State v. Cota

675 P.2d 1101, 66 Or. App. 650, 1984 Ore. App. LEXIS 2482

• Court: Court of Appeals of Oregon
• Decided: January 25, 1984
• Docket: C81-01-30768, C81-01-30911 CA A23491, CA A23492
• Status: Published

Opinions

GILLETTE, J.

Defendant appeals his convictions on three counts of possession of a controlled substance, ORS 475.992(4), and one count of delivery of a controlled substance. ORS 475.992(1). Two of the possession counts are based on evidence discovered when police officers were executing a warrant for defendant’s arrest at his residence. He contends that the trial court erred in denying his motion to suppress that evidence, because the search of his home violated his rights under Article I, section 9, of the Oregon Constitution and the Fourth Amendment. We reverse.

The following facts are taken from the trial court’s memorandum opinion and are supported by the evidence:

“On January 31, 1981, four police officers had been serving a series of warrants, which they had been given for service earlier in the day. At about 5:25 p.m. that evening, they approached the residence involved here. At that time of year, no doubt it was dark. They had a warrant for the arrest of Jeffrey Cota, and the warrant showed an address ‘2949 SE Taylor.[¹] The warrant was for a drug offense and grew out of a so-called ‘sting operation’, in which, evidently, a police officer or informant had acted as a fence in order to apprehend persons dealing in stolen property. Many arrest warrants had been issued and were being simultaneously served by several teams of police officers.

“The officers did not know Mr. Cota, and evidently knew nothing of the alleged crime. They had no knowledge or probable cause to arrest Cota other than the warrant. They had a photograph of Cota. No evidence was offered tending to show they had any particular reason for concern about violence, resistance, other persons, or weapons in connection with serving the warrant. The Taylor street address was, in fact, Cota’s home, and the officers no doubt assumed that, but did not otherwise know he lived there.

“Two officers went to the rear of the house, while two officers walked up to the front door. From the front porch, those officers saw, through a window, a small boy go from the living room through the kitchen and come back with a man. The man came to the door and opened it. From the picture, the officers recognized him as Cota. The officers asked him if he was Jeffrey Cota, and he acknowledged he was. Cota was standing at the door, but inside the house, with the front door of the house open. The officers were standing on the front porch and the screen door was open. An officer handed Cota a copy of the warrant of arrest and told him he was under arrest. Cota did not resist by word or act and did not attempt to retreat from the doorway. Cota did not invite the officers into the house. Nor did he object to, or resist, their entry. They simply walked in without requesting his consent. Cota submitted to the authority of the officers.

“The officers entered the house, rather than simply handcuffing Cota at the door and leading him away, because they thought they were authorized to do so by reason of the warrant. They also called into the house the two officers who were covering the rear of the house.

“There is no evidence the officers had any knowledge who the child was, who his parents were, or whether there was anyone else in the house.

“One or more officers testified that they entered the house to be sure there was someone to assume responsibility for the child. That appears to be an afterthought. It was only after entering that they, quite properly, were concerned about ascertaining who the child’s parents were, to be sure there was a responsible adult with whom the child could be left.

“One or more officers testified that because it was winter, they needed to go inside with Cota to permit him to get a coat before taking him away. This again appears to be an afterthought. I find this was not their purpose or reason for entering. Cota was fully dressed, was not asked if he wanted to get a coat, and there was no evidence of cold or rainy weather. There was no evidence that a coat was obtained for him before he was taken from the house.

“There was no evidence from which to conclude the officers initially entered in order to search the immediate area of the arrest, or to conduct a so-called protective sweep of the premises to make sure there was no other person present who might endanger their safety.

“The officers were, no doubt, not unaware that in entering the house, they might discover in plain view and seize evidence of a crime. There is no evidence that this was a compelling reason for their entry, but was perhaps a factor.

“While in the house, Officer Englert obtained the consent of Cota to search the house. However, Officer Reynolds found the drugs and paraphernalia involved in this aspect of the motion to suppress, in an upstairs room while checking to see if there was anyone else in the room. Officer Reynolds was not searching pursuant to consent given by Cota to Officer Englert. The state did not prove that the consent was actually given prior to Officer Reynolds going upstairs. The written consent by Cota was signed after the discovery of the drugs by Officer Reynolds and after defendant Killmon was arrested.”

The record also shows that just after the officers entered the residence, Reynolds began to question defendant about the 10-year-old boy, Danny. He asked defendant “whose boy is this” and whether there was anyone else in the house to care for the boy. Defendant responded that no one else was in the residence but was noncommittal and shrugged his shoulders as to the other inquiries. Reynolds asked the boy where his father was and was told by Danny “I’ll show you.” Reynolds followed Danny through the house to an area near the garage. As they approached an open sliding glass door, Reynolds saw Killmon, Danny’s father, standing on a stairway behind the door. He directed Killmon to come down the steps and he patted him down for weapons.

Reynolds testified that, because defendant had told him no one else was in the house and that he had just discovered Killmon, he went up the stairway to see if there was anyone else there. After reaching the top of the stairs he saw a table in the middle of a small room with what appeared to be cocaine and drug paraphernalia on it. Reynolds found no one else in the room and returned downstairs where he arrested Killmon. The evidence found on the table is the subject of the motion to suppress.

During much of the period it has been before this court, the debate over this case has concerned the issue that arises first chronologically: whether the officers’ initial entry was unlawful, making the subsequent activities leading to the discovery of the contraband also unlawful. The question is interesting, and it is arguable either way. However, we do not find it necessary to answer it, because we hold that, even assuming that the officers’ initial entry into the house was justified by a concern for the safety of the child whom the officers had seen inside, that justification was lost when the officers encountered Killmon.² Once he had been found, there was no “practical necessity,” see State v. Lowry, 295 Or 337, 347, 667 P2d 996 (1983), for any officer to go farther into the house. The contraband that is the subject of this case was discovered after Killmon was located and after the officers’ only other legitimate purpose at or in the house — the arrest of defendant — had already occurred. The evidence should have been suppressed.

CA A23492 is reversed and remanded for a new trial; CA A23491 is affirmed.

1 The address was actually “9249” SE Taylor.

2 The separate opinion of Buttler, J., takes us to task for bypassing this issue. “To avoid the issue, as the majority does,” that opinion warns us solemnly, “is to leave law enforcement officers unsure about what they may and may not do lawfully * * 66 Or App at 664. Hardly. State v. Olson, 287 Or 157, 598 P2d 670 (1979), and State v. Jordan, 288 Or 391, 605 P2d 646, cert den 449 US 846 (1980), seem to us to establish essentially the bright line rule for which Buttler, J., contends. The trouble lies not in the rule, but in its application. The officers here did see the child inside. The fact that they did not think of assuring the child’s safety — -we take it that is what the trial court meant in referring to that idea as an “after-thought” — may, in spite of the separate opinion’s fixation on that word, be irrelevant. If the officers’ acts were objectively reasonable, they may be sustainable, anyway. See State v. Cloman, 254 Or 1, 456 P2d 67 (1969). We avoid this question — the continuing vitality of the Cloman “objective justification” rationale — by resolving the case on a separate — and clear — basis.