[DV_listserv] LEGAL UPDATE: Bad news (with a little good news)

[Domestic Violence issues]

State v. Ernie Garcia
http://www.publications.ojd.state.or.us/docs/A154834.pdf

Facts: Neighbor calls 911 after hearing "mostly male screaming" and "possibly hitting" off and on for at least an hour coming from defendant's home. The first officer arrived shortly after the 911 call and waited for cover. While waiting, that officer approached the D's house and could hear a TV, but no other noise. A few minutes later, the second officer arrived. The two officers approached D's house. D was sitting inside the home on the couch but no one else was visible. D would not come outside, but officers could smell alcohol on him. D said there was no one else inside the house and denied anything had happened inside the home. Eventually, the officers arrested the D for Interfering with a Police Officer and they entered the home. Upon entering, one officer eventually located the victim who appeared 'frazzled' but he did not see any visible injuries. Upon contact with the victim the other officer did see "older" bruises on the victim's arm. Eventually, the victim disclosed to officers information about an assault that had happened on that day, as well as other violent incidents. The Defendant was charged with multiple crimes. The Defendant filed a Motion to Suppress arguing unlawful warrantless search of his home. The Trial court denied the Defendant's motion. Defendant was convicted at trial of Coercion, Menacing, Harassment, and Assault IV x 2.

On Appeal, the Court reverses the Trial Court's ruling:

The GOOD NEWS is that the COA agree D w/ the State and with the Trial Court that officers DID have the authority under the Emergency Aid Doctrine to enter the home (page 849). Unfortunately, the analysis did not stop there. The COA held that the emergency "dissipated" once the officers observed that the victim did not appear to have serious physical injuries, did not request assistance, and stated (initially) that she and the Defendant had only been in a verbal argument. Therefore, according to the COA, all evidence observed or obtained by the officers would be subject to suppression unless there was another valid exception to the warrant requirement. The State argued that the "material witness" exception (see State v. Fair) should apply. The majority opinion concluded, however, that that exception DID not apply because the evidentiary record was insufficient. In its final argument, the State urged the COA to find that suppression was not warranted because the victim implicitly consented to the officers' presence. Unfortunately, the COA held that because the State did not make that argument at the trial level, the State could not make that argument on appeal.

In her concurring opinion, Judge Hadlock wrote that she believed that the Material Witness Exception did apply in this case. She also stated that had the victim consented or agreed to the police officers' presence, the evidence should not have been suppressed. However, because that issue had not come up at the trial level, it could be not be argued by the State on appeal.



Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Fax: 503.373.1937

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