State v. Hickmann , 21 Or. App. 303 ( 1975 )

PORT, J.

Defendant was charged with criminal activity in drugs, ORS 167.207. He filed a motion to suppress evidence seized by the police coincidentally with his warrantless arrest within his domicile and search thereof. The court allowed the motion and the state appeals, ORS 138.060(4).

In such an appeal it is elementary that the findings of fact of the trial judge, if supported by substantial evidence, are binding on this court. State v. Johnson/Imel, 16 Or App 560, 571, 519 P2d 1053, Sup Ct review denied (1974). It is also clear that a search of a man’s domicile and entry therein in the absence of a warrant are per se unreasonable and that the state has the burden to establish the legality of the search. State v. Miller, 269 Or 328, 524 P2d 1399 (1974); State v. Allen/Reed, 12 Or App 633, 508 P2d 472 (1973).

The hearing on the motion to suppress was consolidated with hearings on two other motions involving evidence seized from two other defendants not present in the Hickmann domicile or residents thereof but living in the same general area. The trial court opinion allowed all three motions. The three were consolidated for appeal in this court. Although appealing originally from all three, the state has now moved this court “after review of the record herein” to dismiss the appeal in the other two. Accordingly, two of the three consolidated for the hearing have been dismissed.

No findings of fact are contained in the order appealed from here granting the motion to suppress. The court did, however, file a memorandum opinion dealing with all three cases in which it discussed certain aspects of the evidence relating to this case. From this and from those facts set forth in the briefs as shown by the evidence and not disputed, we summarize the following factual situation.

On Saturday morning, May 11, 1974, the state obtained a search warrant for narcotics from the municipal judge for certain premises in Bend occupied by Kathy Huyck. Marihuana and peyote were found and she was arrested. She then informed the police that she had bought the marihuana from defendant, that he lived in an isolated area several miles outside the city in a tepee-like structure and usually left the area promptly after making a sale. The court found this was defendant’s dwelling. Ms. Huyck, who was under arrest, could not furnish clear directions but agreed to guide the police and the deputy district attorney to Hickmann’s tepee. It was located at the end of a dead-end road. No effort was made by the state to obtain either a search warrant of the Hickmann tepee for narcotics or a warrant of arrest for defendant. Upon arrival at the scene the officers knocked on the closed entrance flap of the tepee. They did not identify themselves as police officers, nor did they state the reason for their presence. There is a direct conflict in the testimony as to whether defendant, who was inside the closed tepee, authorized entry. The court made no finding of fact concerning this. The police entered and saw defendant kneeling in the tepee with a package in front of him. He was taken into custody and the package, which contained marihuana, was seized. See: State v. Bracco, 15 Or App 672, 517 P2d 335 (1973), Sup Ct review denied (1974), and cases therein cited.

The state contends that the warrantless seizure was justified by exigent circumstances. The trial court disagreed. It found that there was ample probable cause to have obtained a warrant, both for the arrest of defendant and search of his tepee, that the state made no showing that either the district judge or the circuit judge was not available that Saturday morning, and indeed made no effort to ascertain that fact.

The crucial question in this case is whether or not the entry by the police into defendant’s home was authorized. The state relies on State v. Bracco, supra. There, however, no question was involved concerning the validity of the police entry into the defendant’s hotel room. That case is authority, once lawful entry without a warrant has been gained to premises, for the search within the defendant’s immediate vicinity for drugs when seized incident to his lawful arrest for illegal possession of narcotics. Applied here, if the entry by the police into defendant’s domicile was lawful, then his arrest and the search and seizure of the package by which defendant was kneeling at the time of entry were valid.

Furthermore, in Braceo it was clear that probable cause to arrest the defendant or to search for narcotics did not exist until the paid police informant exited the room and told the police the narcotics were there. Since the informant was in the room at the invitation of the defendant and, having stepped out for a moment, simply went back into it with the police, no question concerning the entry was involved.

Here, probable cause to arrest defendant and to search his residence, as the court found, existed when the police were told by Ms. Huyck in Bend that defendant was the source of the narcotics for possession of which she had just been arrested. It is conceded there was no lack of available police there present to enable one of them or the deputy district attorney to seek a warrant forthwith for the arrest of defendant or for the search of his premises, or both. When obtained, knowledge thereof could have been transmitted by radio or actual delivery of the warrant at the site to the police, who would on this evidence have already located defendant’s domicile. Had he exited his home, the police could have arrested him forthwith without a warrant. The trial court found that exigent circumstances sufficient to warrant the setting aside of defendant’s Fourth Amendment rights were not here present. Its findings are supported by substantial evidence and we are bound thereby. State v. Johnson/Imel, supra.

As previously stated, the trial court in its memorandum opinion made no finding of fact concerning the validity of the police entry into defendant’s home. There is evidence both ways. Accordingly, we remand to the trial court for it to make findings of fact concerning the existence or nonexistence of consent by the defendant to the entry by police into his home. If it finds there was such consent, the order suppressing the evidence must be set aside. Accordingly, the order suppressing the evidence is vacated.

Reversed and remanded.