State v. Bridewell

YOUNG, J.,

dissenting.

In State v. Newman, 292 Or 216, 637 P2d 143 (1981), cert den 457 US 1111 (1982), the court held that the conduct of the police in dealing with persons in nonemergency, noncriminal situations is to be tested by a standard of reasonableness. See State v. Perry, 298 Or 21, 26, 688 P2d 827 (1984). That rule has been applied to a search of a person’s purse for identification before transportation to a treatment center, State v. Newman, supra, 292 Or at 222 (where the action was held to be unreasonable as a matter of law), to an inventory search of luggage belonging to a person temporarily detained for detoxification, State v. Perry, supra, 298 Or at 27 (where it was held unreasonable to open a closed container), to a search of a purse of a detainee on a civil hold, State v. Okeke, 82 Or App 393, 401, 728 P2d 872 (1986), rev allowed 303 Or 261, 735 P2d 1224 (1987) (where it was held unreasonable, because it was not necessary for treatment), and to a search of a backpack to identify its owner. State v. Rounds, 73 Or App 148, 154, 698 P2d 71, rev den 299 Or 663 (1985) (where it was held unreasonable to open a closed container found in a backpack). The majority now holds that a nonemergency, noncriminal search of a home¹ does not violate Article I, section 9, if it is an exercise of the state’s “community caretaking” function. I believe that State v. Davis, 295 Or 227, 666 P2d 802 (1983), and State v. Atkinson, 298 Or 1, 688 P2d 832 (1984), foreclose the result reached by the majority, and I therefore dissent.

In Davis, the court adopted the “emergency doctrine” exception to the warrant requirement of Article I, section 9. Under that doctrine, police officers may enter a residence without a warrant to render emergency aid if they reasonably believe that there is an urgent need for immediate action to protect life or property. A remote possibility of harm cannot justify a warrantless entry into a home; the Oregon Constitution demands that a warrant be issued, unless there are artic-ulable facts showing a compelling and urgent need for the entry. State v. Davis, supra, 295 Or at 243. The rule that the majority adopts is inconsistent with Davis, because it authorizes entry on something less than an urgent need to render aid and assistance.

Even if Davis does not preclude an extension of the holding in State v. Newman to searches of dwellings, the search here does not satisfy the requirements of State v. Atkinson, supra. Atkinson holds that a non-criminal, non-emergency inventory is valid only if (1) it is conducted pursuant to a properly authorized administrative program which is designed and systematically administered to limit the exercise of discretion by the law enforcement person conducting the search and (2) the scope of the search is reasonable in relation to its purpose.² See also State v. Rounds, supra, 73 Or App at 154. Because there is no evidence that the officers entered the shop pursuant to an administrative program that limited their discretion, the majority’s result is inconsistent with Atkinson.

For these reasons, I would reject the state’s “community caretaking” argument. The only remaining issue is whether the search was valid under the “emergency doctrine” exception to the warrant requirement. I agree with the trial court that the facts do not evidence a compelling and urgent need for the entry. The officers waited 12 hours before going to defendant’s house. The condition of the house at best indicated that something had already happened to defendant; nothing indicated a situation in which the officers could have intervened to protect life or property. The “emergency doctrine” therefore does not apply, and the officers were not lawfully in the shop.

I would affirm.

1 The state did not argue below that the shop was not part of defendant’s home or within its curtilage. See Oliver v. United States, 466 US 170, 180, 104 S Ct 1735, 80 L Ed 2d 214 (1984); State v. Russo, 68 Or App 760, 683 P2d 163 (1984). I therefore treat the shop as part of defendant’s home.

2 Atkinson imposed a third requirement: that the property searched be lawfully in police custody. That requirement makes sense in the inventory context of Atkinson, but not when the property to be searched is a dwelling, as here.