Opinion

State v. White

  • 18 Or. App. 352
  • 525 P.2d 188
  • 1974 Ore. App. LEXIS 976
Court
Court of Appeals of Oregon
Filed
Aug 12, 1974
Status
Published
Author
Port
On the bench
Schwab, Port, Tanzer
Cited by
5 cases
Authority
More cited than 6.7%

The opinion

PORT, J.,

specially concurring.

I concur in the result. I believe that the police had reasonable cause, because of the totality of the circumstances relating to the extraordinary volume of noise disturbance of the surrounding area, to approach the private home to investigate the reason therefor. Here such activity within the home clearly extended into public areas and, indeed, unreasonably violated the reasonable expectations of privacy of other persons in private premises over a two-block area at a late hour of the night or early morning. Thus, entry onto the front porch was, whatever the declared purpose of the police, reasonable. Upon such entry, the extreme volume of the noise was such that pro *356 longed efforts to attract a response from persons within by the police, shouting and hammering on the door, went unheeded, and thus presumably unheard. Under such unusual and exigent circumstances, the entry into the house in the manner used here was no more unreasonable than had the police been drawn to the premises by signs of a dwelling on fire and entered under similar circumstances.

It has long been the rule that where there is probable cause to arrest a person, the fact that the police arrest him for the wrong reason, i.e., one for which probable cause does not exist, does not invalidate the arrest nor a reasonable search incident thereto. State v. Cloman, 254 Or 1, 12 , 456 P2d 67 (1969); State v. Somfleth, 8 Or App 171 , 492 P2d 808 , Sup Ct review denied (1972). Thus, the entry onto the front porch and also into the dwelling were lawful on these unusual facts. Following the entry into the home, the contraband was in plain view and thus its seizure was valid.

Accordingly, I do not find it necessary to decide whether the opinion of the majority is consistent with the rationale of Coolidge v. New Hampshire, 403 US 443 , 91 S Ct 2021 , 29 L Ed 2d 564 (1972) and cases therein discussed. Nor do I understand that, as the court seems to imply, a warrantless entry into and search of a private home is to be measured by the same standards as those governing the seizure of evidence in a motor vehicle. See, Cady v. Dombrowski, 413 US 433, 439 , 93 S Ct 2523, 2537 , 39 L Ed 2d 706 (1973).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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