State v. Ford

¶1dissenting.

¶2This case involves the execution of an arrest warrant in a situation where the police had legitimate concerns for their safety. The majority’s decision requires police officers to follow the technical requirements of the knock and announce statute in the face of information which leads them to believe that by doing so, they will be at substantial risk of death or injury. We have never required that before, and we should not do so now. I agree with the majority that the “knock and announce” statute was violated here. However, I do not agree that the violation was aggravated. Accordingly, I dissent.

¶3The test for determining when an aggravated violation has occurred has not been precisely articulated. The majority examines other cases involving this issue and concludes that the facts here are closest to State v. Tweed, 62 Or App 711, 663 P2d 38 (1983), the one case where a violation of the statute was found to be aggravated. In Tweed, the police obtained a warrant to search the defendant’s home for “marijuana and barbituates.” They had no special reason to be concerned for their safety other than general concerns that accompany the execution of a search warrant. Two hours before they executed the warrant, the officers decided to drink a “couple of beers.” This then occurred:

“At 12:30 a.m., [defendant’s husband], in response to a knock, opened his front door slightly, with his wife and two children at home; a man who was not objectively identifiable as a police officer, smelling of alcohol, stepped through the door into the hallway without first identifying himself or stating his mission, hastily displayed a badge and drew [from under his coat an automatic weapon], which shook as he held it. Other unidentified men, also in plainclothes, rapidly followed the first.” 62 Or App at 717.

¶4*9The first officer proceeded to hold his gun on the defendant’s unarmed husband for half a minute, then tripped, without apparent reason, as he attempted to hand defendant the search warrant. I would agree that the violation in Tweedwas aggravated, but this case is a far cry from Tweed.1

¶5The similarity between this case and Tweed, according to the majority, is that the occupants reasonably could have believed they were the victims of an armed robbery and might have reacted violently. However, the facts in this case are quite different. Here, although the police did not announce their presence before they entered, as they should have under the statute, they did so as they entered and continued to announce their presence throughout the search of the residence.2 They also had placards on the front of their clothes identifying them as police. Further, they did not smell of alcohol or behave in a manner that would cause one to doubt if they were police officers, as did the officers in Tweed.

¶6Additionally, there was no evidence in Tweedthat the officers were concerned for their safety, and they did not articulate any other reason for not announcing their entry. As recognized in State v. Berardinelli, 95 Or App 364, 769 P2d 235, rev den 308 Or 79 (1989), an important consideration in determining if a violation of the knock and announce statute has occurred is the officers’ reasons for entering in the manner that they did.3 In Berardinelli, where the warrant was executed at 3 a.m., some officers were in uniform and some were in plain clothes, while others wore special uniforms with hoods and goggles. The officers threw a stun grenade into an upper window, causing a loud explosion, as a “diversionary tactic.” They *10kicked open the door and entered with guns drawn. Soon after entering they fired at the defendants’ two Dobermans, killing one and injuring the other. The defendants contended that the police did not announce their identity and purpose until after they entered. The occupants testified they had no idea what was happening. Two of them testified that they thought they were being robbed. We held that the violation was not aggravated, because the police had reason to believe that compliance with the statute could have endangered both them and the occupants of the house. There was evidence that the officers believed the occupants to be armed, that there were two large guard dogs in the house and that lookouts were posted to alert the occupants to the presence of police. State v. Berardinelli, 95 Or App at 367-68.

¶7Here, the officers had reason to believe that defendant had five handguns in his possession. They knew, from observing him during a traffic stop the day before, that he had behaved in a nervous manner in the presence of the police.4 They knew that there were two outstanding warrants for his arrest. They were aware that two other men were present in the apartment with defendant and that at least one of them had been watching police activities outside the apartment. Finally, they knew that defendant probably was in possession of stolen property and methamphetamine.

¶8The majority dismisses all of that information by stating that “there is no suggestion that the police thought that they were about to execute a warrant for a major drug ring or that the occupants were dangerous.” I am unaware of any requirement that the warrant must relate to a major drug ring before a violation of the knock and announce statute will be excused. The statement that there was no suggestion that the occupants were dangerous ignores reality. The officers expressed concerns for their safety, and those concerns were supported by objective facts.5

¶9*11The majority asserts that the police should not have been concerned about defendant’s possession of weapons, because he had only been arrested for non-violent crimes and had no history of violence. It is preposterous to hold that an officer cannot act consistent with legitimately held safety concerns when executing a warrant on a suspected drug user believed to be in possession of drugs, stolen property and weapons, unless the officer has knowledge that the person has used the weapons in a violent manner or has a history of violence. The majority would seem to require actual proof that a situation is dangerous, rather than a more reasonable standard, which I would adopt, that there be objective facts to support the officer’s belief that a situation is dangerous. Accordingly, in this case, I would hold that the violation of the knock and announce statute was not aggravated.

¶10Defendant also argues that the officers violated the knock and announce requirement of the federal constitution. To rise to that level, two conditions must exist. First, the violation must conflict with both of the rule’s purposes, i.e., the protection of those who might be injured in an unannounced entry and the protection of the homeowner’s right of privacy. See State v. Berardinelli, supra, 95 Or App at 368; State v. Bishop, supra, 288 Or at 356. Second, the justification for the violation must not fall within one of the three emergency exceptions to the rule: preventing the destruction of evidence, preventing the escape of persons within the premises or preventing harm to the officers or to others in the premises. State v. Arce, 83 Or App 185, 188, 730 P2d 1260 (1986), rev den 303 Or 332 (1987). As discussed above, the violation was justified by the officers’ concern for their safety and, therefore, there was no constitutional violation. I would affirm.