State v. Sanchez

WARREN, P. J.

Defendant appeals his convictions for manufacture, delivery and possession of a controlled substance. ORS 475.992. We reverse.

Detective Bellah, a Portland police officer assigned to the Clandestine Labs Unit, received an anonymous telephone call from a person who told him that, while walking by a house, he smelled a strong odor that he thought could be ether. Bellah went to the area to investigate. There was a strong and distinctive smell of ether coming from the house. Bellah knew that ether frequently is used in the manufacture of methamphetamine and that it also has legitimate uses. He did not smell any other odors usually associated with methamphetamine production. He did not believe that he had probable cause to enter the house. Bellah called the fire department, because he knew that ether is explosive. When the fire fighters arrived, they entered the house, because they thought that there was a chance of an explosion and they were concerned about safety. Bellah accompanied them when they entered, because, on the basis of his training and experience, he knew that ether might indicate an illegal drug lab and that the people who have illegal labs can be dangerous. Inside the house, he saw various items and materials that he associated with a drug lab. He used the information gathered from inside the house to get a search warrant, and he seized the evidence.

Defendant first challenges the trial court’s denial of his motion to suppress evidence obtained pursuant to the warrantless search of the house. He argues that the evidence must be suppressed under the Supreme Court’s ruling in State v. Bridewell, 306 Or 231, 239, 759 P2d 1054 (1988). He contends that the fire department and Bellah entered the house in a “community caretaking” function and that they did not have statutory or other authority for the entry. Accordingly, he argues that, under Bridewell, the evidence obtained as a result of that intrusion must be suppressed.1 Alternatively, he argues that there was no emergency to justify a warrantless *454entry under the emergency aid doctrine discussed in Bridewell, 306 Or at 236.2

The state responds, first, that the fire department had authority, under both a state statute and a city ordinance, to enter the house to alleviate the danger of explosion created by the presence of ether. Therefore, it argues, Bridewell does not require suppression of the evidence. It also argues that there was an emergency that justified the fire fighters’ entrance under the emergency aid doctrine.

The state has the burden of showing that a warrantless search was justified. See State v. Davis, 295 Or 227, 666 P2d 802 (1983). In State v. Bridewell, supra, the court said:

“In situations implicating criminal law enforcement functions, law enforcement officers may enter without a warrant to render emergency assistance under the emergency/exigent circumstances exception to the warrant requirement. In situations not implicating criminal law enforcement functions and not justified by the emergency/exigent circumstances exception, law enforcement officers, like private individuals, also may enter to render emergency assistance. In th[at] situation, however, incriminating evidence arising from the intrusion by law enforcement officers must be suppressed.” 306 Or at 239. (Footnotes omitted.)

Both parties focus on the fire department’s authority to enter the house. The answer to whether the fire fighters had authority to enter the house, however, says nothing about Bellah’s authority to accompany them. The information used to obtain the search warrant was not provided by the fire fighters; it was information obtained through Bellah’s warrantless entry into the house. Under the circumstances, as in State v. Paulson, 103 Or App 23, 795 P2d 611, rev allowed 311 Or 13 (1990), it is the police officer’s authority to enter, not the fire department’s, that is relevant.

The trial court found, and there is evidence, that Bellah called the fire department because “he was not authorized to make that entry” and “because he believed, or was apprehensive, that there was a danger of an explosion.” The *455court further found that “[h]is reasons for going in with the Fire Department are based on his training and experience that ether can mean an illegal lab, and the people who do that type of thing are people whose conduct can be dangerous.”

We need not decide whether Bellah’s reason for entering the house, protection of the fire fighters, was in the context of a criminal investigation or in a noncriminal context because, under either theory, the state has not established justification for Bellah’s warrantless entry. Assuming that the entry was pursuant to Bellah’s “community caretaking function,”

“the state cannot point to a statute or ordinance authorizing entries by [police officers] in response to citizen concern about the safety and well-being of neighbors.” State v. Bridewell, supra, 306 Or at 239.

Accord State v. Paulson, supra. Accordingly, the evidence should have been suppressed. State v. Bramson, 94 Or App 374, 378, 765 P2d 824 (1988).

Bellah’s warrantless entry cannot be justified by the emergency aid doctrine, under which there must be a true emergency and at least a reasonable belief or suspicion of criminal activity. State v. Bramson, supra, 94 Or App at 377. Even if there were a true emergency caused by the ether which the parties dispute, the state has not established that there was a reasonable belief or suspicion of criminal activity. Bellah testified that ether is known to be used in drug labs but has other, legitimate, uses as well. The existence of a possible emergency situation, without more, is not enough to justify a warrantless search under the emergency aid doctrine. State v. Bridewell, supra, 306 Or at 237.3

Because of our disposition of defendant’s first assignment of error, we need not address his other assignments.

Reversed and remanded for a new trial.

Inadmissible evidence is not available to support an application for a search warrant. State v. Donahue, 93 Or App 341, 345, 762 P2d 1022 (1988), rev den 307 Or 303 (1989).

Defendant also argues that the fire fighters lacked probable cause to enter the house. The state conceded at trial that there was no probable cause, and that issue is not before us.

The state argues in a footnote that,

“because the Fire Bureau properly entered the house, the evidence would have been discovered regardless of what Officer Bellah did and defendant has not argued otherwise.”

The state has not pointed to any evidence that would meet its burden of showing that discovery of the evidence was inevitable. See State v. Miller, 300 Or 203, 226, 709 P2d 225 (1985), cert den 475 US 1141 (1986).