca, the defendant had caused a traffic acci-
dent and was taken to the hospital. 347 Or at 646. An officer
gathered evidence at the scene of the accident and then at
the hospital, establishing probable cause that the defendant
had committed a DUII and still had alcohol in his body. The
officer placed the defendant under arrest and the defendant
provided a blood draw, which was administered about 90
minutes after the traffic accident. Id. at 646-47.4
In assessing the constitutionality of that warrant-
less blood draw, this court stated that, under the facts of
that case, such a warrantless search and seizure is permis-
sible, “ ‘unless a warrant can be obtained without sacrificing
the evidence.’ ” Id. at 656 (quoting State v. Milligan, 304 Or
659, 666, 748 P2d 130 (1988)). The defendant argued that
the state failed to meet that burden, because the state failed
to establish the reasonable amount of time that the inves-
tigating officer could have expected it to take to obtain a
warrant. The defendant contended that, without knowing
how long it would take to get a warrant, the state could not
establish that obtaining a warrant would require sacrificing
any of the blood-alcohol evidence being sought.
This court rejected that argument. The officer had
acted promptly to obtain the blood sample after completing
4
The officer read the defendant his implied consent rights and consequences
and then asked the defendant for consent to perform the blood draw. Id. at 646.
The defendant consented to the blood test but later argued that his consent was
not valid because it had been compelled by threat of legal sanction for refusing
to comply. ORS 813.095(1) (establishing “the offense of refusal to take a test for
intoxicants”). This court did not reach the question of whether the defendant’s
consent was valid, because it held that, based on the exigent circumstances, the
state was allowed to compel the blood draw. Machuca, 347 Or at 657.
792 State v. Ritz
his investigation, and because the suspect was in a hospi-
tal receiving treatment, medical personnel were already
on hand to perform the blood draw. Id. at 646-47. Under
those facts, any time spent attempting to obtain a warrant
would have delayed taking the blood draw. And any delay in
taking the blood draw, regardless of how long, would have
required sacrificing at least some of the blood-alcohol evi-
dence that was being sought. In support of that point, the
court explained that blood-alcohol evidence is in a persistent
state of destruction beginning soon after it is consumed and
continuing until it has been fully metabolized by the body.
Id. at 652-57. The court therefore held that, under the facts
of Machuca, the investigating officer reasonably believed
that obtaining a warrant would have sacrificed some of the
blood-alcohol evidence being sought. Id. at 656-57.
In Mazzola, the court considered the constitutional-
ity of a warrantless field sobriety test (FST) of a DUII suspect
based on the natural dissipation of an unknown, non-alcohol
intoxicant. 356 Or at 807, 817. As in Machuca, the record did
not establish how long it would have reasonably taken the
officer to obtain a warrant. And, because the investigating
officer in that case knew only that the suspect appeared to be
under the influence of a drug, but did not know which drug,
the officer did not know the rate of dissipation. Id. at 809.
The defendant argued that, without those pieces of informa-
tion, the state could not establish that obtaining a warrant
would require sacrificing the evidence being sought.
The court rejected that argument, stressing that
the state had been attempting to prove the DUII based on
evidence of impairment other than a chemical analysis of
the defendant’s breath or blood. Compare ORS 813.010(1)(a)
(establishing DUII when driver “[h]as 0.08 percent or more
by weight of alcohol in the blood of the person as shown
by chemical analysis of the breath or blood of the person”)
with ORS 813.010(1)(b) (establishing DUII when driver
“[i]s under the influence of intoxicating liquor, cannabis,
a controlled substance or an inhalant”). When attempting
to prove the DUII based on evidence of impairment other
than a chemical analysis, “the most probative evidence gen-
erally will consist of observations made while—or close in
time after—the defendant was driving.” Mazzola, 356 Or
Cite as 361 Or 781 (2017) 793
at 818-19. In those circumstances, the state could prove an
exigency despite the lack of evidence establishing the dissi-
pation rate and the time it would take to obtain a warrant.
The court went on to explain that, “where a war-
rantless search for evidence of the crime of DUII is sup-
ported by probable cause to arrest the defendant, the issue
of exigency should be assessed in light of the reasonableness
of the search in time, scope, and intensity.” Id. at 819-20.
The court held that the facts in that case “established a suf-
ficient exigency to justify the warrantless administration of
the FSTs in this case.” Id. at 820.
“Here, limited testing designed to detect evidence of cur-
rent impairment was performed on a person who already
had been validly stopped and also was subject to arrest for
DUII. The tests at issue were limited in scope and inten-
sity; they did not intrude into defendant’s body; rather,
they assessed her coordination, balance, and motor skills.
Those tests constituted probative evidence of an element—
current impairment—of the crime of defendant’s arrest,
they were administered soon after defendant had been
observed driving, and they immediately preceded her
arrest. With respect to exigency, there also was evidence
that over time the body filters drugs and they dissipate
in one’s body, that various drugs can dissipate at differ-
ent rates, and that the effects of drugs wear off over time.
Again, the challenged FSTs assess a motorist’s impairment
at the time of driving, not at a later time.”
Id. (quotation omitted).
B.  The Parties’ Arguments
As noted, the parties dispute whether exigent cir-
cumstances justified the officers’ warrantless search in this
case. The state reads both Machuca and Mazzola as uphold-
ing the constitutionality of a warrantless exigency search
based on the loss of any evidence of an intoxicating sub-
stance in the suspect’s body. According to the state, delay-
ing entry into defendant’s residence in this case would have
allowed additional blood-alcohol evidence to dissipate, thus
sacrificing at least some of the evidence being sought, as
in Machuca and Mazzola. The state therefore argues that,
under Machuca and Mazzola, the officers’ warrantless entry
794 State v. Ritz
into defendant’s residence was constitutional in this case
and that the Court of Appeals’ reasoning was erroneous.
Defendant, on the other hand, contends that an
exigency search is justified only when the law enforcement
interests advanced by a warrantless search outweigh the
privacy interests at stake. Defendant argues that, although
preventing the destruction of evidence is a legitimate law
enforcement interest, the weight of that interest must be
discounted by the chance that an exigency search will fail
to prevent the evidence from being destroyed. Defendant
points out that, in this case, in order to preserve defendant’s
BAC evidence without a warrant, the officers were statuto-
rily required to obtain his consent, which the investigating
officers had no reason to expect.
Further, defendant argues that the privacy inter-
ests at stake in a home invasion are more intrusive than
the blood draw in Machuca and the FSTs in Mazzola. As
this court recently stated, “A government intrusion into the
home is at the extreme end of the spectrum: ‘Nothing is as
personal or private. Nothing is more inviolate.’ ” Fair, 353
Or at 600 (quoting State v. Tourtillott, 289 Or 845, 865, 618
P2d 423 (1980) (emphasis added)). One’s home is “the quint-
essential domain protected by the constitutional guarantee
against unreasonable searches.” State v. Guggenmos, 350
Or 243, 250, 253 P3d 1042 (2011) (internal quotation marks
and citation omitted). Defendant points out that, because
“[t]he very purpose of our constitutional provision was to
protect a person’s home from governmental intrusions,” the
right against intrusion into the home “should be stringently
protected by the courts.” State v. Davis, 295 Or 227, 243, 666
P2d 802 (1983).
At its core, the parties’ dispute is about the factors
that courts should consider, and how those factors should be
weighed, in determining whether an exigency search is justi-
fied. The state, in effect, gives decisive weight to the question
of whether obtaining a warrant would delay preserving evi-
dence that is dissipating. Defendant maintains that prevent-
ing the further dissipation of evidence is merely a component
of the law enforcement interest that must then be weighed
against the extent the privacy interests invaded by a search.
Cite as 361 Or 781 (2017) 795
C.  Evidentiary Deficiencies
The record before us, however, does not allow us to
resolve that dispute. Regardless of what other factors, if any,
might be considered when determining whether an exigency
search is justified, the state must prove that there was, in
fact, an exigency. In this case, that means that the state
must establish that officers reasonably believed that the
delay caused by obtaining a warrant would likely lead to the
loss of evidence. The state argues that delaying entry into
defendant’s residence in this case would have allowed addi-
tional blood-alcohol evidence to dissipate. But the record
does not support such a conclusion.
Here, the record demonstrates that the officers
were seeking defendant’s BAC. That is the same evidence
that was sought by the blood draw in Machuca and explains
the state’s reliance on that case. Machuca is distinguish-
able, however, because a blood draw directly preserves a
defendant’s BAC, but a home entry does not. A blood draw
removes a sample of blood from the defendant’s body and
therefore removes a sample of blood from the body’s meta-
bolic processes causing the blood-alcohol evidence to dissi-
pate. The sample is then used to test a defendant’s BAC at
the time of the blood draw. Thus, any delay in performing
the blood draw necessarily equates to a delay in preserving
the evidence.
The same is not true for a home entry. The meta-
bolic process causing the blood-alcohol evidence to dissipate
does not stop simply because officers have entered a defen-
dant’s home. Instead, to preserve a defendant’s BAC, officers
entering a home must then also obtain and test a sample of
the defendant’s breath or blood.5 As a result, the appropriate
question in determining whether there was an exigency is
not whether obtaining a warrant would have delayed enter-
ing defendant’s home. The appropriate question is whether
5
A urine sample may be used to “determin[e] the presence of cannabis, a
controlled substance or an inhalant in the person’s body.” ORS 813.131(1). And an
officer may request a urine sample under only if the officer has specific training in
recognizing drug-impaired driving and has reasonable suspicion that the defen-
dant engaged in drug-impaired driving. ORS 813.131(2). The record in this case
provides no grounds for requesting defendant to provide a urine sample and the
state does not contend that the officers intended to request one from defendant.
796 State v. Ritz
obtaining a warrant would have delayed obtaining and test-
ing a sample of defendant’s breath or blood.
As noted above, defendant volunteered to take a
breath test after arriving at the police station. Although, in
hindsight, it may be apparent that delaying entry to obtain
a warrant to enter the home might have delayed defendant’s
voluntary breath test, defendant’s willingness to volunteer
for a breath test was not known to the officers at the time
they entered defendant’s residence. And the time that the
officers entered the home is “the relevant temporal reference
point” for us to consider. Bonilla, 358 Or at 488; see also
id. at 487 (“When an exigency-based exception applies, the
lawfulness of a search depends on what a reasonable person
would make of the facts known to the officer at the time of
the search.”). Defendant’s conduct up to that point did not
suggest a willingness to cooperate with the officers. In fact,
Trooper Spini testified that he believed defendant would
refuse to provide a breath test if asked to do so.
Thus, at the time that officers entered defendant’s
home, they had no reason to think that obtaining a warrant
to enter the home would delay a consensual search for defen-
dant’s BAC evidence, because they had no reason to think
that defendant would consent to such a search. As defendant
points out, without satisfying the statutory standards for
consent, the officers were required by statute to obtain a
warrant (or some other type of court order) to obtain defen-
dant’s BAC evidence. Under ORS 813.100(1), an officer
may request that a DUII defendant submit to a chemical
test that would determine his or her BAC.6 But, under ORS
813.100(2) and ORS 813.320(2)(b), if the defendant refuses
6
ORS 813.100(1) (“Any person who operates a motor vehicle upon premises
open to the public or the highways of this state shall be deemed to have given con-
sent, subject to the implied consent law, to a chemical test of the person’s breath,
or of the person’s blood if the person is receiving medical care in a health care
facility immediately after a motor vehicle accident, for the purpose of determining
the alcoholic content of the person’s blood if the person is arrested for driving a
motor vehicle while under the influence of intoxicants in violation of ORS 813.010
or of a municipal ordinance. A test shall be administered upon the request of a
police officer having reasonable grounds to believe the person arrested to have
been driving while under the influence of intoxicants in violation of ORS 813.010
or of a municipal ordinance. Before the test is administered the person requested
to take the test shall be informed of consequences and rights as described under
ORS 813.130.”).
Cite as 361 Or 781 (2017) 797
to provide a sample, then an officer may compel the defen-
dant’s cooperation by obtaining a warrant.7
If, at the time that the officers entered defendant’s
home, a warrant was statutorily required to obtain and test
defendant’s BAC evidence, then it is not clear how requiring
the officers to obtain a warrant to enter the home—rather
than after entering the home—was likely to delay preserv-
ing defendant’s BAC evidence, particularly because the offi-
cers were capable of applying for a warrant from the scene.
In other words, obtaining a warrant prior to entering the
home would have delayed entering the home. But, if offi-
cers were required to obtain a warrant in order to preserve
defendant’s BAC, then obtaining a warrant before entering
defendant’s home would not have delayed preserving defen-
dant’s BAC evidence. As a result, based on the record and
arguments before us, the state has not even satisfied the
exigency standard that it reads Machuca as applying.
In response to that, the state simply changes the
evidence it says the officers were seeking. The state notes
that if a defendant refuses an officer’s request to provide
a sample for chemical testing, then the state may use that
refusal as evidence against the defendant. See ORS 813.310
(“[E]vidence of the person’s refusal is admissible in any civil
or criminal action, suit or proceeding arising out of acts
alleged to have been committed while the person was driv-
ing a motor vehicle on premises open to the public or the
highways while under the influence of intoxicants.”); ORS
813.130(2)(a) (“If the person refuses a test or fails, evidence
of the refusal or failure may also be offered against the
7
ORS 813.100(2) (“No chemical test of the person’s breath or blood shall be
given, under subsection (1) of this section, to a person under arrest for driving a
motor vehicle while under the influence of intoxicants in violation of ORS 813.010
or of a municipal ordinance, if the person refuses the request of a police officer to
submit to the chemical test after the person has been informed of consequences
and rights as described under ORS 813.130.”); ORS 813.320 (2)(b) (“The provi-
sions of the implied consent law shall not be construed by any court to limit the
introduction of otherwise competent, relevant evidence of the amount of alcohol
in the blood of a defendant in a prosecution for driving while under the influence
of intoxicants if: * * * The evidence is obtained pursuant to a search warrant.”);
see also ORS 813.100(5) (“Nothing in this section precludes a police officer from
obtaining a chemical test of the person’s breath or blood through any lawful
means for use as evidence in a criminal or civil proceeding including, but not
limited to, obtaining a search warrant.”).
798 State v. Ritz
person.”). So, according to the state, the home entry would
lead to evidence against defendant even if he refused to pro-
vide a sample.
We reject that argument. Even if the officers had
anticipated that defendant would refuse to provide a sample,
any anticipated refusal is not evidence capable of supporting
an exigency search, because it is evidence that did not yet
exist (and never did exist) and it is not subject to destruction
or dissipation. Thus, although a warrantless home entry
might produce evidence of a refusal, it is not accurate to say
that a warrantless home entry would preserve evidence of a
refusal.
Finally, the state also argues that the officers
were searching for observational evidence—specifically,
whether defendant appeared intoxicated. That observa-
tional evidence is distinct from a chemical test of a defen-
dant’s breath or blood, even though both types of evidence
are used to establish a defendant’s intoxication. Compare
ORS 813.010(1)(a) (establishing DUII when a person’s BAC
is at or above 0.08 percent) with ORS 813.010(1)(b), (c)
(establishing DUII when a person is under the influence
of intoxicants). Observational evidence was sought by the
FST used in Mazzola and explains the state’s reliance on
that case.
But Mazzola is distinguishable because none of
the officers in this case testified before the trial court that
observational evidence was the object of their search.8
In short, the trial court did not make, and was not asked
to make, a finding that the officers had probable cause to
enter defendant’s home on that basis. We cannot presume
that such probable cause evidence exists. See Guggenmos,
350 Or at 260 (“[W]e cannot presume the existence of other
8
The state presented no argument to justify considering the possible destruc-
tion of evidence other than that testified to by the investigating officers. Further,
in Mazzola, the officer directly observed the defendant’s intoxication immediately
before asking the defendant to perform the FST. 356 Or at 806. In this case, how-
ever, approximately three hours separated the last time defendant was observed
to be intoxicated. And there is no record evidence regarding how much alcohol
a reasonable officer would believe remained in defendant’s body at the time the
officers entered his home or the amount of alcohol that must remain to produce
observable effects.
Cite as 361 Or 781 (2017) 799
favorable facts; we must confine our review to the record
made.” (Quotation omitted.)).9
As a result, the record does not establish that the
officers reasonably believed, at the time that they entered
defendant’s home, that obtaining a warrant would have
delayed preserving evidence that was dissipating. The state
therefore failed to establish that the officers reasonably
believed that they were faced with an exigency in this case.
We recognize that, by deciding this case on the facts, we are
not resolving the legal question that the parties have brought
to us—namely, what factors should be considered in deter-
mining whether an exigency search is justified. However,
because the state failed to establish the existence of an exi-
gency, the state cannot justify its warrantless search as an
exigency search, regardless of what other factors should be
considered or how those factors should be weighed.
III. CONCLUSION
The decision of the Court of Appeals is reversed,
and the case is remanded to the Court of Appeals for further
consideration.
9
Similarly, the Court of Appeals held that “in the absence of contrary infor-
mation about [a] defendant’s actual condition, police could reasonably rely on
the presumptive threshold for DUII in Oregon—0.08 percent BAC by weight—
as a guidepost.” Ritz, 270 Or App at 100. And the court presumed that blood-
alcohol evidence loses all of its evidentiary value when it reaches a BAC level
of 0.0 percent. Id. at 100 n 4. But, without some evidentiary support, the use of
such presumptions improperly relieves the state of its burden to prove that offi-
cers reasonably believed that the blood-alcohol evidence was at risk of complete
dissipation. See Baker, 350 Or at 647 (“The state has the burden of proving that
circumstances existing at the time were sufficient to satisfy any exception to the
warrant requirement.”).