State v. Hermanson

377 P.3d 688, 278 Or. App. 570, 2016 Ore. App. LEXIS 649
CourtWashington County Circuit Court, Oregon
DecidedJune 2, 2016
DocketC141751CR; A159752
StatusPublished

This text of 377 P.3d 688 (State v. Hermanson) is published on Counsel Stack Legal Research, covering Washington County Circuit Court, Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hermanson, 377 P.3d 688, 278 Or. App. 570, 2016 Ore. App. LEXIS 649 (Or. Super. Ct. 2016).

Opinion

SERCOMBE, P. J.

Defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.011, and other crimes. He moved to suppress evidence obtained after police officers entered a residence, without a search warrant, to seize him and obtain evidence of his intoxication. The trial court granted the motion to suppress. It concluded that the state failed to prove that the warrantless entry was justified under Article I, section 9, of the Oregon Constitution by the exigency of the circumstances. The state appeals. We agree with the trial court that the state failed to prove that it could not have obtained a warrant in sufficient time to avoid the loss of critical evidence and, accordingly, affirm.

We state the facts as drawn from the explicit and implicit findings of the trial court and consistently with its ruling on defendant’s motion to suppress. State v. Shaff, 343 Or 639, 641, 175 P3d 454 (2007); Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). At 7:12 p.m. on July 20, 2014, Everett Welker reported through a 9-1-1 call that defendant had just crashed his car into Welker’s vehicle. According to Welker, defendant seemed to be impaired and smelled of alcohol, and, after quickly exchanging identification with Welker, defendant had left the scene in his car. Based on that report, Beaverton patrol officer Warner responded to the scene of the accident. There, Welker reiterated that defendant appeared intoxicated and described defendant’s car and the direction that it had gone.

Warner and two other police officers pursued defendant in that direction and located defendant’s car nearby, parked askew next to a garage of an apartment. At 7:32 p.m., Warner and the other police officers knocked on the apartment door and a woman told them that defendant was inside. Warner asked to speak to defendant. The woman replied, “yes,” and shut the door. The officers knocked on the door again, and the woman again opened the door. She said that defendant was in the shower and the officers would have to wait. Warner explained that he was investigating whether defendant had driven while intoxicated and demanded to speak to defendant immediately. The woman shut the door. [573]*573A few minutes later, at approximately 7:42 p.m., Warner knocked again, the woman opened the door, and the police officers entered the apartment.

Defendant exhibited the usual signs of alcohol intoxication—red and watery eyes, slurred speech, unsteady gait, and the odor of alcohol. Warner administered the horizontal gaze nystagmus test, which indicated that defendant was under the influence of alcohol. Defendant was arrested and transported to jail, where he refused to take a Breathalyzer test. Warner testified that he “wrote up a search warrant [for a blood draw] and went and had a judge review it and he signed the warrant.” That process took approximately 90 minutes. Defendant’s blood was drawn approximately three hours after the 9-1-1 call.

Defendant moved to suppress the evidence of intoxication that resulted from the warrantless entry into the apartment. He argued that the entry was unlawful as an unreasonable search under Article I, section 9, and the Fourth Amendment to the United States Constitution. According to defendant, the search was unreasonable because it was neither authorized by a warrant nor immediately necessary to avoid the loss of significant evidence. The state responded that any delay in obtaining the dissipating evidence of intoxication would have resulted in the loss of significant evidence and that the search was justified by those exigent circumstances, no matter how long the delay might be.

The trial court concluded that the exigency, in the circumstances of a home search and seizure for evidence of intoxication, was not presumptive, and that it had not been proved by the state. The court reasoned:

“[I]n order to get into the residence there has to be a showing that * * * a warrant is not realistic here. * * * And what I’ve heard here the—the evidence that I’ve heard here, the testimony, I’m just not persuaded that—again that that is not an option here. I’m just not convinced.”

On appeal, the parties reiterate the arguments made below. The state contends that any delay in collecting dissipating evidence of intoxication results in a loss of [574]*574evidence and that the possibility of any such loss in most cases justifies a warrantless search of defendant’s person or residence as reasonable because it is immediately necessary. Defendant counters that, while that kind of presumed exigency might justify a warrantless blood draw, the more intense intrusion into a residence requires actual and particular proof of the exigency. Specifically, defendant submits that to justify a warrantless entry into a home to obtain intoxication evidence, the state must show how long it would take to obtain a search warrant and that the police had an objectively reasonable belief that the evidence would be lost within that specified time. We agree with the trial court that the state did not present evidence to meet that burden of proof.1

In State v. Machuca, 347 Or 644, 227 P3d 729 (2010), in determining whether a search warrant was necessary before drawing the blood of a suspect arrested for DUII, the Oregon Supreme Court concluded that “the evanescent nature of a suspect’s blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw of the kind taken here.” Id. at 657. Subsequent cases have confined any presumed exigency for the collection of blood alcohol evidence to warrantless blood draws from suspects arrested for DUII and to field sobriety tests. Instead, “the issue of exigency should be assessed in light of the reasonableness of the search in time, scope, and intensity.” State v. Mazzola, 356 Or 804, 819-20, 345 P3d 424 (2015) (authorizing warrantless administration of field sobriety tests, a “limited intrusion,” for evidence of drug impairment upon a person who has been validly stopped and subject to arrest for DUII).

Thus, in State v. Sullivan, 265 Or App 62, 78, 333 P3d 1201 (2014), we declined to extend Machuca's exigency rule for blood draws from arrestees to a “fundamentally different type of government intrusion, a home entry.” In order to justify a warrantless home entry, we required “some [575]*575showing [by the state] as to how long it would have taken to obtain a warrant under the circumstances” so as to determine “to what degree—if any at all—that the potential evidence sought would have been ‘sacrificed.’” Id. at 80; see also State v. Rice, 270 Or App 50, 346 P3d 631, rev allowed, 357 Or 550 (state’s petition), rev den, 357 Or 743 (defendant’s petition) (2015) (speculative evidence on whether a warrant could be obtained failed to prove exigency for warrantless home search).

We reiterated that rule in State v. Ritz, 270 Or App 88, 94, 347 P3d 1052, rev allowed, 357 Or 550 (2015)—also involving a warrantless home entry—stating that, “in cases involving the warrantless entry into a home, our analysis turns on an examination of whether a warrant could reasonably have been obtained without sacrificing evidence of the crime of DUII.” We further explained:

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Related

State v. MacHuca
227 P.3d 729 (Oregon Supreme Court, 2010)
State v. Shaff
175 P.3d 454 (Oregon Supreme Court, 2007)
Missouri v. McNeely
133 S. Ct. 1552 (Supreme Court, 2013)
Ball v. Gladden
443 P.2d 621 (Oregon Supreme Court, 1968)
State v. Mazzola
345 P.3d 424 (Oregon Supreme Court, 2015)
State v. Sullivan
333 P.3d 1201 (Court of Appeals of Oregon, 2014)
State v. Baucum
343 P.3d 235 (Court of Appeals of Oregon, 2015)
State v. Rice
346 P.3d 631 (Court of Appeals of Oregon, 2015)
State v. Ritz
347 P.3d 1052 (Court of Appeals of Oregon, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
377 P.3d 688, 278 Or. App. 570, 2016 Ore. App. LEXIS 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hermanson-orccwashington-2016.