State v. Tweed

663 P.2d 38, 62 Or. App. 711, 1983 Ore. App. LEXIS 2576
CourtCourt of Appeals of Oregon
DecidedApril 27, 1983
DocketC81-10-35462; CA A23500; C81-10-35461; CA A23753
StatusPublished
Cited by12 cases

This text of 663 P.2d 38 (State v. Tweed) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tweed, 663 P.2d 38, 62 Or. App. 711, 1983 Ore. App. LEXIS 2576 (Or. Ct. App. 1983).

Opinions

[713]*713BUTTLER, P. J.

The state appeals a pretrial order suppressing evidence seized pursuant to a search warrant on the ground that the officers executing the warrant violated the knock- and-announce requirement imposed by ORS 133.575(2) and the Fourth Amendment. We affirm.

At approximately 9:30 p.m. on August 25, 1981, Portland Police Officer Mason, who was assigned to the Narcotics Detail of the Drug and Vice Division, obtained a valid warrant authorizing the search of defendants’ residence and the person of defendant Catherine Tweed for marijuana, barbiturates and items of identification. After obtaining the warrant, Mason and two other plainclothes officers bought a six-pack of beer at approximately 10 p.m. They testified that they purchased the beer as a “cover” for dealing with other persons whom they were investigating for possible narcotics violations. All three officers drank beer — about “a beer and a half’ in the case of two of them — prior to executing the warrant, although they were “pretty sure” that they would execute it that night.

At approximately 12:15 a.m. on August 26, the three officers were joined by four more plainclothes officers and one uniformed officer. At about 12:30 a.m., the eight officers approached defendants’ home. Two plainclothes officers went to the back door, and Mason knocked on defendants’ front door with the remaining officers standing behind him. Eric Tweed opened the door slightly to see who was there. He did not recognize the person at the door, so he opened it farther, at which time Mason stepped through the door into the hallway, displayed a badge and then pulled an automatic weapon from beneath his coat and pointed it at Eric. Eric testified that while Mason went through those motions, he appeared to be either very nervous or intoxicated, because the gun was shaking. Mason said nothing before entering the house, and defendants did not then see the only uniformed officer, who remained outside. Catherine Tweed testified that she heard no one identify himself as a police officer or state that he had a search warrant until the officers were inside. Both defendants testified that they thought they were being robbed.

[714]*714The other officers followed immediately behind Mason and dispersed in different directions throughout the house to look for weapons; they found none. Mason held the gun on Eric for “about half a minute” before putting it away. Eric asked if, in fact, they were police and whether they had a search warrant. He had not seen the uniformed officer prior to that time. After the preliminary security search for weapons was completed, Mason read the search warrant, at least in part, and the search for contraband followed, resulting in the seizure of a large quantity of marijuana in a bedroom.

Mason smelled of alcohol, according to both Eric and the uniformed officer, tripped without apparent reason as he attempted to hand Catherine the warrant, and his speech was slurred. Eric did not know if any of the other officers were intoxicated. He testified that he was afraid of Mason because he had displayed a firearm and appeared to be intoxicated; he agreed to step outside on the porch for an interview with Mason only if accompanied by the uniformed officer.

Although the trial judge did not make detailed findings of fact,1 he found that the officers had no reason to believe that they were about to execute the warrant on a major drug ring, that large quantities of narcotics would be found or that the occupants of the house would be armed or dangerous. He also found that the officers had failed to comply with the “knock-and-announce” rule and that there [715]*715were no exigent circumstances to justify their non-compliance. Implicit in the court’s explanation of its ruling is the finding that the violation was not merely a technical one, but violated defendants’ Fourth Amendment rights as well and was sufficiently aggravated that suppression was justified for both the statutory and constitutional violations.

The “knock-and-announce” rule has roots in the Fourth Amendment, Ker v. California, 374 US 23, 83 S Ct 1623, 10 L Ed 2d 726 (1963), and is codified in ORS 133.575(2)2 (with respect to search warrants) and in ORS 133.235(6)3 (with respect to arrest warrants). It requires that officers executing a warrant identify themselves and state their authority and purpose prior to entering the premises. Although the state concedes that the trial court’s finding that the requirements of the rule were violated is supported by the record, it contends that it was only a technical one that does not require suppression of the evidence seized, relying on State v. Valentine/Darroch, 264 Or 54, 66-69, 504 P2d 84 (1972), cert den 412 US 948 (1973), and State v. Bishop, 288 Or 349, 605 P2d 642 (1980).

In both of those cases, the court treated the violations as statutory, not rising to the level of a violation of either the Oregon or federal Constitutions, and declined to order suppression. They have been cited for the proposition that suppression of evidence is not justified for a statutory violation by the police, most recently in State v. Brock, 294 Or 15, 653 P2d 543 (1982) (nighttime search authorized in violation of statute). It has been thought that suppression in such cases would result in an overdose of deterrence. That approach, however, has not been uniform, and it has qualifications.

[716]*716Since State v. Valdez, 277 Or 621, 561 P2d 1006 (1977), evidence seized in violation of ORS 131.615 (authorizing police to stop a person if the officer reasonably suspects the person has committed a crime) has been suppressed, because the purpose of the statute is to protect “interests of the kinds which are protected by the Fourth Amendment to the United States Constitution and by Article I, section 9, of the Oregon Constitution.” 277 Or at 629. But see State v. Ponce, 54 Or App 581, 635 P2d 1042 (1981), rev den 292 Or 568 (1982). Yet the Oregon stop statute (ORS 131.615) is more restrictive than the Fourth Amendment requires, Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968), and, therefore, may be violated without necessarily encroaching on Fourth Amendment rights.

On the other hand, the “knock-and-announce” statute is a codification of the requirements of the Fourth Amendment as enunciated by the United States Supreme Court in Ker. Although it is true that the Oregon Supreme Court held in both Valentine/Darroch and Bishop that the “knock-and-announce” requirements are not a part of the protection afforded by Article I, section 9, of the Oregon Constitution, the fact that a statutory violation may infringe only the federal constitution would not seem to offer a viable distinction from Valdez. We understand Valdez

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State Ex Rel. Juvenile Department v. Qutub
706 P.2d 962 (Court of Appeals of Oregon, 1985)
State v. Tweed
663 P.2d 38 (Court of Appeals of Oregon, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
663 P.2d 38, 62 Or. App. 711, 1983 Ore. App. LEXIS 2576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tweed-orctapp-1983.