dissenting.
I would deny reconsideration.
The thrust of the state’s petition is that our original opinion did not give adequate Ball v. Gladden deference to the trial court’s findings of fact, including necessarily implicit findings. In particular, the state asserts that “[t]he lynchpin of this court’s analysis appears to be its mistaken understanding about the sounds the officers heard coming from inside the locked garage.”
There was no “mistaken understanding.” Our original opinion accurately recited the historical facts regarding how the officers described the sounds and their timing:
“After looking through the living areas, the officers came, finally, to the door leading from the residence to the garage. One of the officers tried to open the door but it was locked and required a key to open. As the officer tried to turn the doorknob, he heard a noise coming from inside the garage, which coincided with the officer’s attempt to open the door. The noise then stopped. The officer could not identify the source of the noise; it was not identifiably human. Because they did not have a key to the door, the officers decided to take it off its hinges. As they did so, they again heard an indeterminate noise.”
State v. Torres, 198 Or App 218, 222, 108 P3d 69 (2005) (footnote omitted). In holding that the noises from inside the garage did not “revive” any “emergency,” we noted three salient facts:
*290“First, the door required a key to open from the residential side — which necessarily meant that it had either been locked with a key from the residential side or had been locked from inside the garage. Second, the sound from the garage was not identifiably human — indeed, it was not identifiable at all. Third, although the officers had heard that sound twice — once when turning the doorknob, and the second time while removing the door from its hinges— the noise was not constant or continuous.”
Torres, 198 Or App at 227. That recitation of the facts comported exactly with the record evidence regarding the nature and timing of the noise from inside the garage. When asked what the noise “sound [ed] like,” Detective McGowan, one of the investigating officers, testified:
“Heard a noise inside. Couldn’t tell what it was, because the door was closed, obviously. I couldn’t tell, but I heard noise coming from the inside. I heard it once when I initially tried to open the door, and then as we were preparing to take [the] hinges off, we heard the same type of noise from inside.”
(Emphasis added.) When specifically asked whether the sound was a “human noise” or a “machine noise,” McGowan testified:
“It was a — I don’t know how to describe it. I can tell you what we found it out to be. It was a transformer apparently kicking on, because we did it after we [got] inside. There was a transformer for a lighting system. I couldn’t tell what it was when I went inside. I just heard a noise coming from inside the garage.”
(Emphasis added.)
The present majority does not purport to identify any misstatement of fact in our original opinion. Nevertheless, the state contends, and the present majority agrees, that our original opinion did not give adequate weight to the trial court’s consideration of the timing of the noises and to inferences reasonably to be drawn from that timing. I respectfully disagree. In particular, in our original opinion we carefully explained why, in the totality of the circumstances, those noises did not support an objectively reasonable belief that a person in the garage requested emergency assistance:
*291“Each of those facts must be considered in light of the putative emergency — viz., reasonably, was there an injured or otherwise incapacitated person on the other side of the locked door? Given the lock-and-key arrangement, any helpless person on the other side of the door would have to have been locked in by a perpetrator. Thus, the likelihood that there was a helpless victim in the garage corresponded to the likelihood that, after Gruetzke broke in, he somehow (a) forcibly compelled at least one victim into the garage or confronted a victim who was already in the garage at 11:30 at night; (b) at least partly incapacitated bis victim(s); (c) somehow locked the keyed door from the residence to the garage; (d) divested himself of any weapon or key he may have employed; (e) eliminated all signs of struggle in the house; and (f) then voluntarily initiated contact with the police while showing no signs of unusual exertion — all within roughly 20 minutes of his entry.
“That scenario is not, and was not, plausible — much less rising to the level of ‘reasonable grounds’ necessary to justify a warrantless entry under the ‘emergency aid’ doctrine. Nor did the coincidental occurrence of the indeterminate sounds from the garage so enhance the plausibility of the putative ‘helpless victim in the garage’ as to revive any ‘true emergency.’ There was nothing identifiably human about those sounds. Moreover, if those sounds emanated from a partially incapacitated victim, one might reasonably expect that the sounds would have continued to attract the attention of potential rescuers, after the officers initially tried to open the door. But that did not happen. Given those facts— and the range of plausible explanations for indeterminate sounds coming from inside a garage — the occurrence of the sounds was so common and ambiguous that it did not ‘suggest a reason for concern or lack of concern.’ Christenson, 181 Or App at 351.”
Torres, 198 Or App at 227-28.
Ultimately, this reconsideration is not about the facts. Nor is it even about Ball v. Gladden deference. Rather, where our original opinion and the present majority truly depart is on the legal question of whether the totality of the then-known (and uncontroverted) circumstances justified the warrantless entry into the garage under the “emergency aid” doctrine. That is, at the time that the officers entered the garage (after taking the door off its hinges), did the totality of *292the circumstances support an objectively reasonable belief that “immediate police action was required to protect human life”? As with the determination of “objective probable cause,” that determination is a legal inquiry.
We may have been right or wrong on that ultimate legal call in our original opinion. Of course, I continue to believe that we were right — but, obviously, this is a close and difficult case, and the Supreme Court (like the able trial judge) may some day reach a different conclusion. The real point is that, however close or difficult the ultimate decision, our opinion did not misstate either the facts (with a Ball v. Gladden “gloss”) or the applicable law. See ORAP 6.25(1)(a), (e).
- We dealt fairly with the issues as framed by the parties. Our opinion should stand.