State v. Jordan

*404 LINDE, J.,

dissenting.

If the Court’s opinion is taken at face value, the majority appears prepared to hold that any arrest warrant, no matter for how trivial an offense, authorizes a police officer to force entry into any premises, no matter whose, to search for the person named in the warrant, if he has probable cause to believe that the person may be found there. Such a rule does not give the people of this state the protection against unreasonable searches that they sought to guarantee themselves in the State’s Bill of Rights. Or Const art I, sec 9. 1 Moreover, it is logically irreconcilable with our decision of last year that only under exigent circumstances may an officer force entry when he has perfectly valid reasons to make an arrest, though no arrest warrant. State v. Olson, 287 Or 157 , 598 P2d 670 (1979) and State v. Peller, 287 Or 255 , 598 P2d 684 (1979). I therefore dissent.

State v. Olson, supra, held that police officers may not enter a private home without a warrant to make an arrest merely upon probable cause to believe that the person they seek is in the home, except in "hot pursuit” or when there are exigent circumstances that require action before a warrant can be obtained. Similarly, State v. Peller, supra, held that although a police officer may have had probable cause to arrest the defendant and to believe he was within the residence, he could not without a warrant enter a residence to make the arrest unless "the exigencies of the situation made that course imperative.” 287 Or at 262. These decisions established that although officers are otherwise in a position to make a valid arrest, an unconsented entry into private living quarters invades a sepa *405 rate constitutional right, a right which may be invaded without prior judicial authorization only when exigent circumstances preclude such prior authorization.

The only distinction between the present facts and those in Olson and Peller is that there the officers themselves had valid grounds to arrest the person they sought, whereas in this case a warrant had been issued for Sandra Jordan’s arrest. This distinction cannot explain a different result as to forcing entry into someone’s residence without exigent circumstances. As far as a forced entry into private living quarters is concerned, one or the other origin of the officer’s authority to make the arrest is a distinction without a difference.

A police officer may arrest a person on his own authority when the officer has probable cause to believe either that the person has committed a felony or a major misdemeanor or traffic offense, or that the person has committed any other offense in the officer’s presence. ORS 133.310(1). 2 This authority depends on no special exigency when the arrest occurs in public or in a place where the officer has a right to be. If probable cause is found to exist, the arrest is as valid as an arrest under a warrant. Yet the objective of arresting someone whom the officer has unquestioned authority to arrest, even someone whom he may personally have seen committing a felony, does not alone allow him to enter a residence for the purpose. He needs the authorization of a judge or circumstances too urgent to await such an authorization. State v. Olson, supra, State v. Peller, supra.

*406 The existence of an arrest warrant as such, without more, adds nothing to the underlying premise for making an arrest. Of course it relieves the officer of personal responsibility for the decision to arrest, since he need not know anything about the reasons for it. But all that the issuing magistrate has determined in signing an unadorned arrest warrant is that he has been presented ex parte with evidence, frequently hearsay, that suffices to show probable cause for an arrest. Often he will have less reliable knowledge of the alleged grounds than an officer acting under ORS 133.310(1). Although the law encourages the use of citations in lieu of arrest, the warrant may be issued for a misdemeanor or a mere violation. ORS 133.110. 3 Thus, when a magistrate signs an unadorned warrant of arrest, and of arrest only, all he has considered is whether there is sufficient evidence of probable cause to take control of the named individual and bring her before the nearest magistrate. Unless the matter is brought to his attention, he has not made a judicial determination that the urgency of arresting this individual requires or justifies forcing entry into private quarters to search for her, nor whose private quarters shall be so entered and searched.

Yet it is exactly this justification that, under Olson and Peller , must have the advance approval of a magistrate unless exigent circumstances forbid. The existence of probable cause to make the arrest is not the issue as far as entry is concerned. Olson and Peller were decided on the premise that the officers had adequate cause to make a valid arrest. The existence of an arrest warrant adds nothing new to this.

*407 The majority expresses concern about imposing a "handicap” on police officers seeking to make an arrest. But the requirement of a prior judicial authorization in order to protect the private householder is no more of a handicap in this case than in Olson and Peller . The need to search a dwelling in order to make an arrest is exactly as great for a valid warrantless arrest as for one based on the existence of a warrant. If anything, the practical necessity often will seem greater when the officer has good grounds to arrest upon his own initiative without awaiting a warrant; yet unless the circumstances are exigent, he may not force entry. Again, the majority says that the owner or occupant of the dwelling is protected by the officer’s reasonable belief that the person to be arrested is on the premises, and further that the reasonableness of this belief is subject to judicial review. That, too, would be the same with or without an arrest warrant. But beyond this, the argument strikes to the core of the requirement of a warrant authorizing the entry, for the whole point of the requirement is that judicial responsibility be exercised before the entry, not in some hypothetical later proceeding.

The majority does not specify the time and the form of the judicial review which it invokes as the safeguard. If it means that if the person named in the warrant is found, and if evidence is seized, and if he is prosecuted, and if the search is then found to have been improper, that person may succeed in having the evidence suppressed, then the majority puts the cart before the horse. Legal guarantees against unjustified searches or seizures are not to be measured on the assumption that the search turns up an offender or evidence of an offense. It cannot be emphasized too often that the function and effectiveness of these guarantees must be judged from the standpoint of an ordinary, lawabiding person whose living quarters have been forcibly entered and searched, over her objection or in her absence. If the search proves to be *408 mistaken, must she nevertheless acknowledge the entry and search to be no invasion of her rights?

That is the criterion of a legal entry and search; yet judicial scrutiny upon a motion to suppress is irrelevant when the police found nothing. 4 Theoretically such a person can test the issue by an action in tort or under the civil rights laws. 5 But the point of the legal guarantees, and the measure of their effectiveness, is to provide the security of prior rather than subsequent judicial scrutiny except in an emergency. The essence of the protection is precisely that the right of the people to be secure in their homes is not to rest only upon the reasonable belief of police officers that they have probable cause to force entry. For such a measure of security, the bills of rights would not need an article I, section 9 or a 4th amendment; common trespass law would do. Instead, the bills of rights provided for judicial warrants in advance of entry to search.

It must not be forgotten that police officers may have probable cause to believe that a person named in an arrest warrant may be found in one of several places. The person is seen entering an apartment house. May officers insist on entry into each apartment to look for him, or force entry without exigent circumstances when no one is at home? An offender is reasonably believed to be hiding out in an isolated colony of private vacation homes or condominiums. May officers break into one after another without prior judicial authorization? It will often be natural to look for a person sought under a warrant in the homes of his parents, or his wife, or other relatives or friends. Are all of them subject to having their homes entered and searched, in their absence or over their protests, without a magistrate’s prior determination that this should be done? The position urged by the state *409 would extend to all these situations, and regardless whether the grounds for the arrest warrant are as grave as a homicide or as trivial as unpaid traffic fines. In State v. Bishop, also decided today, the police forced entry into the home of defendant’s mother. What they had was a warrant for the arrest for her son for not paying a number of traffic fines. The rule stated by the majority in the present case must be tested against the entirely possible hypothesis that Bishop was not at his mother’s home. When the law provided for issuing arrest warrants for traffic offenders, did it contemplate that such warrants authorized a search for the offender in someone else’s home, in the occupant’s absence or over her protests? 6

In order to provide the protection of article I, section 9, it does not follow that the warrant must be denominated a "search warrant.” Warrants to search for a person "for whose arrest there is probable cause or who is unlawfully held in concealment” indeed are specifically authorized under the search warrant statutes. ORS 133.535(4). 7 Often a magistrate’s grant of authority to search for a person in a specific dwelling, such as the residence in the present case, would reasonably follow this statute. But the statutory search warrant need not be the exclusive form of authorization. ORS 133.235(5)8 shows that the legislature did not intend it to be. Nor does the constitutional *410 guarantee put a label on the type of warrant: It demands only that the warrant describe the place to be searched as well as the person to be seized. As Judge Duniway recently wrote for the federal Ninth Circuit on this issue: "We think, however, that the distinction between a search warrant and an arrest warrant is an artificial one. The Fourth Amendment makes no such distinction.” United States v. Prescott, 581 F2d 1343, 1350 (1978). But in the presence of our own constitutional guarantee, Oregon citizens should not have to turn to federal law for protection.

Thus the state’s concern about a "two warrants” requirement to make an arrest is exaggerated. For constitutional purposes it is immaterial whether the judicial authorization to enter is contained in a separate document entitled a "search warrant” or in the same warrant authorizing the arrest. If officers who seek an arrest warrant want authority to enter and look for the suspected offender at a particular residence, they may ask to have this included in the warrant upon showing probable cause to expect the person to be found there. If they can show probable cause to search in more than one place, this too can be included in the initial warrant. If the information is acquired after the initial arrest warrant is issued, it can be amended or a new one issued. The constitutional warrant requirement is not a matter of forms. Its crux is that a magistrate has made a decision to authorize an unconsented entry and search, upon his independent judgment that the importance of making the arrest and the probability of finding the person to be arrested justify it. Only such a requirement can maintain judicial control of the kind of simultaneous or seriatim searches of private quarters in each of which the suspected offender might reasonably be found.

Other courts have discussed the circumstances that may permit an unconsented entry to make an arrest. These include (1) the nature and gravity of the offense *411 for which the person is to be arrested, (2) the officers’ knowledge that the suspect is armed and (3) that delay would pose a danger to others, (4) the strength of the reasons to believe that the person is in the premises being entered, (5) the likelihood that the person will escape if the entry is delayed, (6) the circumstance that the entry, though unconsented, is made peaceably rather than forced. See, e.g., Nilson v. State, 272 Md 179, 321 A2d 301 (1974), quoting Dorman v. United States, 435 F2d 385 (1970); State v. Johnson, 232 NW2d 477 (Iowa 1975). A combination of these circumstances may create an exigency justifying action before a warrant can be obtained, satisfying the rule of State v. Olson and State v. Peller discussed above. However, no such exigent circumstances are claimed to exist in this case. The warrant was to arrest Sandra Jordan for failure to appear on another charge. There was no apparent urgency to make the arrest. There is no claim that she was armed or dangerous or that, assuming she was in the house, she could have fled unnoticed while the officers awaited a further warrant. If the bare existence of an arrest warrant authorized this forced entry and search, it would authorize any forced entry and search upon probable cause anywhere. Such a rule cannot be reconciled with the rule of Olson and Peller, supra. Accordingly, the entry and search went beyond the officers’ authority and its fruits should have been suppressed.

Denecke, C. J., and Lent, J., join in this dissent.

Or Const art I, § 9:

"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.”

ORS 133.310(1):

"(1) A peace officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed:

"(a) A felony, a Class A misdemeanor, an unclassified offense for which the maximum penalty allowed by law is equal to or greater than the maximum penalty allowed for a Class A misdemeanor, or a major traffic offense as defined in subsection (5) of ORS 484.010; or

"(b) Any other offense in the officer’s presence.”

ORS 133.110:

"If the magistrate is satisfied that there is probable cause to believe that the person charged has committed the offense complained of, he shall issue a warrant of arrest. However, on a misdemeanor or violation charge or on a felony charge which in the discretion of the court may be considered a misdemeanor charge at the time sentence is imposed he may authorize a peace officer to issue and serve a citation as provided in ORS 133.055.”

Nor is the claim that an officer’s belief was unreasonable often likely to be persuasive when the officer in fact found the person to be arrested.

See ORS 30.260 - 30.300. A claim under 42 USC § 1983 is also a tort under ORS 30.265.

This issue was not reached in State v. Bishop because it had not been raised below.

ORS 133.535 states:

"The following are subject to search and seizure under ORS 133.525 to 133.703:

"(4) A person for whose arrest there is probable cause or who is unlawfully held in concealment.”

8 ORS 133.235(5) states:

"In order to make an arrest, a peace officer may enter premises in which he has probable cause to believe the person to be arrested to be present.”