# State v. Brock

> Court of Appeals of Oregon · September 8, 1981 · 53 Or. App. 785

URL: https://www.frixlaw.com/law-library/cases/9602355

## Case

- **Full name:** STATE OF OREGON, Respondent, v. DALE LAVONNE BROCK, Appellant
- **Court:** Court of Appeals of Oregon
- **Decided:** September 8, 1981
- **Citations:** 53 Or. App. 785; 633 P.2d 805; 1981 Ore. App. LEXIS 3249
- **Precedential status:** Published
- **Opinion:** Dissent by Gillette
- **Judges:** Richardson, Buttler, Gillette, Van Hoomissen, Warren, Young
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9602355

## How later opinions describe it (automated extraction)

- applying Searp reasoning to validate nighttime search

## Opinion text

GILLETTE, J.,
dissenting.
The issue in this case which is of transcendental importance is the issue of the nighttime search.
The majority holds, correctly, that a showing of some kind of special circumstances justifying a search in the nighttime before such a search may be authorized "is inherent in the statute.” 53 Or App at 793. The majority then says, equally correctly, that "[t]he record in this case does not disclose special circumstances justifying a nighttime search.” 53 Or App at 794. However, the majority then goes on, in the face of this demonstrated violation of statutory directive and purpose, to hold that nothing can be done about it.
Nothing can be done about it, the majority holds, because the only sanction that would matter — exclusion of the evidence seized — is, in its view, inappropriate. I most strongly disagree.
The problem of sanction is an eternal puzzle. Where the improper conduct of the state is directly connected with the seizure of evidence in a criminal case, the obvious sanction is suppression. Suppression, however, is a harsh remedy, and one which should not be resorted to in any save those cases in which its use is clearly necessary to further a significant public policy. See State v. Quinn, 290 Or 383, 397 , 623 P2d 630 (1981).
The Oregon Supreme Court has generally held that evidence seized in violation of a state criminal statute will only be suppressed when the violation rises to the level of a federal constitutional violation. See, e.g., State v. Bishop, *806 288 Or 349 , 605 P2d 642 (1980); State v. Valentine/Darroch, 264 Or 54 , 504 P2d 84 (1973), cert den 412 US 948 (1973). This rule was developed and has been consistently applied in cases where the police have failed to comply fully with the "knock and announce” statute before entering premises to execute a search warrant. A review of the analysis used in connection with the "knock and announce” statute is instructive here.
The purposes of the "knock and announce” rule are said to be
"* * * (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 .
See also, State v. Bishop, supra; State v. Miller, 43 Or App 421 , 602 P2d 1141 (1979). In "knock and announce” cases, the court has ordered that evidence be suppressed only when the method of entry violated both purposes of the knock and announce rule, causing the statutory violation to rise to the level of a constitutional violation. See State v. Bishop, supra.
ORS 135.565(3) has a dual purpose parallel to that of the knock and announce statute:
1. The legislature has recognized that a search at night is a greater intrusion upon an individual’s right to privacy than one conducted during daylight hours. The United States Supreme Court has found nighttime searches to be peculiarly offensive.
"[I]t is difficult to imagine a more severe invasion of privacy then (a) nighttime intrusion into a private home.” Jones v. United States, 357 US 493, 498 , 78 S Ct 1253 , 2 L Ed 2d 1514 (1958).
Thus, while the provision limiting nighttime searches is not in and of itself of constitutional stature, it nevertheless furthers the fundamental purposes of the Fourth Amendment. See United States v. Searp, 586 F2d 1117, 1124 (6th Cir 1978), cert den 440 US 921 (1979).
2. As the majority acknowledges, the Commission which proposed the language which became ORS *807 133.565(3) also recognized that night searches are "more likely to create the terror that precipitates gun battles.” Thus, the statute before us, like the knock and announce rule, seeks to protect persons who might be injured as a consequence of violent resistance to searches initiated during the nighttime hours. See State v. Callaghan, 33 0r App 49, 576 P2d 14 (1978), rev den 284 Or 1 (1978).
In view of the fact that the statute before us is an elaboration upon and is in furtherance of recognized constitutional principles, and further in view of the fact that it does not impose a mere technical requirement or ministerial duty, I conclude that the sanction of suppression of evidence is an appropriate one to use in certain cases of violation of ORS 133.565(3). I say "certain” cases because, as I view it, the statutory, rather than constitutional, nature of the duty imposed here leaves the courts free to limit the instances in which the sanction of suppression is imposed to those in which the full range of the statutory purposes have been violated. See State v. Valentine/Darroch, supra. I turn to a consideration of this final question.
In the case before us the warrant was served shortly after 10 p.m., the statutory cutoff time between day and nighttime searches; it was not executed during the small hours of the night. The defendant was in custody, and it is not clear if the police knew that someone might be present at the house. However, the state acknowledged to the trial court at the omnibus hearing (and the evidence at trial showed) that defendant’s girlfriend, who lived with the defendant, was present at the time of the search. Because the house was not unoccupied or abandoned, the search at night was significant. It invaded, without proper authorization, an occupant’s privacy in the nighttime. The possibility of a violent response existed. Under these circumstances, where the statute is an elaboration of constitutional principles and where those principles have been violated, suppression is the only way to vindicate the statutory policy.
We have previously held that a related statute should be enforced by the sanction of suppression. In State v. Weaver, 41 Or App 201 , 598 P2d 308 (1979), police officers had sought a warrant to search certain premises for cocaine when they also expected to find marijuana. They *808 had not disclosed to the magistrate their expectation concerning the marijuana, which was subsequently discovered and seized during the search. The defendant in Weaver moved to suppress the marijuana as having been seized in violation of ORS 133.585, the statute governing the scope of searches pursuant to a warrant, which provides, in pertinent part:
"* * * If in the course of the search the officer discovers things, not specified in the warrant, which he has probable cause to believe to be subject to seizure under ORS 133.535 which he did not have probable cause to expect to find, he shall also take possession of the things discovered.” (Emphasis supplied.)
In spite of the fact that no constitutional issue was involved, the trial court suppressed the marijuana and, on appeal, this court affirmed. What we said there applied just as fully here:
"If evidence seized in violation of ORS 133.585 is not, for that reason, inadmissible, then there is presently no practical means of enforcing the rules stated in [the statute]. * * *”
Weaver is in point here, yet the majority has not even seen fit to discuss it.
There have been other occasions when Oregon appellate courts have suppressed evidence because of a statutory violation. See State v. Fogle, 254 Or 268 , 459 P2d 873 (1969) (lack of statutory certification of equipment requires suppression of breath test); State v. Valdez, 277 Or 621 , 561 P2d 1006 (1977) (violation of "stop” statute required suppression of resulting evidence). The rationale of these cases — that some statutory violations require suppression of evidence obtained by means of the violation — applies with equal (or even greater) force here. Defendant’s motion to suppress should have been granted.
The majority’s reliance on United States v. Searp, 586 F2d 1117 (6th Cir 1978) is misplaced. As even the material quoted by the majority from that opinion shows, the court there considered suppression an appropriate sanction under certain circumstances. That is all I urge here— not suppression in every case, but suppression where violation of the statute leads to the invasion of interests the *809 statute was intended to protect. State v. Weaver, supra; see also, State v. Broadway, 599 SW2d 721 (Ark 1980).
It is not our function to substitute our own policy judgments for those of the legislature. We all agree on that principle in the abstract but sometimes unintentionally depart from it in practice. I suggest, most respectfully, that the majority has done that here. We agree on what the statute requires. 1 The statute recognizes that nighttime searches are onerous and potentially dangerous. The statute contemplates that, before such a search can occur, (1) the judge will be asked for permission to search at night, (2) the judge will consider the nature of the search requested in light of what is sought and the other circumstances surrounding the case, and (3) the judge will authorize the search at night only where the facts warrant this sort of intrusion. However, this legislative purpose is totally thwarted unless the failure to go through the steps just outlined has a consequence.
Suppose a search is conducted at night when (1) it was not even asked for, but the judge signed a printed endorsement on the warrant, or (2) the search is for the life-sized statue of an elephant, or (3) the judge authorizes it "because it is Thursday?” The majority sees no problem; I do: I see a protection the legislature gave our citizens diminished or altogether destroyed. I have higher regard them that for legislative purpose. 2 Where, as in this case— and as the majority repeatedly acknowledges — there was no need for this nighttime search, I would suppress the evidence it produced.
I dissent.
*810 Roberts, Warren and Young, Judges, join in this dissent.
That is, most of us do. The specially concurring opinion of Buttler, J., takes a different view which purports to avoid the entire problem. It does so, however, only by ignoring the fact that this statute was intended to be an "important innovation.” The only innovation which would result from the specially concurring opinion is the presence of two signatures on a warrant, instead of one. There is no justification for turning this statute into a nullity.
The specially concurring opinion takes the balance of this comí; to task for what that opinion views as 'legislating’ with respect to the statute under the rubric of determining legislative purpose. The opinion’s conception of the functions of the legislative and executive branches of government is refreshingly accurate, given its utter disregard for the judicial role as the interpreter of law.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9602355. Public record. Not legal advice.