State v. Bridewell

759 P.2d 1054, 306 Or. 231, 1988 Ore. LEXIS 436

• Court: Oregon Supreme Court
• Decided: July 26, 1988
• Docket: TC 1233; CA A38352; SC S34603
• Status: Published

Opinions

CARSON, J.

For allegedly cultivating marijuana upon his premises, defendant was accused by criminal information with Manufacture of a Controlled Substance.¹ Evidence of the crime was gathered when deputy sheriffs entered defendant’s premises to investigate his possible disappearance. Defendant contends that their entry was unlawful, and he moved the trial court, inter alia, to suppress “the evidence * * * and * * * all information or knowledge gained either directly or indirectly as a result thereof * * * and all statements.” In addressing defendant’s motion at the suppression hearing, the trial court found the following facts:

Defendant lives alone in an isolated, rural area. Shortly before June 16,1985, defendant’s friend received several packages from United Parcel Service addressed to defendant. She tried to telephone defendant to come and pick them up. Although defendant’s answering machine was working, defendant never returned the call.

After three or four days, the friend became concerned because she knew defendant worked as a logger on his premises, lived alone, and might have suffered an injury. She also knew that defendant suffered from headaches and that threats had been made upon his life. On June 16, she drove to defendant’s premises between 8:00 and 9:00 p.m. When she arrived, she noticed that defendant’s dogs were chained to the front porch, the front door was open, and defendant’s two pickup trucks were gone.

The friend then went to the back door and entered the house. She called for defendant and noticed an empty pistol holster. The house was in a disheveled state. The friend tried to enter a bathroom but could not because the door was blocked by clothing.

Not finding defendant, the friend went to another building on defendant’s premises. She focused her vehicle lights on the doors and again called for defendant. There was no response.

She then drove to the sheriffs office. She gave a deputy a statement relating what she had observed. The deputy took the statement shortly before 10:00 p.m. No attempt was made to contact defendant from the sheriffs office.

The deputy decided that he would need a four-wheel drive to reach defendant’s residence.² He arranged for this with another deputy, and the deputies decided to go to defendant’s residence the following morning. Department custom was to inquire into this type of matter during daylight. The deputies also believed that the situation did not present an emergency.

Upon arriving at defendant’s residence the following day, the deputies observed the dogs on the front porch. The front door was still open, and they walked into the house. The deputies observed the empty holster and the disarray of the house. Although they called for defendant and looked upstairs, they did not find defendant.

The deputies then walked to defendant’s shop. The shop was on defendant’s premises, about 125 yards from his residence. Both doors were open. From inside, the deputies heard a “swishing” noise. Without calling for defendant, they entered the shop and saw, through an open door to a separate part of the shop, four marijuana plants, baskets, and grow lights.

The deputies called for defendant, who emerged from the room in which the plants were seen. He shut the door behind him. The deputies asked defendant to open the door, but defendant replied that they needed a warrant. When the deputies responded that they did not need a warrant because they already had observed the evidence, defendant assented and opened the door. Three hundred fifty-four marijuana plants were seized. Although they discovered the alleged criminal activity, the trial court also found that the deputies did not go to defendant’s premises to look for marijuana plants or evidence of “misdeeds.”

On these facts, the trial court ordered the suppression of evidence, finding that “there was no legal and valid intrusion into the shop.”³ The Court of Appeals reversed, concluding that, pursuant to their “community caretaking function,” the deputies had a “reasonable basis” for entering defendant’s premises. State v. Bridewell, 87 Or App 316, 742 P2d 648 (1987). We reverse the decision of the Court of Appeals.

I. LEGALITY OF INTRUSION IN CRIMINAL CONTEXT

Absent consent, law enforcement officials must have a warrant to search a person’s premises. Warrantless entries and searches of premises are per se unreasonable unless they fall within one of the few specifically established and carefully delineated exceptions to the warrant requirement. State v. Davis, 295 Or 227, 237, 666 P2d 802 (1983).

A. Emergency/Exigent Circumstances Exception.

In this case, the deputies did not have a warrant to enter defendant’s premises. The question is whether the entry may be justified under an exception to the warrant requirement. This court has recognized the existence of an “emergency doctrine” exception to the warrant requirement in the context of investigation of crime. State v. Miller, 300 Or 203, 229, 709 P2d 225 (1985).

The trial court here concluded that there was no emergency and thus no justification for the warrantless entry. We are bound by the trial court’s determination of what actually happened and limit our review to determining whether legal principles were correctly applied. State v. Davis, supra, 295 Or at 238.

Under the emergency/exigent circumstances exception, a warrantless entry requires probable cause. The deputies did not have probable cause to believe that defendant had been victimized by criminal activities upon his premises and was in need of their immediate assistance. They had not received a report of criminal activities or violence, merely that defendant’s house was unkempt, his dogs unattended, and his vehicles absent from their usual location. Nor was the report of an empty pistol holder or defendant’s failure to respond to his friend’s telephone or verbal calls sufficient to give rise to probable cause to look for criminal activity. The deputies did not have anything from which to conclude, even assuming that defendant had been the victim of criminal activity, that he was to be found upon his premises. We conclude that the deputies lacked probable cause of criminal activity sufficient to justify warrantless entry upon defendant’s premises under the emergency/exigent circumstances exception.

Further, even were we to conclude that the deputies did have probable cause to believe criminal activity was afoot, we note that the record does not disclose whether the deputies ever sought a warrant. Securing a warrant before entry is unnecessary if exigent circumstances, in addition to probable cause, exist, i.e., if an “emergency” exists. By the time they drove to defendant’s premises on the morning of June 17, about 12 hours had passed since the deputies had taken defendant’s friend’s statement. Although the passage of time does not necessarily negate an exigency, and an exigency may be created with the passage of time, it is also true that the passage of time detracts from a claim that an exigency existed. See State v. Beede, 119 NH 620, 406 A 2d 125, 131 (1979). Even if department custom might excuse an immediate, nighttime investigation, the deputies did not go to defendant’s premises until later the following morning. The passage of the intervening hours significantly dissipated any possible exigency. The passage of substantial time also suggests that the deputies could have tried to secure a warrant in the interval between the friend’s report and their entry onto defendant’s premises.

B. Emergency Aid Doctrine.

Apart from the emergency/exigent circumstances exception to the warrant requirement, this court tacitly has embraced the emergency aid doctrine in a criminal context. See State v. Davis, supra. The emergency aid doctrine is distinct from the emergency/exigent circumstances exception to the warrant requirement because the former does not require probable cause to believe that a crime has been committed. In Davis, the trial court concluded that the police did not have probable cause to enter when investigating a disturbance in a motel room. In reviewing that case, we observed the recognition of the emergency aid doctrine in both federal and state courts. We also observed that “this court has not had occasion to apply” the emergency aid doctrine. State v. Davis, supra, 295 Or at 238. After concluding that the circumstances in Davis arguably fell within the scope of the emergency aid doctrine, we held that any “emergency” previously existing had dissipated when the purported victim left the motel room.

However, even where courts may accept a reasonable belief or suspicion, as opposed to probable cause, as a basis to apply the emergency aid doctrine to law enforcement activities, this means a true emergency. As noted above, the facts of this case do not meet that threshold requirement.

II. LEGALITY OF INTRUSION IN OTHER THAN A CRIMINAL CONTEXT

We recognize that an “emergency doctrine,” of one sort or another, has been applied to warrantless searches and seizures in which probable cause and exigent circumstances exist without reference to criminal activity or situations likely to involve criminal activity.⁴ We never have expressly held that emergencies solely justify warrantless entries in a criminal context, and we decline to do so here.

It is apparent, however, that an “emergency doctrine,” as an exception to the warrant requirement, is most useful in the criminal law context where the issue of warrantless entries most often arises. Moreover, as is demonstrated by Part I.A of this opinion, the doctrine is best utilized as the “emergency/exigent circumstances exception.” 306 Or at 235-36. Probable cause has been a traditional criminal law construct. See South Dakota v. Opperman, 428 US 364, 370 n 5, 96 S Ct 3092, 49 L Ed 2d 1000 (1976) (probable cause peculiarly related to criminal investigations, not routine, noncriminal procedures); but see Camara v. Municipal Court, 387 US 523, 87 S Ct 1727, 18 L Ed 2d 930 (1967) (probable cause required for housing inspection warrant) and n 6, infra. With this in mind, the Court of Appeals wrote: “On these facts, it makes no sense to speak of warrants or the warrant requirement. When they first went to defendant’s property, the deputies did not have probable cause to seek a warrant to search for any purpose. Therefore, no search warrant could have issued.” 87 Or App at 321. The Court of Appeals went on, however, to find that the deputies lawfully were upon defendant’s premises pursuant to their “community caretaking function.”

As the Court of Appeals observed, the concept of a community caretaking function was recognized in Cady v. Dombrowski, 413 US 433, 93 S Ct 2523, 37 L Ed 2d 706 (1973). The United States Supreme Court recognized that local law enforcement officials frequently investigate motor vehicle accidents and engage in “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” 413 US at 441.

This phrase previously has been quoted in one of this court’s decisions. In State v. Atkinson, 298 Or 1, 688 P2d 832 (1984), we observed that the First Circuit upheld an intrusion upon a boat where there was a reasonable fear of a drowning. The federal decision was based upon a combination of “ ‘community caretaking functions’ ” and “possibly exigent circumstances.” 298 Or at 9 n 4. We also noted in Atkinson that a Florida appeals court upheld a police officer’s entry into an automobile driver’s pocketbook to look for medical disability identification under circumstances suggesting that the driver was undergoing a medical emergency. Id.

The Court of Appeals previously has dealt with the concept of a community caretaking function. In State v. Apodaca, 85 Or App 128, 735 P2d 1264 (1987), the court held that state troopers were not entitled, as part of their community caretaking functions, to enter a house without a warrant as part of an investigation into an automobile accident. In State v. Fleming, 63 Or App 661, 665 P2d 1235 (1983), the court held that police officers could not, pursuant to a community caretaking function, lift a folded-down back seat of an automobile that they had stopped and moved at the defendant’s request. See also State v. Thirdgill, 46 Or App 595, 613 P2d 44 (1980).

There is no generic “community caretaking function.” Whether law enforcement officers have specific functions is a matter of statutory law. Whatever the existence, extent, or nature of community caretaking functions, however, mere exercise of any activity pursuant to one of them does not insure compliance with Article I, section 9. Any intrusion of state power upon a constitutionally protected interest, be it for civil or criminal investigative purposes, must comply with constitutional standards. The Court of Appeals decided that the intrusion in this case complied with the constitutional standard of “reasonableness” and so upheld the deputies’ entry upon defendant’s premises. 87 Or App at 324. We find it unnecessary to decide the issue because the deputies were without statutory or other authority from a politically accountable body to enter upon defendant’s premises pursuant to a community caretaking function.

As the lead opinion stated in Nelson v. Lane County, 304 Or 97, 102 n 2, 743 P2d 692 (1987), “[w]e often have stressed the need to examine statutory authority and the limitations imposed by that authority before reaching any constitutional question.” In this case, the state cannot point to a statute or ordinance authorizing entries by sheriffs or their deputies in response to citizen concern about the safety and well-being of neighbors. We conclude that the deputies were without authority to enter upon defendant’s premises and that all evidence resulting from that unauthorized entry properly should be suppressed.

Contrary to the assertions in the concurring/dissenting opinion, however, our decision today does not mean that law enforcement officers may not enter upon a person’s premises to render assistance to someone in need of that assistance. In situations implicating criminal law enforcement functions, law enforcement officers may enter without a warrant to render emergency assistance under the emergency/ exigent circumstances exception to the warrant requirement. In situations not implicating criminal law enforcement functions and not justified by the emergency/exigent circumstances exception, law enforcement officers, like private individuals, also may enter to render emergency assistance.® In the latter situation, however, incriminating evidence arising from the intrusion by law enforcement officers must be suppressed.^{5 6}

The decision of the Court of Appeals is reversed. The decision of the trial court is affirmed and the case is remanded to the trial court for proceedings consistent with this opinion.

1 ORS 475.992.

2 The deputy apparently decided this despite evidence that a four-wheel drive was not required. Defendant’s friend testified at the suppression hearing that she drove a regular pickup to defendant’s property on the evening of June 16.

3 The court also held that: (1) exigent circumstances did not exist to seize the plants; and (2) the deputies should have procured a warrant to search the room in which the plants were found.

4 See State v. Beede, 119 NH 620, 406 A 2d 125 (1979). Cf. United States v. Presler, 610 F 2d 1206 (4th Cir 1979) (warrantless entry of apartment upheld where landlady observed unusual odor and requested that police investigate); State v. Plant, 28 Or App 771, 561 P2d 647 (1977) (warrantless entry upheld where maid found defendant lying unconscious and police were summoned); Ash v. State, 424 So 2d 1381 (Ala Crim App 1982) (noncriminal search of premises without warrant to look for missing child).

Also see State v. Fisher, 141 Ariz 227, 686 P2d 750, 763-64 (1984) for a discussion of the distinction between the “exigent circumstances exception” and the “emergency aid doctrine.”

5 An entry by law enforcement officers to prevent serious harm to another would, in all likelihood, be privileged against a claim of trespass by the possessor of property. See Restatement (Second) of Torts, § 197. It also would not constitute criminal trespass. See ORS 164.205(3)(a), 164.245, 164.255, and 164.265; State v. Walker, 135 Or 680, 685-86, 296 P 850 (1931).

6 Politically accountable bodies might provide statutory or other authority for exercising the type of community caretaker function here contemplated. They have done so in other areas in which government officers enter upon property for governmental purposes. See ORS 476.155 to 476.170 (fire inspection warrants) and ORS 654.202 to 654.216 (safety and health inspection warrants). Such authority might provide for exercising the community caretaker function in a manner that might comply with Article I, section 9. A warrant process might be established whereby law enforcement officers obtain a warrant to enter upon premises to seek missing persons or others reportedly in distress. Where exigent circumstances exist, the law might provide for warrantless entries, provided there is probable cause for the entry.

For background on probable cause and warrants outside the criminal context, see Michigan v. Tyler, 436 US 499, 98 S Ct 1942, 56 L Ed 2d 486 (1978); Marshall v. Barlow’s Inc., 436 US 307, 98 S Ct 1816, 56 L Ed 2d 305 (1978); State v. Weist, 302 Or 370, 730 P2d 26 (1986); State v. Beede, supra. For a general discussion of the issue of civil searches, see Note, The Emergency Doctrine, Civil Search and Seizure, and the Fourth Amendment, 43 Fordham L Rev 571 (1974/75).

Finally, we note that State v. Walker, supra, is disavowed to the extent that it purports to allow exercise of a community caretaker function without prior authority.