State v. Olson

579 P.2d 277, 34 Or. App. 511, 1978 Ore. App. LEXIS 2523

• Court: Court of Appeals of Oregon
• Decided: May 30, 1978
• Docket: C 76-12-17439, DA 129621, CA 8276
• Status: Published

Opinions

SCHWAB, C. J.

This is an appeal by the State from an order suppressing evidence.

The Fourth Amendment to the United States Constitution has been interpreted as requiring police officers, before they enter a private residence, to "knock and announce.” Ker v. California, 374 US 23, 83 S Ct 1623, 10 L Ed 2d 726 (1963); State v. Valentine/Darroch, 264 Or 54, 504 P2d 84 (1972), cert den 412 US 948 (1973); State v. Gassner, 6 Or App 452, 488 P2d 822 (1971). The question in this case is what is the minimum federal constitutionally required "announcement.”

Three police officers went to defendant’s residence between 10 and 11 p.m. The trial court concluded that the officers had probable cause to arrest defendant for burglary; there is evidence to support this conclusion. In addition, we note that the same information gave the officers probable cause to search defendant’s residence for property stolen in a residential burglary reported a couple of hours earlier. The officers thus had the right to enter defendant’s residence upon either the basis of probable cause to arrest or probable cause to search. The problem involves their method of entry.

The officers knocked on defendant’s front door and announced their identity, "This is the sheriff’s office.” Receiving no response, they forced open the door and entered defendant’s residence. The officers never stated their purpose or reason for desiring entry before they in fact entered.

Courts have frequently stated that the constitutionally required pre-entry announcement must include the officer’s "presence and purpose”: e.g., State v. Valentine/Darroch, supra, 264 Or at 60, 66. See also, State v. Newman, 12 Or App 266, 270, 506 P2d 523 (1973). But we find no cases, decided on constitutional grounds, that really test that formulation with facts like we now have — announced identity and presence, but no announced purpose.¹

In the absence of controlling authority, we conclude that the question of the extent of the minimum announcement constitutionally required should be answered by looking to the purposes to be served by requiring any announcement. The Oregon Supreme Court has told us:

"* * * [I]t appears that the announcement requirement has been given federal constitutional status (1) to protect persons who might be injured by violent resistance to unannounced entries by law enforcement officers, and (2) to protect the householder’s right to privacy * * State v. Valentine/Darroch, supra, 264 Or at 60.

It might reasonably be contended that the more detail officers shout through a closed door before forcing entry, the greater will be the protection against violence and the greater will be the protection of privacy. And an individual officer’s assessment of how to do his job safely and effectively might in a given situation produce a more detailed pre-entry announcement than occurred in this case. But the question is not what might be desirable or undesirable in various situations; the question is what is the constitutionally required minimum announcement in all situations. We must draw a line.

We draw that line by holding the present announcement, "This is the sheriffs office,” constitutionally adequate. Viewed in light of the reasons for the rule, we fail to see how requiring more in all situations will significantly minimize the likelihood of violence or significantly add to the protection of privacy.²

Reversed and remanded.

1 There is a federal knock-and-announce statute, and many states have knock-and-announce statutes. We do not find decisions applying these statutes helpful in resolving a constitutional question.

There is also an Oregon knock-and-announce statute. It is irrelevant to the present suppression issue because the Supreme Court has held that evidence obtained in violation of that statute is not subject to suppression. State v. Valentine/Darroch, 264 Or 54, 504 P2d 84 (1972), cert den 412 US 948 (1973).

There is no Oregon constitutional issue. Although the Oregon Supreme Court has frequently stated that similar provisions of the state and federal constitutions are to be given similar interpretations, State v. Flores, 280 Or 273, 570 P2d 965 (1977); State v. Florance, 270 Or 169, 527 P2d 1202 (1974), the court deviated from that approach in State v. Valentine/Darroch, supra, finding no knock-and-announce requirement in the Oregon Constitution.

2 Defendant claims there is a second issue in this case: whether, absent exigent circumstances, a warrant is required to arrest a person in his home. See, State v. Girard, 276 Or 511, 514, 555 P2d 445 (1976). However, no such contention was advanced by defendant’s written motion to suppress. There was some reference to the warrant issue during arguments to the trial court, and the court’s findings — drafted by defense counsel — do refer to it. But on this record we simply cannot tell whether the parties before the trial court ever really identified the warrant question as a separate issue, and therefore we decline to reach it. On remand, we do not intend anything in this opinion to foreclose further exploration of the warrant issue.