State v. Paulson

*25RICHARDSON, J.

In these consolidated cases, the state appeals orders granting defendants’ motions to suppress evidence seized pursuant to a search warrant. It contends that the evidence is admissible, because the information in the affidavit supporting the warrant was obtained while police were lawfully in defendants’ apartment. We affirm.

Defendants are husband and wife. Wife called the 911 emergency number and reported that husband was experiencing medical problems, including periods when he would momentarily stop breathing. Two paramedics and a police officer responded to the call. The officer accompanied the paramedics pursuant to a police department practice that an officer respond to calls involving life threatening situations. When they arrived, wife directed them to a loft, where they found husband lying in bed. Conscious, he was agitated and experiencing high blood pressure, a fast respiratory rate and a fast pulse. A second officer, Nopanen, arrived shortly after treatment began and went up to the loft. Wife told one of the paramedics that husband had “snorted and shot up” at least one gram of cocaine over the last few hours. Husband also said that he had consumed cocaine. The paramedics noticed that there were a rolled-up dollar bill and white powder, which appeared to be cocaine, on a nearby dresser. Nopanen questioned wife about husband’s ingestion of drugs and apparently obtained a limited consent to search. Nothing was discovered or seized during that search.

Husband was transported to a hospital, where he told Nopanen that he had ingested cocaine during the last three hours. Nopanen called the district attorney’s office and was told that husband would not be prosecuted for possession on the basis of consumption. Nopanen talked to wife at the hospital and requested consent to search the apartment. She refused. The officers obtained a search warrant by telephone, ORS 133.545(5); ORS 133.555(3), on the basis of an oral affidavit in which Nopanen recited what defendants said in the apartment and his observation of the rolled-up dollar bill and the white powder and the fact that husband had consumed cocaine and had told him so at the hospital. During execution of the search warrant, the officers seized the bill and the white powder on the dresser, cocaine and cocaine paraphernalia.

*26Defendants moved to suppress all evidence seized under the warrant. The court granted the motions, relying on State v. Watson, 95 Or App 134, 769 P2d 201 (1989).1 The state contends that the officers were lawfully in defendants’ apartment, that the observations while in the apartment were lawful and, therefore, that the evidence seized pursuant to the warrant is admissible.

In Watson, the police found methamphetamine in the defendant’s change purse during the investigation of a single car accident. In upholding suppression of the evidence, we explained the scope of police authority to enter protected areas during noncriminal investigations and the admissibility of evidence discovered during such intrusions:

“[W]hen police act in a capacity other than criminal law enforcement, entry into protected areas may only be made pursuant to ‘statutory or other authority from a politically accountable body.’ State v. Bridewell, [306 Or 231, 239, 759 P2d 1054 (1988)]; see also State v. Pidcock, 306 Or 335, 341-42, 759 P2d 1092 (1988); Nelson v. Lane County, 304 Or 97, 101-06, 743 P2d 692 (1987). Only if that authority exists and if discovery [of evidence] otherwise meets the plain view exception to the warrant requirement is the evidence admissible. Nelson v. Lane County, supra; 304 Or at 104, n 5; see also State v. Pidcock, supra. When presented with situations not directly related to a criminal violation investigation, police may still enter protected areas to render aid or assistance, notwithstanding a lack of statutory authority, but, under Article I, section 9, any evidence discovered is inadmissible in a criminal prosecution. State v. Bridewell, supra, 306 Or at 239-40; see also State v. Okeke, 304 Or 367, 373, 745 P2d 418 (1987).” 95 Or App at 137-38.

In this case, the court found that the officers were lawfully in the apartment to render emergency medical assistance to husband. Nonetheless, under State v. Bridewell, supra, evidence discovered during a noncriminal investigation is only admissible in a criminal trial if the intrusion into a protected area was authorized by statute or a politically *27accountable body. The state does not point to any “statutory or other authority from a politically accountable body” to support entry by the police officers. Even if their entry could be characterized as necessary to render assistance to husband, incriminating evidence observed cannot be used for criminal law enforcement purposes. State v. Bridewell, supra.2 The inadmissible evidence, including the statements made by both defendants at their residence, 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). Without that information, the affidavit lacks facts to support the warrant. The only other pertinent information in the affidavit was husband’s statement at the hospital. It was not sufficient to establish probable cause to believe that there would be cocaine at the residence.

Affirmed.

In its oral pronouncement, the court said that it was granting the motion to suppress because it found that the facts in the affidavit did not provide probable cause to support the warrant. However, in the written order, the court relied on our analysis in Watson. We review only the basis specified in the written order. State v. Pryor, 96 Or App 181, 184, 772 P2d 431, rev den 308 Or 158 (1989).

The state appears to agree that Bridewell is troublesome to its ease, if not controlling. Its primary argument is that Bridewell is wrong. Whether we agree or disagree with that critique, we are powerless to alter that part of jurisprudential history.