State v. Wynn

792 P.2d 1234, 102 Or. App. 1, 1990 Ore. App. LEXIS 548

• Court: Court of Appeals of Oregon
• Decided: May 30, 1990
• Docket: 10-88-03921; CA A60476
• Status: Published

Opinions

WARREN, J.

Defendant appeals his conviction for possession of a controlled substance. ORS 475.992. He assigns as error the denial of his motion to suppress evidence found after police arrested him in his home without a warrant.¹ We reverse.

We summarize the facts consistently with the trial court’s findings. Steviann Ritter, defendant’s former girlfriend, called the Cottage Grove Police Department at 7:15 a.m. to report that she had been kidnapped. The dispatcher broadcast the report over the police radio, naming defendant as the suspect. Officers Mudrick and Lorange responded to the call. Ritter told the officers that she had just escaped from defendant’s house, where he was passed out after having taken methamphetamine the day before. She said that defendant kept some methamphetamine by his bed. Lorange left after about ten minutes, because Mudrick felt that Lorange was not needed. Mudrick drove to the station to get a camera and then drove back to Ritter’s house to photograph her injuries and complete the interview. He returned to the station again and planned defendant’s arrest with several officers for about 15 or 20 minutes. The officers went to defendant’s home, entered and arrested him without a warrant at 8:57 a.m. After the arrest, they searched his bedroom and found marijuana and methamphetamine.

Mudrick had decided to arrest defendant after his initial interview with Ritter. He was concerned, however, that defendant knew the police were coming, because Mudrick had heard from another officer that defendant had said that he and his father listened to police broadcasts to gather evidence for a harassment action. Mudrick knew also that defendant intended to move from the house at which he was staying and had already moved most of his belongings. Mudrick testified that he had never heard of a telephonic warrant and had thought that it would take five hours to get a warrant.

A deputy district attorney testified that a telephonic warrant could have been obtained in 45 minutes to an hour. He stated that an assistant district attorney is on call at all times to assist officers in getting warrants, and a district court judge is available at all times to issue warrants.

Exceptions to the warrant requirement are narrow, and the state has the burden of proving probable cause and that exigent circumstances exist that outweigh the strong interest in requiring a warrant. State v. Peller, 287 Or 255, 598 P2d 684 (1979); ORS 133.693(4). One relevant consideration is whether the police attempted to get a telephonic warrant, and it is no excuse that police are unfamiliar with the procedure. State v. Wise, 305 Or 78, 82 n 3, 749 P2d 1179 (1988); State v. Roberts, 75 Or App 292, 706 P2d 564 (1985).

The state argues that a warrant was excused because of the danger that defendant would attempt to escape or destroy evidence when he heard his name mentioned over the radio. The mere possibility that a suspect may escape does not provide exigent circumstances; evidence must be presented that the suspect was, in fact, so inclined. State v. Peller, supra, 287 Or at 264; State v. Court, 81 Or App 598, 726 P2d 1205 (1986). In State v. Girard, 276 Or 511, 513, 555 P2d 445 (1976), for example, police saw the defendant leaving the house with several items and heard a voice say, “Hurry, they are coming” when they knocked on the door. That was held to permit a conclusion that exigent circumstance existed.

The trial court concluded that defendant was motivated to flee, because he was in the process of changing residences and because he probably had heard the dispatcher naming him as a suspect. Although we are bound by the trial court’s findings of fact, we are not bound by the trial court’s conclusion that those facts established exigent circumstances. State v. Peller, supra, 287 Or at 260. The fact that defendant was in the process of changing residences did not excuse the requirement of a warrant when there was no evidence that he was moving to escape capture. To the contrary, the trial court found that defendant was moving because the owner of the home had asked him to move out. If the officers were concerned that defendant would be gone before they could get a warrant, they could have watched the house for the time it would have taken to get the warrant. 287 Or at 265.

The trial court’s finding that defendant probably had heard the dispatch is not supported by the record. The only evidence on that question was the officer’s testimony that, at some indefinite time in the past, defendant had said he and his father listened to police broadcasts to prepare for a harassment action. The state presented no evidence of when defendant made that statement. When last seen by Ritter, shortly before she contacted the police, defendant was passed out. There is no indication that defendant was listening to a scanner or had a scanner nearby. At the most, the statement was some evidence that defendant could have heard the dispatch, but, standing alone, it did not make it likely that he had heard it. Speculation about what defendant might have done if he knew the crime had been reported does not establish exigent circumstances. State v. McMurphy, 48 Or App 327, 616 P2d 1203 (1980), aff’d 291 Or 782, 635 P2d 372 (1981).

Reversed and remanded for a new trial.

1 Defendant’s only challenge to the search and seizure is that it was warrantless.