State v. Follett

BUTTLER, J.,

concurring in part, dissenting in part.

Defendant appeals his convictions for possession of a controlled substance (cocaine), ORS 475.992, driving under the influence of intoxicants, ORS 813.010, and driving while suspended. ORS 811.175. He assigns error to the denial of his motion to suppress the fruits of a warrantless search of his car, which resulted in his conviction for possession of cocaine. The majority correctly states that the question is whether that warrantless search was permissible under the “emergency exception” to the warrant requirement. Because I disagree with its conclusion that it was permissible under that exception, I dissent from the majority’s affirmance of defendant’s conviction for possession of a controlled substance.

The trial court found, as the state contended, that the purpose of the search was to find out what substances defendant might have ingested. The evidence supports that finding, and we are bound by it. Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). In upholding the search, the trial court relied primarily on the state’s argument that the emergency aid doctrine permitted the warrantless entry into defendant’s car in order to render medical assistance to defendant, who was at the police station. In State v. Watson, 95 Or App 134, 137-38, 769 P2d 201 (1989), we said:

“[W]hen police act in a capacity other than criminal law enforcement, entry into protected areas may only be made pursuant to ‘statutory or other authority from a politically accountable body.’ State v. Bridewell, [306 Or 231, 239, 759 P2d 1054 (1988)]; see also State v. Pidcock, 306 Or 335, 341-42, 759 P2d 1092 (1988); Nelson v. Lane County, 304 Or 97, 101-06, 743 P2d 692 (1987). Only if that authority exists and if discovery otherwise meets the plain view exception to the warrant requirement is the evidence admissible. Nelson v. Lane County, supra, 304 Or at 104 n 5; see also State v. Pidcock, supra. When presented with situations not directly related to a criminal violation investigation, police may still enter protected areas to render aid or assistance, notwithstanding a lack of statutory authority, but, under Article I, section 9, any evidence discovered is inadmissible in a criminal prosecution. State v. Bridewell, [306 Or 231], 239-40, 759 P2d 1054 (1988); see also State v. Okeke, 304 Or 367, 373, 745 P2d 418 (1987).”

That statement of the law is a fair summary of State v. Bridewell, supra, and the state accepts it as such. The majority, however, does not. It treats the statements in Bridewell as dicta that we may ignore. In Bridewell, the Supreme Court analyzed the various related exceptions to the warrant requirement that might be applicable in this state: emergency/exigent circumstances; emergency aid doctrine and community caretaking function. Its analysis was relevant to its decision and was intended to articulate the circumstances in which those exceptions apply in Oregon. None of those exceptions applies here. The court recently quoted part of the above quote from State v. Watson, supra, with apparent approval; it held, however, that the law as we stated it was not applicable in that case, because the police allegedly had entered with the consent of the occupant. State v. Paulson, 313 Or 346, 833 P2d 1278 (1992).

As indicated, the state accepts our summary of the applicable law in Watson, and it argues that the search in this case is authorized under that statement of the law. It contends that, because defendant was a prisoner who required medical treatment while in custody, Oregon law requires that treatment be provided him. ORS 169.140.¹ Although the statute does not expressly authorize custodians to search a protected place, the state contends that that authority maybe implied if that action is necessary to accomplish the statutory duty to provide medical aid. In other words, there was the necessary statutory authority to permit Sawyer’s warrant-less entry into defendant’s car to assist in providing medical aid to defendant.

If the state is correct, Sawyer would have been justified in searching, not only defendant’s car, but also any place, including defendant’s home, where evidence that might be helpful in treating defendant might be found. I find no such implied authority under that statute. Accordingly, without statutory authority, the emergency exception is not applicable, and evidence obtained by the search of defendant’s car must he suppressed. State v. Bridewell, supra.

Instead of responding to the state’s only argument in support of the emergency exception, the majority goes off on a frolic of its own and, in modified form, adopts the emergency exception applied in New York and in several other states. 115 Or App at 679 n 3. In its modified form, the majority’s rule reduces the New York requirement that the police have a reasonable basis approximating probable cause to a requirement of only a “reasonable basis that approximates reasonable suspicion” to associate the emergency with the place to be searched. 115 Or App at 679. Apparently, the majority’s newly-concocted rule would require less than reasonable suspicion.

First, it is noteworthy that, in all of the cases cited by the majority,² as in all of the Oregon cases applying the emergency aid exception, the entry was justified to give aid to a person who was inside the protected area sought to be searched. Defendant was not in his car when Sawyer entered it.

Second, regardless of whether the Oregon law as enunciated in Bridewell or the majority’s new “rule” is applied, there must be a true emergency. The majority concedes that. The trial court did not expressly conclude that there was a true emergency that could justify Sawyer’s searching defendant’s car. The majority emphasizes that “defendant’s condition was consistent with what Sawyer knew to be the symptoms of cocaine overdose.” 115 Or App at 675. (Emphasis supplied.) It refers to Miller’s testimony that knowing what substance a person in defendant’s condition had ingested would he helpful in determining the appropriate course of treatment. However, it ignores Miller’s testimony that preceded the statement relied on. He testified that, if someone is suspected of a potentially lethal cocaine or methamphetamine overdose, the patient should be taken immediately to the hospital or, at the least, an ambulance or EMT should be called by the police or other person discovering the situation. He said that medical evaluation should be obtained as soon as possible for a person who was “engaging in seizures, * * * eyes rolling up into the head, * * * foaming or drooling at the mouth, * * * making guttural sounds, phasing in and out of reality, and * * * displaying extraordinary physical strength.” Any delay before getting medical help should be avoided: “The time element * * * is very important,” he said. Although Miller agreed that it would be very helpful to know what substance the patient had ingested, the priority is to seek medical help. Approximately 20 minutes had elapsed since defendant was taken from the parking lot. Miller stated that a delay of 15 or 20 minutes to search for information as to what had been ingested would not be wise.

Because Sawyer recognized defendant’s symptoms as relating to cocaine overdose, the record tells us that defendant should have been taken immediately to a hospital or alternative medical aid should have been sought immediately. In that sense, there was no true emergency that justified Sawyer’s search for what he already knew. No one contacted the hospital or any medically trained personnel.

Third, the majority holds that the officer must have “a reasonable basis that approximates ‘reasonable suspicion’ ” to associate the emergency with the place to be searched. 115 Or App at 679. It goes on to say that Sawyer reasonably suspected that defendant’s car was associated with the emergency. Although the majority acknowledges that a suspicion, in order to be reasonable, must be based on specific articulable facts, it does not refer to Sawyer’s testimony in which he articulated specific reasons why his suspicion was reasonable. Rather, it refers to evidence on which Sawyer might have based a reasonable suspicion. It is not our function to do that. If Sawyer had articulated those reasons, we could say that he subjectively believed them, and we could then determine whether they were objectively reasonable. See State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986). Sawyer not only did not articulate those reasons, he said that he thought that he could search the car incident to defendant’s arrest, although his primary purpose was to find the substance that defendant had ingested. Because the state did not rely on Sawyer’s reasonable suspicion, or something that “approximates” that, he did not testify on that issue.

Accordingly, I would conclude that, under Bridewell or under the new test that the majority adopts, Sawyer was not authorized to search defendant’s car.

In the trial court, the state contended, alternatively, that the search can be justified as incident to defendant’s arrest for DUII to search for evidence of that crime and to prevent destruction of the evidence. A search incident to arrest is permissible if it is close in time and space to the arrest and if the intensity of the search is commensurate with the crime. State v. Caraher, 293 Or 741, 653 P2d 942 (1982). Here, the search was neither close in time nor in space. It occurred approximately 20 minutes after defendant had been arrested and taken to jail in handcuffs and some undetermined longer time before defendant was arrested after he had left his car to enter the store. As we pointed out in State v. Anderson, 81 Or App 267, 725 P2d 394 (1986), and State v. Ridderbush, 71 Or App 418, 692 P2d 667 (1984), when there is a logical break in the arrest process, any justification for a search incident to arrest under Caraher evaporates.

Finally, the state contends, for the first time on appeal, that the search can be justified, because Sawyer had probable cause to believe that evidence of the crime of DUII would be found in defendant’s car and because there were exigent circumstances justifying the failure to obtain a warrant. Probable cause under the Oregon Constitution has both subjective and objective components. State v. Owens, supra, 302 Or at 204. Sawyer did not testify that he had probable cause to believe that evidence of DUII would be found in defendant’s car; he said, and the trial court found, that he was looking for the substance or substances that defendant might have ingested in order to provide medical treatment for defendant. The trial court found that it was reasonable for Sawyer to enter defendant’s car for that purpose, not that he had probable cause to search for evidence of crime. Therefore, the subjective component of probable cause is lacking.

Furthermore, even if Sawyer had testified that he had probable cause, it is doubtful that the objective component is supported by the record. The burden is on the state to establish probable cause; it did not do so. Because it did not rely on that exception in the trial court, Sawyer did not testify about it, and the court did not address it; it was irrelevant to the state’s theory.

Because evidence obtained as a result of the search of defendant’s automobile must be suppressed, the conviction for possession of a controlled substance must be reversed. However, I would affirm the conviction for driving under the influence of intoxicants. Trial was to the court and the only evidence consisted of police reports, defendant’s driving record and a laboratory report. The trial judge expressly limited his finding of guilt on the DUII charge to the observations of defendant in the police report relating to his arrest at the parking lot. There is no mention of what intoxicant defendant might have ingested. I would also affirm the conviction for driving while suspended, because evidence of defendant’s suspension would inevitably have been discovered by the “proper and predicable investigatory procedure,” State v. Miller, 300 Or 203, 226, 709 P2d 225 (1985), cert den 475 US 1141 (1986), of checking with the Motor Vehicles Division.

Accordingly, I dissent only from the affirmance of defendant’s conviction for possession of cocaine.

Joseph, C. J., and Durham, J., join in this dissent.

1 ORS 169.140 provides:

“The keeper of each local correctional facility shall furnish and keep clean the necessary bedding and clothing for all prisoners in the custody of the keeper, and shall supply them with wholesome food, fuel and necessary medical aid.”

2 Arguably, Gallmeyer v. State, 640 P2d 837 (Alaska Ct App 1982), cited by the majority, 115 Or App at 679 n 3, did not involve an entery to provide emergency aid to a person inside. However, the court reasoned that it was “necessary to protect life,” because the man inside had a gun and had threatened his wife, who was not inside when the officer arrived.