State v. Davis

666 P.2d 802, 295 Or. 227, 1983 Ore. LEXIS 1342

• Court: Oregon Supreme Court
• Decided: June 29, 1983
• Docket: CA A23060, SC 28881
• Status: Published

Opinions

CARSON, J.

Defendant was convicted of Possession of a Controlled Substance and being an Exconvict in Possession of a Firearm. He seeks to suppress evidence obtained during a warrantless entry and search of his motel room and search of his person after arrest. This case presents for our consideration the permissible limits of police conduct undertaken upon at most a reasonable suspicion but without probable cause to believe that Defendant committed a crime.

Nine police officers responded to a report of a fight at a North Portland motel. The police found no fight when they arrived. Instead, they were approached by a man who said his girlfriend might be being raped in room number nine by a man he had seen with an automatic pistol in his waistband. With guns drawn, two of the police officers knocked on the door of room nine and announced their presence. After some delay and the sound of shuffling from inside, the door opened and a woman walked out. According to police testimony, she was fully clothed and did not appear disheveled or frightened. She walked past the officers and neither of them questioned her. Through the half-open door police observed Defendant behind the door. They ordered him to come from behind the door with his hands in view. He complied.

The police then reholstered their weapons and entered the room. One officer asked Defendant if he had a gun and he replied in the negative. Another officer observed an empty holster protruding from a backpack on the bed. Defendant told the police he did not want them in his room. When he tried to walk toward the door one officer restrained him in a wrist control hold.¹ Meanwhile, the others searched the room. No one frisked Defendant, nor did anyone question him about the woman’s presence in the room.

The police found a gun under the mattress and drugs in another backpack in the room.² Defendant was then placed under arrest.³ A search of Defendant’s person incident to the arrest uncovered drugs in a cigarette package in Defendant’s pocket. Sometime after the arrest police learned that Defendant was a former felon.

We are concerned here with the validity of two searches and two seizures, that of the motel room which disclosed the gun, and that of Defendant’s person which uncovered drugs. The state presents arguments to justify each search. The state relies on Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968); Adams v. Williams, 407 US 143, 92 S Ct 1921, 32 L Ed 2d 612 (1972); and State v. Riley, 240 Or 521, 402 P2d 741 (1965), for the proposition that any reasonable action undertaken to ensure the safety of the investigating officers is constitutionally permissible. The search of Defendant’s person occurred, according to the state, as an incident to a lawful arrest. In the state’s view, it is immaterial that probable cause did not arise until after the arrest because the search incident to arrest was “reasonably contemporaneous” with the development of probable cause to arrest.

The trial court denied Defendant’s motion to suppress these items based on a conclusion that the police officers were faced with an emergency and had a right to “neutralize” the scene in order to continue their investigation. Defendant argues that both searches were unreasonable in that the police, prior to their entry into the motel room, had neither probable cause to believe that he had committed a crime nor exigent circumstances to justify the entry. Defendant relies on both the Fourth Amendment to the United States Constitution and Article I, section 9, of the Oregon Constitution.⁴ He also cites, for the first time in his petition to this court, Oregon’s “stop and frisk” law, ORS 131.605 to 131.625, as governing both the authority for and the limitations on police detention of persons based only on a reasonable suspicion.

In this case, as in most that reach the appellate courts, legal analysis of the officers’ actions arises from the prosecution’s use of evidence seized from Defendant to obtain his conviction. The state’s response to the petition contends that whether the seizure of the evidence was lawful or unlawful on either statutory or constitutional grounds should not lead to its exclusion in Defendant’s trial because an officer who reasonably fears for his or her safety will not be deterred thereby. As the application of the exclusionary rule is questioned in this and many other cases, we review the basis upon which unlawfully seized evidence has been held inadmissible in this state.

It is generally said that the rule excluding from criminal prosecutions evidence obtained by an illegal search or seizure originated in Weeks v. United States, 232 US 383, 34 S Ct 341, 58 L Ed 652 (1914). That is not strictly accurate. State courts had so held before Weeks. In 1901, the Supreme Court of Vermont, for instance, held inadmissible in a larceny prosecution a letter seized from the defendant in the course of executing a warrant that authorized a search for stolen goods but did not cover the letter. State v. Slamon, 73 Vt 212, 50 A 1097 (1901). Two years later the Iowa Supreme Court ordered the exclusion of evidence that had been seized under an invalid search warrant. State v. Sheridan, 121 Ia 164, 96 NW 730 (1903). This was a minority view, see contrary holdings collected in 24 ALR 1408 (1923); and before those decisions Oregon had joined the majority in theory, see State v. McDaniel, 39 Or 161, 65 P 520 (1901), although the evidence in that case probably was validly seized.

The significance of these early cases denying the use of illegally seized evidence, however, lies in their reasons. “ ‘[A] party to a suit can gain nothing by virtue of violence under the pretense of process, nor will a fraudulent or unlawful use of process be sanctioned by the courts,’ ” wrote the Iowa court. “ ‘In such cases parties will be restored to the rights and positions they possessed before they were deprived thereof by the fraud, violence, or abuse of legal process.’ ” 96 NW at 731 (quoting from State v. Height, 91 NW 935).

The court acknowledged prevailing caselaw that courts would not stop proceedings to inquire how evidence was procured nor question evidence unlawfully taken by persons without color of official authority. But this could not allow the state to convict a man by evidence seized under an invalid warrant. “To so hold is to emasculate the constitutional guaranty, and deprive it of all beneficial force or effect in preventing unreasonable searches and seizures.” 96 NW at 731.

Similarly, the Vermont court had distinguished between private and official illegality. The rule that a court would not inquire how a party procured evidence was subject to another rule, “that, when a party invokes the constitutional right of freedom from unlawful search and seizure, the court will take notice of the question and determine it.” 50 A at 1098. Moreover, the seizure by official force of incriminating evidence from a defendant’s possession in effect “compelled [defendant] to give evidence against himself,” contrary to another guarantee of the Vermont Constitution. Id at 1099.

The antecedents cited for this pre- Weeks view of the relation between the guarantee against unlawful searches and seizures and its consequences in criminal trials were the Supreme Court’s exposition of that functional relationship in Boyd v. United States, 116 US 616, 6 S Ct 524, 29 L Ed 746 (1886) and its famous predecessor Entick v. Carrington, 3 Burr 1742, 19 How St Tr 1001, 1029 (1765), which was the recognized source of the American guarantees. The same opinions were the basis for the Supreme Court’s decision in Weeks against the government’s use of such evidence. See also People v. Marxhausen, 204 Mich 559, 171 NW 557 (1919); Fraenkel, Concerning Searches and Seizures, 34 Harv L Rev 361 (1920). The reason stated in Weeks why the government could not convict a defendant by evidence which its officers had unlawfully seized was neither to penalize those officers nor to deter them or others in the future, but to effectuate the law in the pending case.

“If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.”

232 US at 393.

Following Weeks, this court expressed its approval of the reasoning of that opinion. State v. Laundy, 103 Or 443, 204 P 958, 206 P 290 (1922). The court acknowledged its earlier rulings that courts “ordinarily” would not inquire during a trial into the collateral issue of how evidence was secured, but it treated this as a question of the timing of the defendant’s demand:

“If, however, the accused does not know until the paper or other article is offered in evidence that it was obtained by an unlawful seizure, he is nevertheless entitled at that time to an order of the court directing a return of the property [citing Weeks and two later decisions]. This rule of practice sanctioned by the Supreme Court of the United States ought, for the same reasons which recommended it to the court, be adopted and followed by the courts of this state.”

103 Or at 494 (emphasis added).⁵ Those reasons, we note, are not identical with a concern with “judicial integrity” that also is expressed in some Supreme Court opinions.⁶ The object of denying the government the fruits of its transgression against the person whose rights it has invaded is not to preserve the self-regard of judges but to preserve that person’s rights to the same extent as if the government’s officers had stayed within the law. By 1961, when Mapp v. Ohio, 367 US 643, 81 S Ct 1684, 6 L Ed 2d 1081 (1961) required exclusion in all states, 26 states had themselves adopted this view.⁷

In recent years, opinions of the United States Supreme Court have rephrased the reasons for excluding unlawfully seized evidence in terms of deterring such unlawful official conduct, over dissents that would maintain the original principle.⁸ The shift poses difficulties for the “due process” premise of the federal rule, but that need not concern us here.⁹ Every rule of law, of course, is intended to deter contrary conduct, and it is successful when it achieves that objective.¹⁰ But, as we recently stated,

“* * * the deterrent effect on future practices against others, though a desired consequence, is not the constitutional basis for respecting the rights of a defendant against whom the state proposes to use evidence already seized. In demanding a trial without such evidence, the defendant invokes rights personal to himself.”

State v. McMurphy, 291 Or 782, 785, 635 P2d 372 (1981). ¹¹

Thus this court has looked, rather, to the character of the rule violated in the course of securing the evidence when deciding whether the rule implied a right not to be prosecuted upon evidence so secured. From the beginning this consequence has been most obvious to courts when officers purporting to execute a judicial warrant seized evidence not covered by warrant, see State v. Slamon, supra, or when the warrant was wrongfully obtained, see State v. Sheridan, supra. A modern example in this court is State v. Jones, 279 Or 55, 566 P2d 867 (1977), where a unanimous court suppressed evidence taken under a warrant which the issuing judge would have denied if he had been apprised of a prior court order, although the impropriety was not of constitutional magnitude. Perhaps courts in such cases have found the result obvious because judicial authority is involved and the state would not have the evidence if it had observed the bounds set by that authority. But the principle is the same in warrantless seizures, because an officer can seize nothing without a warrant that could not properly be seized with a warrant if a magistrate had been at the officer’s elbow.

Our focus on the character of the violated rule is demonstrated in our other nonconstitutional holdings before and after State v. Jones, supra. In a sequence of cases beginning with State v. Cortman, 251 Or 566, 446 P2d 681 (1968), we have held that evidence seized under a warrant would not be suppressed because of the officers’ failure to comply with the statutory requirement to identify themselves before forcing entry. ORS 133.290, ORS 133.235(6), 133.542(2); see also State v. Bishop, 288 Or 349, 605 P2d 642 (1980); State v. Valentine/ Darroch, 264 Or 54, 504 P2d 84, cert den 412 US 948 (1972). We observed in Cortman that the purpose of requiring officers to announce themselves before entry was “grounded in practical experience: a police officer entering a house must guard against the possibility that he might be mistaken for someone with no right to be there.” 251 Or at 570. The purpose of the “knock and announce” rule, in other words, is the safety of the officers and others on the scene against violent consequences of a sudden, unexplained break-in; it is not to protect the privacy and the freedom of those within against an entry and arrest or search which the officers in fact were legally authorized to make. On similar reasoning, we declined to suppress evidence seized under a search warrant which a magistrate had endorsed for nighttime execution without adequate findings of need. State v. Ness, 294 Or 8, 653 P2d 548 (1982); State v. Brock, 294 Or 15, 653 P2d 543 (1982).¹² On the other hand, when the object of the statute is to define the authority of officers to seize or to search a person or property, as is true of ORS 131.605 to 131.625, the court has drawn the logical consequence and has given effect to the statute by denying the state the use of evidence that it would not have secured if its officer had respected the rights that the statute was designed to protect. State v. Valdez, 277 Or 621, 561 P2d 1006 (1977). This conclusion was not reached without consideration of whether that consequence was peculiarly correct only for constitutional violations.¹³ There is, however, no intrinsic or logical difference between giving effect to a constitutional and a statutory right. Such a distinction would needlessly force every defense challenge to the seizure of evidence into a constitutional mold in disregard of adequate state statutes. This is contrary to normal principles of adjudication, and would practically make the statutes a dead letter. The United States Supreme Court has suppressed evidence seized by federal officers without legal authority or in violation of statutes although not of the Fourth Amendment. Colonnade Catering Corp. v. United States, 397 US 72, 90 S Ct 774, 25 L Ed 2d 60 (1970); Benanti v. United States, 355 US 96, 78 S Ct 155, 2 L Ed 2d 126 (1957). Thus, when the Court of Appeals misconstrued State v. Valdez, supra, as requiring suppression of evidence only if the noncompliance with ORS 131.615 also was unconstitutional, we reaffirmed the contrary holding in a per curiam reversal. State v. Fairley, 282 Or 689, 580 P2d 179 (1978).

In summary, although not without some diversity of expression, the court since State v. Laundy, supra, has held to a principled view of the effect of an unlawful seizure of evidence. It has maintained the principle that those rules of law designed to protect citizens against unauthorized or illegal searches or seizures of their persons, property, or private effects are to be given effect by denying the state the use of evidence secured in violation of those rules against the persons whose rights were violated, or, in effect, by restoring the parties to their position as if the state’s officers had remained within the limits of their authority.

Turning to the evidence seized in this case, we examine first the search of the motel room. We start with the proposition that warrantless entries and searches of premises are per se unreasonable unless falling within one of the few “specifically established and well-delineated exceptions” to the warrant requirement. Katz v. United States, 389 US 347, 357, 88 S Ct 507, 19 L Ed 2d 576 (1967); State v. Peller, 287 Or 255, 598 P2d 684 (1979); State v. Matsen/Wilson, 287 Or 581, 601 P2d 784 (1979). The state has the burden of showing that circumstances existing at the time of entry invoke one of these exceptions. State v. Matsen/Wilson, supra. Absent consent, a warrantless entry can be supported only by exigent circumstances, i.e., where prompt responsive action by police officers is demanded. Such circumstances have been found, for example, to justify entry in the case of hot pursuit, United States v. Santana, 427 US 38, 96 S Ct 2406, 49 L Ed2d 300 (1976), the destruction of evidence, United States v. Kulcsar, 586 F2d 1283 (8th Cir 1978), flight of a suspect, Johnson v. United States, 333 US 10, 68 S Ct 367, 92 L Ed 436 (1948), and where emergency aid was required by someone within, United States v. Goldenstein, 456 F2d 1006 (8th Cir 1972).

In our review we are bound by the trial court’s determination of what actually happened. Our function is limited to determining whether legal principles were correctly applied. See State v. Peller, supra. The trial court did not find that the police officers had probable cause to believe that criminal activity was occurring prior to entering Defendant’s motel room. Instead, the state argued and the court accepted, the emergency doctrine as the exigency which authorized the initial police entry.

The emergency doctrine was recognized by the Supreme Court in Mincey v. Arizona, 437 US 385, 392, 98 S Ct 2408, 57 L Ed 2d 290 (1978), when the Court stated:

“* * * We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. * * *”

Although this court has not had occasion to apply the emergency doctrine, the Court of Appeals has relied on the doctrine to uphold warrantless entries in recent cases. See State v. Jones, 45 Or App 617, 608 P2d 1220 (1980); State v. Frink, 42 Or App 171, 600 P2d 456 (1979); State v. Plant, 28 Or App 771, 561 P2d 647 (1977). The linchpin in all the cases which rely upon the emergency doctrine to justify a warrantless entry is the urgent need to render aid and assistance within. For example, in State v. Jones, where a police officer entered the defendant’s apartment in the early morning hours believing four young children had been left unattended, the Court of Appeals said:

“The emergency doctrine is founded upon the actions of police officers which are considered reasonable under the circumstances that faced the officer at the time of entry. The element of reasonableness to enter the premises is supplied by the compelling need to assist persons in need. * * *”

45 Or App at 620.

In State v. Combs, 270 Ark 496, 606 SW2d 61 (1980), police responded to a call from a motel that a woman was being held at gunpoint in room 25. As the officers approached the room, three persons arguing outside went into the room and a female was overheard saying, “Let me go. Let me go.” The Arkansas Supreme Court upheld the warrantless entry into the room by the officers based on the exigencies of the situation. The officers had, based on all the corroborative information, reasonable cause to believe that individuals therein were “ ‘in imminent danger of death or serious bodily harm.’ ”¹⁴ 606 SW 2d at 64 (quoting Ark Rules of Criminal Procedure).

Another illustration is found in State v. Plant, supra, where police were summoned to a motel after the maid, entering defendant’s room 40 minutes after checkout time, found defendant lying on the bed apparently unconscious. The Oregon Court of Appeals upheld the warrantless entry into defendant’s room based on the officer’s need to render whatever assistance might have been necessary. The court cited as “well-established” that:

“ ‘* * * [P]olice officers may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance * * *.’ Root v. Gauper, 438 F2d 361, 364 (8th Cir 1971).”

28 Or App at 773. See also State v. Nichols, 20 Wash App 462, 581 P2d 1371 (1978).

Here, the circumstances which originally led the police officers to the door of Defendant’s motel room arguably fell within the scope of the emergency doctrine. Hearing from an excited man that his girlfriend was being held in a motel room by a man armed with an automatic pistol in his waistband, the police officers rightfully went to Defendant’s door to investigate. But, after knocking on Defendant’s door and prior to the time of the police officers’ entry, the woman in whose aid the use of the doctrine might be justified, opened the door and left the motel room. Thus, any “emergency” existing prior to her exit dissipated at the point she walked out the door.¹⁵ The state cannot invoke the emergency doctrine to justify their subsequent entry into Defendant’s motel room. See generally, Mascólo, The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment, 22 Buff L Rev 419 (1973).

The state, foreseeing this conclusion, argues for an unusual twist to the application of the emergency doctrine. Conceding that the emergency may have dissipated with the woman’s exit, the state claims this warrantless entry nonetheless was reasonable because, after her exit, the officers were faced with circumstances which led them to perceive a significant threat to their personal safety. Asserting that the officers had reasonable suspicion,¹⁶ if not a duty, to make a reasonable inquiry of Defendant and being informed of Defendant’s previous possession of an automatic weapon, the state claims that the officers were entitled to enter the motel room to “neutralize” the area for their personal safety while questioning Defendant.

Defendant argues that ORS 131.605 to 131.625¹⁷ limits the scope of a police intrusion based only on a reasonable suspicion. This court analyzes the statutory issues applicable to a case before reaching constitutional ones. State v. Thompson, 294 Or 528, 659 P2d 383 (1983); State v. Spada, 286 , 594 P2d 815 (1979); State v. Scurlock, 286 Or 277, 593 P2d 1159 (1979). These provisions authorize a police officer to, in the statutory language, “stop” a suspect where the officer “reasonably suspects” that a crime has been committed when the officers are “lawfully present in any place.” ORS 131.605(5); ORS 131.615 (Emphasis added.) The provisions do not give independent authority to the police to enter private premises to effectuate a “stop.” A statutory definition of what constitutes “lawfully present” is not provided. Therefore, without deciding whether these provisions apply and thus operate to limit the scope of the police officers’ intrusion once a “stop” is made, we must first assess the entry within the parameters of the state and federal constitutions to determine whether the officers’ presence was lawful.

The state cites Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968) in addition to State v. Riley, 240 Or 521, 402 P2d 741 (1965), and State v. McGregor, 57 Or App 78, 643 P2d 1315 (1982), for the extension of Terry to include searches of constitutionally protected areas, such as Defendant’s motel room, during their authorized questioning.¹⁸ Terry involved the permissible scope of police intrusion into constitutionally protected areas, where a police officer, making a limited investigation of a citizen, has reasonable suspicion that the citizen is armed. The scope of the intrusion is limited to a “pat down” of the outer clothing and, only upon feeling a likely weapon, reaching into the citizen’s clothing to seize the item. This power to search without a warrant and without arrest stems solely from the need of the officer to protect himself or herself from harm during the permissible investigation.

The confrontation in Terry, unlike the confrontation here, occurred on a public street. We have been directed to numerous cases which have extended the scope of Terry beyond the person to include searches of readily accessible, yet constitutionally protected, areas for the protection of interrogating police officers. Each case involved a “stop” of a defendant on a public street while driving in an automobile. See State v. Riley, supra, (gun protruding from under front seat of automobile); State v. McGregor, supra (zippered gun case underneath automobile seat); United States v. Rainone, 586 F2d 1132 (7th Cir 1978) (protective search of readily accessible areas of automobile); State v. Miller, 45 Or App 407, 608 P2d 595, rev den, 289 Or 275 (1980) (seizure of baseball bat from automobile).

We note first that the Supreme Court distinguished early between the constitutional protections afforded a dwelling or other building and those afforded an automobile in transit on a public street. See Cardwell v. Lewis, 417 US 583, 94 S Ct 2464, 41 L Ed 2d 325 (1974); Chambers v. Maroney, 399 US 42, 90 S Ct 1975, 26 L Ed 2d 419 (1970); Husty v. United States, 282 US 694, 51 S Ct 240, 75 L Ed 629 (1930); Carroll v. United States, 267 US 132, 45 S Ct 280, 69 L Ed 543 (1925). Second, we have been referred to no cases, nor has our independent research uncovered any cases, which extend the scope of a Terry protective search into the private recesses of one’s dwelling when an officer stands at the threshold with merely reasonable suspicion to support an investigation.

We have considered the importance of police safety in many areas of search and seizure law. We have permitted warrantless searches of the person incident to a lawful arrest in part to ensure the safety of the arresting officers. See generally State v. Caraher, 293 Or 741, 653 P2d 942 (1982). That same consideration justifies the search of the area immediately within an arrestee’s ability to reach for a weapon. State v. Chinn, 231 Or 259, 373 P2d 392 (1962). No better example is found than the power to frisk itself. See ORS 131.635. But, we have never held, and decline to hold here, that a reasonable suspicion sufficient to support a temporary detention of a citizen during investigation suffices to legalize entry into one’s premises without probable cause, without a warrant, without exigent circumstances and over one’s protests.

The state attempts to bootstrap the police officers’ entry into Defendant’s room by merging two independent doctrines i.e., the stop and frisk doctrine with the emergency doctrine, in order to fill the gaps of one doctrine with the arguably permissible scope of another. Thus, their “emergency” or exigent circumstance, is, in their words, the need to “neutralize” the area for their own protection while carrying on the questioning. We decline the invitation to stretch either of these doctrines in order to justify the police officers’ actions based on the facts presented here. Such a modification or blending of the two doctrines would create an exception to the warrant requirement which would effectively swallow the rule.

The very purpose of our constitutional provision was to protect a person’s home from governmental intrusions. State v. Chinn, supra. This right against intrusion should be stringently protected by the courts. See e.g., Warden v. Hayden, 387 US 294, 304, 87 S Ct 1642, 18 L Ed 2d 782 (1967), construing the similar provision of the federal constitution. As such, any exceptions to the warrant requirement should be narrowly and carefully drawn. See Jones v. United States, 357 US 493, 499, 78 S Ct 1253, 2 L Ed 2d 1514 (1958). The state’s proposed rule that police officers, having authority to encounter a defendant and make reasonable inquiry, are thereby entitled to enter a defendant’s premises in order to serve the needs of their safety, would be contrary to this principle of carefully drawn exceptions.

We are mindful of the dangers inherent in the work of police officers. The potential for violence exists in all confrontations between police and private citizens. But a remote possibility of harm to the police officers cannot justify a warrantless entry into the private recesses of one’s house. Absent articulable facts that evidence a compelling and urgent need for the entry, the Oregon Constitution demands a warrant be issued. We can require no less where the entry, as here, is supported with less than probable cause.

Having determined that the entry was unlawful, we need not address the subsequent searches and seizures as they are the direct consequence of the unlawful entry. The discovery and seizure of the gun must be suppressed. Products of the search incident to the arrest must likewise be suppressed, as any probable cause for the arrest stems solely from the illegal entry and subsequent illegal search. State v. Elkins, 245 Or 279, 422 P2d 250 (1966).

The decisions of the trial court and the Court of Appeals are reversed.

1 A wrist control hold was described by one officer as a “hold where you brace the upper part of a person’s arm against your own body and bend the wrist upward.” It is used to restrain a person by applying pressure to the wrist.

2 These drugs were suppressed prior to trial and are not an issue in this case.

3 Defendant was not told the charge for which he was arrested. On appeal, the state indicates that he was arrested for being an exconvict in possession of a firearm.

4 Article I, section 9, of the Oregon Constitution provides:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

5 In State v. McDaniel, 115 Or 187, 231 P 965, 237 P 373 (1925), the court initially reaffirmed its acceptance of the Weeks rule in Laundy “for the same reasons”as stated in Weeks, and stating that the importance of this question “to every citizen of the state, justifies us to quote at length the ‘reasons’ of the Supreme Court decisions which this court has so explicitly adopted in the Laundy case.” 115 Or at 204 (followed by extensive quotations from Laundy and Weeks). On rehearing, however, a majority of the court, three judges dissenting, concluded that the issue of suppression did not arise. Similarly, the court’s statement in Laundy itself has sometimes been downplayed as dictum, because the Laundy court found no illegal seizure. See, e.g., State v. Hoover, 219 Or 288, 347 P2d 69 (1959). However, if the court in Laundy had not meant what it said, there would have been no reason to examine the legality of the seizure. The court has since taken it as established that Laundy adopted the Weeks rule in Oregon to effectuate Oregon Constitution, Article I, section 9. See State v. Valentine/Darroch, 264 Or 54, 68, 504 P2d 84, cert den 412 US 948 (1972).

The immediate point is not when Oregon first excluded illegally seized evidence, but that the premise which commended itself for doing so was to bar the government’s use of its own invasions of the defendant’s rights, as stated in Weeks and its predecessors.

6 See, e.g., Terry v. Ohio, 392 US 1, 12-13, 88 S Ct 1868, 20 L Ed 2d 889 (1968); Elkins v. United States, 364 US 206, 222-23, 80 S Ct 1437, 4 L Ed 2d 1669 (1960); Olmstead v. United States, 277 US 438, 470, 48 S Ct 564, 72 L Ed 944 (1928) (Holmes, dissenting); id., 277 US at 484 (Brandéis, dissenting); Weeks, supra, 232 US at 391-92, 394.

7 See Elkins v. United States, 364 US 206, appx pp 224-32, 80 S Ct 1437, 4 L Ed 2d 1669 (1960). The states excluding evidence include: Alabama, Alaska, California, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Kentucky, Maryland, Michigan, Mississippi, Missouri, Montana, North Carolina, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Washington, West Virginia, Wisconsin and Wyoming.

8 See, e.g., Stone v. Powell, 428 US 465, 96 S Ct 3037, 49 L Ed 2d 1067 (1976); United States v. Peltier, 422 US 531, 95 S Ct 2313, 45 L Ed 2d 374 (1975); United States v. Calandra, 414 US 338, 94 S Ct 613, 38 L Ed 2d 561 (1974).

9 It is not easy to explain how “due process” for the defendant actually on trial, the necessary premise of applying the federal rule to state trials under the Fourteenth Amendment, depends on the Supreme Court’s estimate of its effectiveness in one or another context in affecting future police behavior. Such a “social engineering” view also implies that officials could defeat judicial adherence to the rule by declining to be deterred.

10 This court sometimes has spoken of the “protective and prophylactic purpose of the exclusionary rule.” State v. Holt, 291 Or 343, 630 P2d 854 (1981). Also, occasional opinions have indicated that the court might turn to such a rule for purposes of deterring future violations even when it did not deem suppression required simply to effectuate the right violated in the case before the court. See State v. Newton, 291 Or 788, 813,636 P2d 393 (1981) (plurality opinion); State v. Bishop, 288 Or 349, 353, 605 P2d 642 (1980). If the main object, however, were to deter officers rather than to effectuate rights of the actual defendant that the officers have disregarded, then unlawfully obtained evidence would be suppressed for the sake of deterrence whether or not the unlawfulness invaded the defendant’s personal rights, or whether a consent search resulted from the initial illegal search. We have taken the contrary view. See State v. McMurphy, 291 Or 782, 635 P2d 372 (1981); State v. Holt, 291 Or 343, 630 P2d 854 (1981); State v. Quinn, 290 Or 383, 623 P2d 630 (1981).

For criticisms of the instrumentalist approach of the most recent Supreme Court opinions, see, e.g., Schrock and Welsh, Up From. Calandra: The Exclusionary Rule as Constitutional Requirement, 59 Minn L Rev 251 (1974); Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: Comment, A Critique of the Spiotto Research and United States v. Calandra, 69 NWU L Rev 740, 776 (1974).

11 See also the dissenting opinion of three members of this court in State v. Newton, 291 Or 788, 825,636 P2d393 (1981):

“The state and federal constitutions do not make the individual person a mere instrument for judicial ‘policy considerations,’ to be protected when a court thinks this will usefully influence official conduct and not protected when a court thinks that it will not. They do not invite courts to manipulate due process for the individual only as a means to some other end.”

For a recent discussion of the reasons for exclusions referring both to statutory and constitutional violations, see State v. Warner, 284 Or 147, 162-65, 585 P2d 681 (1978).

12 The same reason might also be said to explain the court’s refusal to suppress statements taken from an arrested person after the law required that he or she be taken before a magistrate, if the statement was not otherwise induced by the unlawful detention. See State v. Shipley, 232 Or 354, 375 P2d 237 (1962).

13 That view was expressed in State v. Valentine/Darroch, supra, and see State v. Newton, supra, 291 Or at 814 (concurring opinion).

14 The police entry in State v. Combs, supra, was actually sustained based on Rule 14.3(a) of the Arkansas Rules of Criminal Procedure, a codification of the emergency doctrine.

15 The state does not claim, nor do the facts provide any support, that the police officers had any reason to believe some other woman remained inside the motel room in need of assistance.

16 Defendant has not challenged the state’s contention that reasonable suspicion to believe he had committed a crime continued after the woman, the purported victim, left the room and walked away without police intervention. We assume for purposes of this case that the police had sufficient objective facts upon which to base a reasonable suspicion for an inquiry.

17 ORS 131.605 to 131.625 was adopted by the 1973 Legislature as a codification of certain of the principles set out in Terry v. Ohio, supra. ORS 131.615 provides that:

“(1) A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that he is a peace officer, make a reasonable inquiry.

“(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.

“(3) The inquiry shall be considered reasonable only if limited to the immediate circumstances that aroused the officer’s suspicion.”

18 We begin our analysis with our own constitutional provision, Article I, section 9, as this state unquestionably remains free to impose greater restrictions on police activity than are required under federal constitutional standards. See State v. Caraher, 293 Or 741, 653 P2d 942 (1982). Should the laws of this state recognize and protect the Defendant’s asserted right, it cannot then be argued that the state is depriving Defendant of the right in violation of federal law. Inasmuch as certain federal cases under the Fourth Amendment are instructive, we shall refer to federal cases in outlining our view of exigencies which apply equally under our own constitution.