State v. Woodward

WARREN, P. J.

Defendant appeals his conviction for possession of a controlled substance. ORS 475.992(4). He assigns error to the trial court’s denial of his motion to suppress, arguing that the police unlawfully searched him during the execution of a search warrant at another person’s home. We reverse.

On May 20,1989, uniformed police executed a search warrant authorizing a search of a particular residence and “all occupants within said residence” for drugs and drug related items. When they arrived, they found Harden apparently in the process of selling methamphetamine to Wise. While they were executing the warrant, the telephone rang “consistently” and several people stopped by. Harden kept trying to warn callers and visitors that the police were there, and the police eventually took him to jail. The police found property belonging to several different people in the apartment.

After the police had taken Harden away, defendant walked into the apartment without knocking and asked an officer for “Shorty,” Harden’s nickname. The informant on whose information the affidavit for the warrant was based had never mentioned defendant, and the officer who had had the apartment under surveillance had never seen him before. An officer put defendant in handcuffs and patted him down, but did not find anything. The officer asked defendant what he was doing there, and he said that he had come to pay Shorty for some work that he had done. The officers had defendant sit down for several minutes, then searched him more thoroughly. They found methamphetamine in a blue plastic container. The trial court concluded:

“Well, I find that the stop and arrest was [sic] proper, and there was reasonable suspicion that a crime had been committed. The search warrant was still in effect, and [the officer] was still in the process of executing same when the Defendant came on the scene. And there was probable cause that he was committing the crime by coming on the scene, so the Motion to Suppress is denied.”

The state argues that the police were entitled to search defendant under the warrant as an “occupant” of the apartment.¹ An “occupant” is “one who occupies a particular place; esp: RESIDENT.” Webster’s New Collegiate Dictionary 794 (1974). To “occupy” is “to take or hold possession of’ or “to reside in as an owner or tenant.” Webster’s New Collegiate Dictionary 794 (1974). Although defendant had walked into the apartment without knocking, his conduct was otherwise not consistent with that of an occupier of the place. The police here had insufficient justification to treat defendant as an occupant.

Alternatively, the state argues that defendant was lawfully searched incident to arrest for delivery of a controlled substance, ORS 475.992(1), or for frequenting a place where controlled substances are used. ORS 167.222. The search was not incident to a lawful arrest, because the police did not have probable cause to arrest. See State v. Owens, 302 Or 196, 729 P2d 524 (1986). They had no individualized suspicion that defendant was engaging in drug activities. Compare State v. Groda, 285 Or 321, 591 P2d 1354 (1979). Furthermore, they could not lawfully arrest him for frequenting a “drug house” without at least some indication that he was aware of some illegal activity being conducted in it and had some authority to forbid it. State v. Anderson, 95 Or App 178, 768 P2d 427 (1989); State v. Pyritz, 90 Or App 601, 752 P2d 1310 (1988).

The search violated Article I, section 9, of the Oregon Constitution, and the trial court erred in denying defendant’s motion to suppress.

Reversed and remanded for a new trial.

1 Defendant does not argue that the scope of the warrant was too broad or that the description of the persons to be searched was not particular. See State v. Ingram, 104 Or App 389, 802 P2d 656 (1990), rev allowed 311 Or 266 (1991).