Petition — Niedermeyer v. Oregon

8071367

Office-Supreme Court, U.S.

FILED

FEB 4% 1088

KANDER L. STEVAS,

Ai c

ed

CLERK

ae

IN THE SUPREME COURT OF THE UNITED

STATES

OCTOBER TERM, 1980

LINUS J. NIEDERMEYER,

Petitioner,

V.

STATE OF OREGON,

Respondent.

On Writ of Certiorari to the Supreme Court

for the State of Oregon

Petition for Certiorari -- Criminal Case

WILLIAM V. BIEREK

Suite 210, Condon Building

5901 S.W. Macadam Avenue

Portland, Oregon 97201

Telephone: (503) 226-2488

Attorney for Petitioner

JAMES M. BROWN, Attorney General

WALTER L. BARRIE, Solicitor General

JAMES M. MOUNTAIN, JR.

Assistant to the Attorney General

100 State Office Building

Salem, Oregon 97310

Telephone: (503) 378-4402

Attorneys for Respondent

QUESTION PRESENTED

Can a police officer make a forcible

entry into a private home in order to make a

misdemeanor arrest without a warrant, without

hot pursuit, and without identifying himself

after he has hailed a suspect in front of the

home and the suspect retreats inside?

TABLE OF CONTENTS

QUESTION PRESENTED

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

STATEMENT OF THE CASE

ARGUMENT

A. Conflict with Applicable

Decisions of this Court

B. Conflict with the Decisions

of Other State Courts of Last

Resort and Federal Courts of

Appeal

CONCLUSION

FOOTNOTES

APPENDIX

Opinion of Court of Appeals

Order of the Supreme Court

Denying Petition for Review

(letter)

Judgment and Mandate of Court of

Appeals

Findings of Fact and Conclusion

of Law of the Trial Court

ii

19

20

2-10

11

12

13-16

TABLE OF AUTHORITIES

Page

Cases

Brown v. Illinois, 422 U.S.

590, 605, 95 $s.

Ce. 2254, 2262, 45 L. Eda.

2a 416 (1975) 15

Dorman v. United States,

140 U.S App D.c. 313,

319-320, 435 F2d 385

(1970) 16

Payton v. New York, ___ U.S.

» sow 8. Ce. 1371,

1381, 63 L. Ed. 2a

639 (1980). 14, 15

State v. Allison, 298 N.C.

135, 257 S.E. 2nd 417,

421 (1979) 16

State v. Love, 123 Ariz. 157,

598 P2d 976, 978 (1979) 16, 17, 18

State v. Niedermeyer, 48 Or App

665, 670, 617 P2da 911,

(1980) >, i7

State V. Wesson, 40 Or App 99,

591 P2d 755 (1979)

United States v. Edwards,

602 F2d 458, 468 (C.A.

lst 1979) 15

United States v. Houle,

603 F2d 1297, 1300

(CA 8th, 1979) 15

United States v. Santana, 427

US 38, 96 S. Ct. 2406,

49 L. Ed. 2d 300 (1976) 8, 10, 11, 12

kas Bs hee 38

Lvs oe

iii

United States v. Watson, 423

U.8. 411, 96 &. Ce. 826,

46 L. Ed 2d 598, (1976)

United States v. Williams,

612 F2d 735, 739 (CA 3rd

1980)

Vale v. Louisiana, 399 U.S.

a0y,.a0¢ Be &. Ce. 1969,

1972, 20 L. Ed. 2d 409

(1970)

Warden v. Hayden, 387 U.S

294, 298-200, 87 S. Ct.

1642, 1646, 18 L. Ed 2a

782 (1967)

Constitutional and Statutory

Provisions

United States Constitution,

Fourth Amendment

Fourteenth Amendment

Oregon State Constitution,

Article I, §9

28 U.S.C. §1254(1)

ORS 133.235(5)

ORS 484.100(1)

ORS 487.010(5)(e)

Pe 487.555 (1) (2)

(3) (4)

ORS 487.530(4)

48 Or App 665, 617 P2da 911

(1980

§120.1 Model Code of Pre-

Arraignment Procedure

iv

12

16

9, 10

10, ll, 12

12

IN THE SUPREME COURT OF THE UNITED

STATES

OCTOBER TERM, 1980

LINUS J. NIEDERMEYER,

Petitioner,

Ve

STATE OF OREGON,

Respondent.

Petition for Certiorari -- Criminal Case

OPINION BELOW

The order of the Oregon State Supreme

Court denying this petitioner's petition for

review (Appendix, infra, p. 11) is

~

ND

reported in Or , (1980). The

Opinion of the Oregon State Court of Appeals

(Appendix, infra, p.p.2-19) is reported in

48 Or App 665, 617 P2d 911 (1980).

JURISDICTION

The order of the Oregon State Supreme

Court denying review (Appendix, infra,

p.ell), was entered on December 16, 1980.

Re-hearing was not sought. The jurisdiction

of this court is invoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL PROVISION AND STATUTES

INVOLVED

1. The Fourth Amendment, United States

Consti’ ution, which provides:

"SECURITY FROM UNREASONABLE

SEARCHES AND SEIZURES. The right

of the people to be secure in

their persons, houses, papers, and

effects, against unreasonable

searches and seizures, shall not

be violated, and no Warrants shall

issue, but upon probable cause,

Supported by Oath or affirmation,

and particularly describing a

place to be searched, and the

persons or things to be seized.

2. The statute under which petitioner

was prosecuted, though nothing turns on its

terms, is ORS 487.555, which provides

as follows:

"487.555 FLEEING OR

ATTEMPTING TO ELUDE A POLICE

OFFICER. (1) A driver of a motor

vehicle commits the crime of

fleeing or attempting to elude a

police officer if, when given

visual or audible signal to bring

the vehicle to a stop, he

kiiowingly flees or attempts to

elude a pursuing police officer.

"(2) The signal given by the

police officer may be by hand,

voice, emergency light or siren.

"(3) As used in this section,

‘police officer' means a sheriff,

municipal policeman or member of

the Oregon State Police in

uniform, prominently displaying

his badge of office, or who is

operating a vehicle appropriately

marked showing it to be an

official police vehicle.

"(4) Fleeing or attempting to

elude a police officer is a Class

A misdemeanor."

3. The statute which defines attempt to

elude as a major traffic offense, though

nothing turns on its terms, is ORS

487.530(4), which provides as follows:

"487.530 DEFINITIONS FOR ORS

487.530(2) 487.560. As used in

chapter 451 Oregon Laws 1975,

unless the context requires

otherwise, ‘major traffic

offenses' includes:

Hkkkk

"(4) Fleeing or attempting to

elude a police officer as set

forth in ORS 487.555."

4. The*statute that defines "major

traffic offense", though nothing turns on its

terms, is ORS 484.010(5)(e), which provides

as follows:

"484.010 DEFINITIONS FOR ORS

484.010-484.435. As used in ORS

1.510, 1.520 and 484.010-484.435,

unless the context otherwise

requires:

tkkkek

"(5) ‘Major traffic offense’

means a violation of any of the

following provisions of law or a

city ordinance conforming thereto:

Wkkke

"(e) Fleeing or attempting to

elude a police officer, as defined

in ORS 487.555."

4. The statute under which petitioner

was arrested is ORS 484.100(1), which

provides as follows:

"484.100 AUTHORITY OF POLICE

OFFICER TO ARREST OR ISSUE

CITATION. (1) A police officer

may arrest or issve a citation to

a person for a traffic offense at

any place within the

jurisdictional authority of the

governmental unit by which he is

authorized to act."

5. The statute under which petitioner was

arrested is ORS 133.235(5), which provides as

follows:

"133.235 ARREST BY A PEACE

OFFICER; WHEN AND HOW MADE.

HkeKekkek

"(5) 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."

STATEMENT OF THE CASE

Oregon State Police officers Boatwright

and Richey observed a red Audi northbound on

I-5 approaching the City of Portland, Oregon

(Tape CT A46, 401B at 360).2

The car exited Interstate 5 and was

stopped by the State Police in order to issue

a traffic citation for speeding. (Tape CT

A46, 401B at 371). In stopping the vehicle,

the state officers had turned on their

overhead lights (Tape CT A46, 401B at 37l-

377). The driver then eluded the State %

Police (Tape CT A46, 401B at 383-389, 394).

No identification was made of the driver

(Tape CT A46, 401B at 381-383, 391).

The Lake Oswego Police were subsequently

notified by radio of the description of the

car, together with a Lake Oswego address of

the registered owner (Tape CT A46, 401A at

273-289). The Lake Oswego Police were also

informed that there were two suspects in

the red Audi (Tape CT A46, 386B at 374-381).

The Lake Oswego Police were dispatched

to the address of the registered owner, where

they waited one hour until the suspect car

appeared. (Tape CT A46, 401B at 404-407).

At 4:08 a.m., officer Reed of the Lake

Oswego Police followed the Audi up the

driveway and into the garage where he saw the

driver get out of the car and into a lit

garage; he saw no other occupants of the car

(Tape CT A46, 401A at 331, 337, 365). The

officer could not recall if his overhead

lights were on (Tape CT A46, 401A at 361).

At this time it was dark (Tape CT A46, 401A

at 387), and officer Reed was standing

outside of the lit garage (Tape CT A46, 401A

at 367). Officer Reed only told the driver

to "stop"; he never identified himself (Tape

CT A46, 401A at 383-385). There is no

evidence on the record that the driver knew

he was being hailed by a police officer (Tape

CT A46, 401A at 363-385).

When the arresting officers first saw

defendant, they were standing in the doorway

and the defendant was inside, clad in his

underwear (Tape CT A46, 386B at 8). The

officers entered the dwelling and secured

defendant (Tape CT A46, 401B at 28-30). The

officers did not enter the home to make an

arrest, but to conduct an investigation and

hold a suspect until identification could be

made by the State Police (Tape CT A46, 386B

at 208-214).

After securing defendant, the police

proceeded upstairs, searched a bedroom (Tape

CT A46, 386A at 42-49), and forced open a

door that had been locked from the inside

(Tape CT A46, 386B at 58-60).

At trial, defendant filed the following

"Motion to Suppress and Dismiss":

"Comes now defendant by and

through his attorney, William V.

Bierek, and moves this court for

an Order suppressing the issuance

of a citation issued in the above

Captioned case on the grounds and

for the reason that the issuance

of said citation was as a direct

result of an illegal and

unconstitutional search and arrest

of the defendant at his residence

without a warrant for either, nor

was such search and arrest based

upon probable cause."

The trial court held that

"absent exigent circumstances, a

warrant must be obtained by an

officer before he enters a

person's home, and I do not find

any exigent circumstances in the

facts of this case to justify this

type of entry. So it is

unconstitutional and illegal, and

the citation will be dismissed and

the fruits of the search will be

suppressed." (Tape CT A46, 401B at

469-479); App., p. 16)

On appeal, the State made the following

assignments of error in its brief:

"Assignment of Error No. l. The

trial court erred in ordering

dismissal of the citation in this

case on the ground its issuance

was the fruit of an illegal search

and seizure;

"Assignment of Eror No. 2. The

trial court erred in ordering that

all evidenciary fruits of a search

be suppressed."

Defendant, in his brief, presented the

following question on appeal:

"2. Did the State fail to carry

its bureen of proof that the

warrantless entry into defendant's

house was justified by hot

pursuit?"

The Court of Appeals held:

"When defendant did not heed

officer Reed's call to stop and

instead ran into his house, the

police acted lawfully when they

followed him through an open

door. State v. Wesson, 40 Or

App 99, 591 P2d 755 (1979); United

States v. Santana, 427 US 38, 96

S.Ct. 2406, 49 L. Ed. 2a 300

(1976).

"The most reasonable conclusion to

be drawn from the facts is that

‘hot pursuit' justified the

warrantless entry into defendant's

home by Oswego Police." State v.

Niedermeyer, 48 Or App 665, 670,

617 P2a srr, 913 (1980).

In defendant's petition for review,

defendant relied, inter alia, upon the

following point for reversal:

"2. The Court of Appeals erred in

finding that the arresting

officers were engaged in hot

pursuit when they made a

warrantless entry into defendant's

house.”

On December 16, 1980, the Oregon Supreme

Court denied review, and defendant now

petitions this court for certiorari.

ARGUMENT

A. Conflict with Applicable Decisions

of this Court. This Court has stated that

merely attempting an arrest in a public place

does not, in itself, provide an exigent

circumstance so as to justify a warrantless

entry into a house. Vale v. Louisiana, 399

B.8: 3, 36-90 8. Ce. 1969, I97Re 20 he BGs

2d 409 (1970). Even where officers have

commenced an arrest in public, whether or not

they can enter the suspect's house is subject

to the limitation that speed must be

essential. United States v. Santana, 427

U.S. 38, 42, 96 S. Ct. 2406, 2409, 49 L. Ed.2d

300 (1976)(realistic expectation that

evidence may be destroyed); Warden v. Hayden,

387 U.S. 294, 298-299, 87 S. Ct. 1642, 1646,

18 L. Ed.2d 782 (1967) (delay would gravely

endanger officers' lives or the lives of

others. Cited in Santana); Vale v.

Louisiana, supra, 399 U.S. at 33-34, 90 S.

Ct. at 1971 (arrest outside suspect's house

did not permit arresting officers to ounbuee

search inside suspect's house).

The Oregon Court of Appeals held that

the Oswego Police had probable cause to

believe the driver of the Audi had violated

ORS 487.555 (attempt to elude a police

officer). The court went on to hold that

when the driver failed to heed officer Reed's

call to stop, the officer could then follow

the suspect into the house.

This fact situation differs from those

facts presented in Warden v. Hayden and

10

United States v. Santana in some important

respects. In this case there is no evidence

on the record that the suspect had any

knowledge that he was being hailed by a

police officer. Officer Reed never

identified himself and was standing outside

the lit area of the garage. This was not a

pursuit situation as in Santana, where the

suspect retreated into her house when the

police officers identified themselves and

created an expectation of escape or

destruction of evidence. Quite to the

contrary, when the suspect here ran into the

house in response to a call out of the night,

the inference is that he will stay within the

safety of the house and not venture out into

the night. The concern about preserving

evidence is also inappropriate here where the

charge (attempting to elude) did not involve

any tangible evidence.

Unlike Warden, there is no evidence here

that the delay necessary in obtaining a

warrant would endanger the lives of the

officers or the lives of others. This case

involves a misdemeanor traffic offense, not

armed robbery.

In both Santana and Warden, the suspect

was wanted in connection with a felony. This

suspect was wanted on a misdemeanor.

In United States v. Watson, 423 U.S.

411, 96 S. Ct. 820, 46 L. Ed.2d 598 (1976),

this Court affirmed the common law rule

generally authorizing felony arrests in

public on probable cause without a warrant.

423 U.S. at 421, 424, 96 S. Ct. at 827, 828.

The rule has not beenso liberal, however,

with respect to misdemeanor arrests. §120.1

of the Model Code of Pre-arraignment

Procedure was adopted by the American Law

Institute as the traditional and almost

universal standard for arrest without a

warrant. Watson, supra, 423 U.S. at 422, 96

S. Ct. at 827. §120.1 reads in pertinent

part as follows:

"(1) Authority to Arrest

Without a Warrant. A law

enforcement officer may arrest a

person without a warrant if the

officer has reasonable cause to

believe that such person has

committed

nkkee

"(b) a misdemeanor and the

officer has reasonable cause to

believe that such person

"({2) will not be apprehended

unless immediately arrested;

"(il) may cause injury to himself

Or others or damage property

unless immediately arrested; or

"(c) a misdemeanor or petty

misdemeanor in the officers'

presence."

Where the officer, as here, had no

reason to believe the suspect would avoid

apprehension by police, or would create a

danger to himself or others, and when the

alleged crime did not take place within the

presence of the officer, under the rule

adopted by the American Law Institute,

officer Reed could not even have made a

public arrest of the suspect.

In holding as they did, the Oregon

Supreme Court and Court of Appeals apparently

read only that part of Santana that reads as

follows:

"The only remaining question is

whether [Santana's] act of

retreating into her house could

thwart an otherwise proper arrest.

We hold that it could not." 427

U8. Q@t €2, 96 8. Ct. at 2409.

But the opinion reads on:

"This case, involving a true ‘hot

pursuit,' is clearly governed by

Warden; the need to act quickly

here 1s even greater***,." 427

2410.

This Court has recognized that arrests

in the home involve an invasion of the

sanctity of the home so substantial that in

the absence of exigent circumstances, the

arrest will not be permitted without a

warrant. Payton v. New York, U.S. , 100

S. Ct. 1371, 1381, 63 L. Ed.2d 639 (1980). No

such circumstances have been shown to exist

in this case.

The reasoning by the lower court permits

a warrantless entry merely if a suspect

retreats into his house when an officer

attempts to make a stop and when the officer

had prohable cause to make a public arrest.

Absent a showing of exigent circumstances,

this ruling allows a warrantless entry upon

probable cause alone. This is not the thrust

of Santana, and it is directly contrary to

this Court's holding, in Payton v. New York,

supra.

It should also be noted that officer

Reea‘s purpose for making a warrantless entry

was only tc further an investigation on the

elude charge. This type of police procedure

was expressly condemned by this Court in

Brown v. Illinois, 422 U.S. 590, 605, 95 S.

Ct. 2254, 2262, 45 L. Ed.2d 416 (1975).

B. Conflict with the Decisions of

Other State Courts of Last Resort and

Federal Courts of Appeal. The Federal

Circuits that have considered a warrantless

police entry into a home since Santana

agree that exigent circumstances must

exist in order for the entry to survive a

constitutional challenge under the Fourth and

Fourteenth Amendments of the United States

Constitution. United States v. Edwards, 602

F2d 458, 468 (C.A. lst 1979)(possibility that

evidence would be destroyed by suspects who

had discovered government surveillance);

United States v. Houle, 603 F2d 1297, 1300

(C.A. 8th, 1979)(entry violated the Fourth

15

Amendment where police had no fear of an

attempted escape or that evidence would be

destroyed); United States v. Williams, 612

F2d 735, 739 (C.A. 3rd 1980) (legitimate

concern that immediate police action was

necessary in order to prevent an escape and

danger to the lives of the suspect, the

police officers and others).

The state courts of last resort that

have applied Santana, also agree that retreat

into a house is not, of itself, an exigent

circumstance so as to justify a forcible

entry into a home to make an arrest. State

v. Love, 123 Ariz. 157, 598 P2d 976, 978

(1979)(a fleeing felon is an exigent

circumstance justifying a warrantless entry);

State v. Allison, 298 N.C. 135 257 S.E.2d

417, 421 (1979)(adopts the test used in

Dorman v. United States, 140 U.S. App. D. C.

313, 319-320, 435 F2d 385, 392-393

(1970)7).

State v. Love, supra, presents a fact

situation similar to Santana and the present

case. Love is similar to both cases in that

16

the police attempted to arrest a suspect in

the doorway of his house. The suspect

retreated into the house and the police

followed him and arrested him inside. Love

looses its similarity with this case, but

remains similar to Santana in that the

suspect was wanted in connection with a

felony, the officers identified themselves as

police, the police officers had strong reason

to believe that the suspect had committed the

crime involved, and entry was made during the

day.

In Love, the Arizona Supreme Court held

that a warrantless entry into a dwelling to

effect an arrest is per se unreasonable

unless exigent circumstances require the

police to act before a warrant can be

obtained. 598 P2d at 970. The circumstances

justifying police entry in that case where

that the suspect was wanted in connection

with a felony and was in the act of fleeing

from the police. Id. The holding in this

case is devoid of any such rational. State

v. Niedermeyer, 48 Or App at 670, 617 P2d at

_ 7

913.

Here, officer Reed never identified

himself and was not in a lit area where he

could assume the suspect could perceive his

identity. Unlike Love and Santana, there is

no basis on this record for the police to

assume that the suspect was fleeing arrest.

This suspect was wanted in connection

with a misdemeanor. It was not a grave

offense and there is no evidence that the

suspect posed any danger to anyone.

Officer Reed did not have a clear

showing of probable cause that this suspect

committed the crime involved. In Santana,

the police arrested a suspect minutes after

she had purchased heroin. That suspect said

she had purchased it from Santana. In Love,

the arresting officers had observed

approximately 1,000 pounds of marijuana in

the suspect's possession shortly before the

arrest. Here, the arresting officer only had

the description of a suspect automobile which

had been out of police observation for an

hour, and the vehicle's occupancy had

apparently changed from two to one occupant.

In addition, the entry was made at

approximately 4:30 a.m. after the police had

the opportunity to observe defendant inside

the house in his underwear. Entry under

these circumstances was not reasonable, and

was, therefore, in violation of defendant's

rights, as protected under the Fourth and

Fourteenth Amendments to the United States

Constitution.

CONCLUSION

For the reasons set forth above, it is

respectfully submitted that this petition for

a writ of certiorari should be granted.

WILLIAM V. BIEREK

Suite 210, Condon Building

5901 Macadam Avenue

Portland, OR 97201

Telephone: (503) 226-2488

WITH HIM ON THE BRIEF:

A R. TAYLOR

Suite 851, Boise aie. de Bldg.

1600 S.W. Fourth Avenye

Portland, OR 97201

Telephone: (503) 221-1915

19

FOOTNOTES

1 see Appendix pp. 13-16 for trial

court's findings of fact and conclusions of

law. .

2 "[It may be useful to refer to a

number of considerations that are material,

and have particular pertinence [in cases of

warrantless entries].

"First, that a grave offense is involved

particularly one that is a crime with

violence. ****

"Second, and obviously inter-related,

that the suspect is reasonably believed to be

armed .****

"Third, that there exists not merely the

minimum probable cause *** but beyond that

a clear showing of probable cause *** to

believe that the suspect committed the crime

involved.

"Fourth, strong reason to believe that

the suspect is in the premises being entered.

"Fifth, a liklihood that the suspect

will escape if not swiftly apprehended.

"Sixth, the circumstance that the entry,

though not consented, is made peaceably.

xkkekk

"Another factor to be taken into

account *** relates to the time of entry."

Dorman v. United States, 140 U.S. App D.C.

313, 319-320. 435 Fad 385, 392-393 (1970).

20

IN THE SUPREME COURT OF THE UNITED

STATES

OCTOBER TERM, 1980

LINUS J. NIEDERMEYER,

Petitioner,

)

)

)

)

Vv. )

)

STATE OF OREGON, )

)

)

Respondent.

APPENDIX TO PETITION FOR CERTIORARI

IN THE COURT OF APPEALS

FOR THE STATE OF OREGON

STATE OF OREGON, )

Petitioner, No. J 8225

Ve CA 17574

LINUS J. NIEDERMEYER,

een

KEKKEEEEKEEKEKEEEER

Appeal from District Court, Multnomah County

Aaron Brown, Jr., Judge.

Argued and submitted August 22, 1980.

James M. Mountain, Jr., Assistant

Attorney General, Salem, argued the cause for

appellant. With him on the brief were James

M. Brown, Attorney General, ance Walter L.

Barrie, Solicitor General, Salem.

William V. Bierek, Portland, argued the

cause for res.ondent. With him on the brief

was Dana R. Taylor, Portland.

Before Richardson, Presiding Judge, and

Thornton and Buttler, Judges.

THORNTON, J.

Reversed and remanded for trial.

FILED: October 13, 1980

THORNTON, J.

Defendant was charged by Uniform Traffic

Citation Complaint with fleeing or attempting

to elude a police officer. ORS 487.5551

The trial court, on pre-trial motion of

defendant, dismissed the citation on the

ground that the arrest was the fruit of an

illegal search and seizure. The state

appeals, assigning as error the following

pre-trial orders of the trial court:

1) Ordering dismissal of the citation,

si 2) Ordering that all evidentiary fruits

of the search be suppressed.

The facts which led up to the filing of

this charge against. defendant are somewhat

complicated.

On March 4, 1979, Oregon State Policemen

Boatwright and Richey were patrolling

Interstate Highway I-5 in a marked car. At

2:54 a.m., they saw a red Audi Fox

automobile, Oregon License No. EKR 090, enter

I-5 at the Terwilliger on-ramp at a high rate

of speed. The officers followed the Audi as

it traveled I-5 and I-405 at speeds up to 78

miles per hour in a 50 mph zone.

The police turned on the overhead lights

of their car and signalled the driver of the

Audi to stop. The driver did not stop

immediately. He slowed his vehicle, took the

Highway 30 exit at the end of the Fremont

Bridge, drove on Vaughn Street, turned at

N.W. 21st Avenue, and pulled into a parking

space. After parking his vehicle behind the

Audi, Trooper Boatwright approached the car

while shining his flashlight on the face of

the driver, who had opened the driver's side

door.

The Audi driver, whom Boatwright later

identified as defendant, closed his car door

as the officers approached, and he sped off.

The officers attempted to follow the

defendant's car, but they were unable to

catch up to it. They called in a report of

the incident, a description of the driver,

and the Audi's license number to their

dispatcher.

At 3:05 a.m., Lake Gomene Police Officer

Reed was advised by his dispatcher that a red

Audi had eluded the Oregon State Police in

Portland and had been involved in a shooting

in Washington Park. Reed was told the car

was registered to someone named Niedermeyer

who resided in Lake Oswego at 2801 South

Shore Boulevard, and that two suspects were

involved. Accompanied by Officer Grant in a

second car, Officer Reed immediately went to

defendant's address, which he staked out when

it appeared no one was home.

At 4:08 a.m, about an hour after Reed

and Grant began their watch of defendant's

house, they saw a red Audi being driven on

South Shore, onto defendant's driveway and

into the garage. Reed pulled his vehicle

into the driveway. He saw defendant jump out

of his car. No passenger was observed in the

vehicle. The officer called for defendant to

stop, but he ran into the house. Reed

stopped in the dark, opened doorway to wait

for cover from Officer Grant.

Approximately two minutes later,

defendant came down a stairway in his

undershorts and asked what was going on.

Defendant was told to lie down on the floor.

After a third officer arrived to take charge

of defendant, Officers Reed and Grant went

through the house looking for other people

and a weapon. In an upstairs bedroom they

saw defendant's clothing and car keys in open

view. The officers found no weapon when they

looked through dresser drawers. They forced

open the door to one bedroom which was

apparently bolted from the inside, but found

no one. However, in another bedroom, Reed

and Grant found Scott Niedermeyer,

defendant's brother.

After the defendant was advised of his

rights, he refused to answer questions about

his driving or any firearm. Officer Reed

forcibly seated the defendant when he raised

a fist at the officer. Defendant's brother

Scott said a blank pistol had been used but a

friend had possession of the gun. In the

back seat area of defendant's car, Officers

Grant and Reed saw an empty .22 caliber shell

box and shell casings.

At 4:34 a.m., State Troopers Boatwright

and Richey arrived at defendant's home to

which they had been dispatched. After

Officer Boatwright identified the Audi as the

car which had eluded him, and the defendant

as the driver of the car, he issued the

defendant a citation for attempting to elude.

The defendant was not taken into custody.

Prior to his trial on the attempting to

elude charge, the defendant filed a motion to

"Suppress" the issuance of the citation on

the ground issuance was the result of an

illegal and unconstitutional search and

arrest of defendant. In the motion he also

asked for dismissal.

The trial court found the facts to be

the same in all particulars set forth above.

As to the first question, whether the

district court had authority to dismiss the

citation, we conclude that it did not.

As we understand the dismissal order,

the basis of the court's action was its

conclusion that the issuance of the citation

was the fruit of an illegal arrest.

First, we conclude that the arrest and

citation of defendant was lawful. The state

police officers had probable cause to believe

that the driver of the red Audi had violated

ORS 487.555, a Class A misdemeanor and a

major traffic offense. ORS 487.555(2),

487.530(4), 484.010(5)(e). Other officers,

including the Oswego police, receiving the

broadcast information of the alleged eluding

incident, had the same probable cause. The

Oswego officers, in addition, had received

word that the same Audi had been involved in

a shooting incident in Washington Park. When

the lake Oswego officer saw defendant pull

into his driveway, they were authorized to

arrest him. ORS 484.100(1). When defendant

did not heed Officer Reed's call to stop and

instead ran into his house, the police acted

lawfully when they followed him through an

open door. State v. Wesson, 40 Or App 99,

591 P2d 755 (1979); United States v. Santana,

427 US 38, 96 S. Ct. 2406, 49 L. Ed.2d 300

(1976).

The most reasonable conclusion to be

drawn from the facts is that "hot pursuit"

justified the warrantless entry into

defendant's home by Oswego police. The city

officers were authorized to enter and detain

defendant for identification and citation by

state police officers, who, it was reasonable

to believe, had been eluded by defendant. It

follows, therefore, that the actions of the

Oswego officers were proper and did not

afford a basis for dismissing the citation.

Second, once defendant was apprehended

and arrested at his home on the eluding

charge (ORS 487.555), what transpired inside

the home thereafter was irrelevant to this

case. This includes the searching for the

weapon reported to be involved in the

Washington Park episode as well as the

breaking down of the bedroom door. It was

therefore error of the trial court to

consider these actions as a basis for

decision, if in fact it did so.

Lastly, we do not find this to be an

appropriate case for the application of the

permissive dismissal rule mentioned in State

v. Scurlock, 35 Or App 579, 581-82, 581 P2d

986, aff'd as modified, 286 Or 277, 593 P2d

1159 (1979).

Reversed and remanded for trial.

FOOTNOTE

1m (1) A driver of a motor vehicle

commits the crime of fleeing or attempting to

elude a police officer if, when given visual

or audible signal to bring the vehicle to a

stop, he knowingly flees or attempts to elude

a pursuing police officer.

"(2) The signal given by the police

officer may be by hand, voice, emergency

light or siren.

"(3) As used in this section, ‘police

officer' means a sheriff, municipal policeman

or member of the Oregon State Police in

uniform, prominently displaying his badge of

office or who is operating a vehicle

appropriately marked showing it to be an

official police vehicle.

"(4) Fleeing or attempting to elude a

police officer is a Class A misdemeanor."

ORS 487.555

10

December 17, 1980

William V. Bierek

Attorney at Law

5901 S.W. Macadam, Suite 210

Portland, OR 97201

RE: State v. Linus J. Niedermeyer

CA 17574 SC 27450

Dear Mr. Bierek:

The Supreme Court on December 16, 1980,

denied Respondent's Petition for Review in

the above-entitled matter.

This letter constitutes the order of the

Supreme Court denying the petition.

Very truly yours,

/s/ Marilyn Hartley

Marilyn Hartley

Supreme Court Calendar Clerk

MH/vr

cc: James M. Mountain, Jr.

11

STATE OF OREGON

COURT OF APPEALS

LINUS J. NIEDERMEYER, ) JUDGMENT AND MANDATE

Petitioner, Appeal from

MULTNOMAH County

Vv. District Court

No. J 8225

CA 17574

STATE OF OREGON,

i

Respondent.

This cause having come on to be heard on

appeal and having been duly submitted and

considered, and petition for review having

been denied by the Supreme Court on December

16, 1980:

IT IS HEREBY ADJUDGED AND ORDERED that

the decision entered below in this cause is

reversed and remanded for trial.

The cause is returned below for further

proceedings pursuant to law and the opinion

and order of the court entered October 13,

1980. |

T IS FURTHER ORDERED that appellant

recover from respondent costs and

disbursements in this court taxed at $75.00.

ISSUED at Salem, Oregon: January 7,

1981.

12

IN THE DISTRICT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

STATE OF OREGON,

Plaintiff, No. J8225

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

(Tape CT A46, 401B

at 360-500)

Ve

LINUS J. NIEDERMEYER,

eee eee ee ee ee

Defendant.

Court: "Here is my ruling, I better

just make some concise facts, alright?"

District Attorney: "Okay."

Court: "Alright, this is one you can

rely upon.

"Fact number one: Defendant was first

seen on I-5 headed North. He took the St.

Helens Highway 30 exit and went down to

Vaughn Street, made a left turn onto Vaughn

and switched three lanes into the right hand

lane; whereas, he made a right turn on N.W.

2lst, and was stopped by the officer.

"The second fact is that the officer did

put his headlights on, his top lights around

the circles, at Couch Street overpass and

kept them on until he got behind the

defendant on 2lst.

13

"Thirdly, the court finds that the

defendant did in fact --- I won't say

defendant because we are not definite about

identification, and since we're not having a

trial, I would put this on fact three that

the driver of the car did in fact elude the

police officers by going down one block,

turning left, going down another block, made

another left turn, and then shooting down the

highway. By the time the officers could get

there he was at least six blocks down the

street. And in fact he did, the alleged

driver, did in fact get the car over to

Niedermeyer's residence. Now I don't know

who was driving, I won't say that now. But I

will say that the alleged driver did elude

and did leave the scene and go to

Niedermeyers' residence where the ---

"And the fourth fact will be that the

officer Reed received information that this

car had been involved in an alleged shooting

in Washington Park, and that the driver had

eluded the officers.

"Fifthly, we find that the officers

14

waited one hour until the car appeared at the

residence of t’: Niedermeyers.

"Sixth, that defendant ran into his

home, and the officer appeared in the doorway

with his revolver drawn, chasing the

defendant, the defendant driver, because we

still don't know who was driving the car.

The defendant driver.

"Then seventh, that officer Reed and

Grant entered the Niedermeyer home without

the consent of the owner, or hot pursuit. In

other words, I am trying to say the facts

indicate there is no hot pursuit here.

"And eighthly, that this entry was

illegal due to the fact that it was made

without a warrant for the defendant's arrest.

"Now, the legal conclusion is this: is

that the ORS 133.235 which provides that

‘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.’

"Now, the question I have decided is

whether this is constitutional as applied to

15

the facts of this case. Based upon Article

I, §9 of the Constitution of the State of

Oregon, and the Fourth Amendment. And the

conclusion is that absent --- in other words

what I am trying to say is that absent

exigent circumstances a warrant must be

obtained by an officer before he enters a

person's home, and I don't find any exigent

circumstances in the facts of this case to

justify this type of entry. So it's

unconstitutional and illegal and the citation

will be dismissed and all of the fruits of

the search will be suppressed. That is based

on State v. Olsen, 287 Or 157, and State v.

Peller, 287 Or 255, all 1979 cases, which

indicate that the -- I have the case right

here. In State v. Olsen, the judge says

‘the following cases are ones

which not only state the rule that

a warrant is necessary in the

absence of exigent circumstances,

but have also quashed the

evidentiary fruits of the entry

made for the purpose of the

arrest.'"

16