State v. Arce

730 P.2d 1260, 83 Or. App. 185, 1986 Ore. App. LEXIS 4402

• Court: Court of Appeals of Oregon
• Decided: December 31, 1986
• Docket: 153,170, CA A35400
• Status: Published

Opinions

WARDEN, P. J.

The state appeals from a pretrial order suppressing evidence seized in the execution of a search warrant. We affirm.

In October, 1984, officers of the Marion County Sheriffs Office and the City of Woodburn Police Department searched a residence in Gervais, pursuant to a search warrant issued by the district court. Heroin and cocaine were seized, and defendant was arrested and charged with possession of both controlled substances.¹

The principal basis for the search warrant was a “controlled buy” of cocaine by a police informant. The informant told officers that, when he was inside the residence making the “buy,” he had seen a person who was known to him as Ruben Guajardo. Officer Olson stated in his affidavit for the search warrant that he had discovered that there was an arrest warrant for Guajardo for escape in the second degree. Olson also stated that he had personal knowledge that Guajardo had assaulted police officers in the past and had resisted arrest.

The warrant was executed at 8:30 a.m. by nine police officers. Some officers were in uniform; others were in plain clothes. Without warning, they simultaneously kicked open the front and rear doors of the residence and entered with drawn weapons. As they entered, they shouted in Spanish and English that they were police and that they were authorized to search the house. At the time of entry, all of the residents were asleep. The police kicked open several bedroom doors and held the occupants at gunpoint. The occupants testified that they had no idea what the commotion in the house was until the officers forcibly entered their bedrooms and ordered them to “freeze.” Defendant and the other adult occupants were handcuffed and led to the kitchen area where the warrant was read to them and defendant was arrested. Defendant successfully challenged the warrant on the basis of the failure of the executing police officers to announce their identity, authority and purpose before entering the premises.²

In State v. Tweed, 62 Or App 711, 715, 663 P2d 38 (1983), we stated:

“The ‘knock-and-announce’ rule has roots in the Fourth Amendment, Ker v. California, 374 US 23, 83 S Ct 1623,10 L Ed 2d 726 (1963), and is codified in ORS 133.575(2) (with respect to search warrants) * * *. It requires that officers executing a warrant identify themselves and state their authority and purpose prior to entering the premises.” (Footnotes omitted.)

The constitutional knock-and-announce requirement need not be met when the executing officers reasonably believe that doing so would lead to the destruction of evidence, permit the escape of persons within the premises or increase the risk of harm to the officers or others. State v. Miller, 43 Or App 421, 425, 602 P2d 1141 (1979).³

The courts of this state have frequently been asked to consider the constitutional knock-and-announce requirement and its exceptions, see State v. Bishop, supra n 3, and cases cited therein, but this case is unusual in that the issuing magistrate provided, on the face of the warrant, that the police were

“authorized to use the degree of force as is reasonably necessary for the execution of this warrant with all practicable safety, including not giving notice of identity, authority or purpose in entering the premises.” (Emphasis supplied.)

Defendant argues that the issuing magistrate was without authority to authorize a no-knock entry on the basis of exigent circumstances described in the supporting affidavit; he argues that such a decision is solely the responsibility of the police officers at the scene. The judge at the suppression hearing agreed and suppressed the fruits of the search.

The problem is more basic than defendant suggests. A magistrate has no authority to abrogate the required procedures for executing a warrant; “knock-and-announce” is one of those procedures. See n 3, supra. The limited exceptions to the constitutional knock-and-announce requirement are based on the circumstances as they exist at the time when a warrant is executed, and they necessarily involve a violation of Oregon statutory law. A magistrate cannot validly authorize a statutory violation.

Although the police violated the statute, that violation does not require suppression in this case.⁴ We therefore turn to whether there was a constitutional violation. That question depends on whether, at the time when the warrant was executed, the officers had a reasonable belief that exigent circumstances then existed. Exigent circumstances exist when the executing officers reasonably believe that announcement could lead to the destruction of evidence, result in an escape or increase the danger to the officers or others. State v. Miller, supra, 43 Or App at 425. The trial court found that

“failure to make an announcement prior to entry was not justified by any belief that evidence would be destroyed or that the object of the search would escape.”

However, the trial court did not discuss the “danger to officers and others” exception.

The state argues that the escape charge against Guajardo and his history of assault and resisting arrest were sufficient to justify the police in entering without “knocking and announcing,” irrespective of the authorization in the warrant. The state made the same argument to the trial court, but that court granted defendant’s motion to suppress without making a finding on that issue. If findings are not made on all fact issues, and there is evidence from which they could be decided more than one way, we will presume that the fact issues were decided consistently with the trial court’s ultimate conclusion. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). Because the trial court concluded that the evidence must be suppressed, we will presume that it found that the known pending charge against Guajardo and of his criminal history was insufficient to show that he represented a danger to the police or to others that constituted exigent circumstances.

Affirmed.

1 Defendant was one of three persons arrested as a result of the search. All three joined in a consolidated suppression hearing, and the records of the other two defendants’ cases were included in the record for this appeal.

2 As a threshold issue, the state argues that the police substantially complied with the knock-and-announce requirements by announcing their identity and purpose simultaneously with their entry. However, the trial court specifically found that the police did not give notice of their identity, authority and purpose to the persons in apparent control of the premises until after they had entered. There is substantial evidence in the record to support that finding, and we are bound by it.

3 There is also a statutory knock-and-announce rule. ORS 133.575(2) provides:

“The executing officer shall, before entering the premises, give appropriate notice of the identity, authority and purpose of the officer to the person to be searched, or to the person in apparent control of the premises to be searched, as the case may be.” (Emphasis supplied.)

The statute is unambiguous on its face and states no exceptions. In State v. Bishop, 288 Or 349, 352, 605 P2d 642 (1980), the Supreme Court held that officers who did not announce their purpose before entering to make an arrest thereby violated ORS 133.235(5) and (6), which impose substantially identical requirements. We think it clear that the Supreme Court would reach the same result concerning ORS 133.575(2). Failure to knock and announce is thus illegal. Unlike ORS 133.140(7), which allows a judge to authorize an arresting officer to enter premises without giving notice of the officer’s authority and purpose, there is no statute allowing a magistrate to waive those requirements for a search. A magistrate may not authorize the police — or anyone else — to perform an illegal act, and the purported authorization in this warrant for a “no-knock” entry was necessarily void.

In the light of the clarity of the statute and of the Supreme Court’s holding in State v. Bishop, supra, we see no need to follow the dissent into the labyrinth of legislative history. It is clear that the legislature failed to enact a provision providing exceptions to the rule. Previous common law rules, whatever they were, cannot create exceptions to a clear statute. The most that the dissent shows is that some legislators believed that the courts should insert what the legislature had omitted. We cannot do that. ORS 174.010.

4 As with an arrest, we believe that a violation of the statutory knock-and-announce rule requires suppression of the evidence thereby discovered only if the violation was aggravated. See State v. Bishop, supra, 288 Or at 352-353. “This does not mean that the statute need not be obeyed, but means only that the evidence is not suppressed.” 288 Or at 353. The violation in this case was not aggravated because the police reasonably, although incorrectly, believed that they had valid judicial authorization for the “no-knock” entry. In this case, the evidence can be suppressed only if there was a constitutional violation. The critical disagreement between us and the dissent is whether there was a constitutional violation. The dissent would hold that exigent circumstances justified the police action; we do not.