STATE v. JORDAN

HOWELL, J.

The principal question presented on this appeal is whether a police officer may enter a private dwelling to execute an arrest warrant without obtaining a search warrant.

The facts surrounding the entry and arrest are largely undisputed. Florine Davidson, Sandra Jordan, and defendant Nadine Jordan resided in a house in northeast Portland. Defendant is Sandra Jordan's sister. On January 15, 1977, the house was approached by two Portland police officers, Charles Ault and Sammy Ray Rosson, who had an outstanding warrant for Sandra Jordan's arrest. Ault had learned from reliable sources that Sandra was believed to be living at the house and that she was thought to be driving a yellow Pinto automobile. On the evening in question, a yellow Pinto was parked in the driveway of the house. Ault and Rosson called for reinforcements who surrounded the house. The two then went to the front door and were met by Florine Davidson and defendant Nadine Jordan. The officers stated their purpose and asked the women for their names and some identification.

Defendant Nadine Jordan identified herself as "Juanita Adams" but refused to produce any identification. Both women refused to let the police search the residence. The officers returned to their vehicle and ran a record check on Juanita Adams. The name was reported as an alias for Sandra Jordan. Not knowing whether defendant was Sandra Jordan, the officers returned to the house and took her into custody, intending to establish her identity by means of fingerprinting at the police station.

While seated in the police car, Office Ault observed a mug shot of Sandra Jordan and was uncertain that he had the right person. He ordered the other officers to return to the house to see if there was another person there who was actually Sandra Jordan. The officers entered the house without a search warrant and eventually found Sandra hiding in the attic.

Defendant was charged with hindering prosecution, ORS 162.325. Prior to trial, she filed a motion to suppress any evidence seized as a result of the entry into her home. The evidence she sought to suppress was the person of Sandra Jordan. The trial court denied the motion and, following a trial, defendant was convicted. Defendant's sole assignment of error on appeal is that the trial court should have suppressed the evidence obtained as a result of a search without a search warrant.

The Court of Appeals affirmed defendant's conviction in an opinion that focused principally on the question of whether the officers had probable cause to believe Sandra Jordan was still in the residence after they had taken defendant into custody. 36 Or. App. 45, 583 P.2d 1161 (1978). The court found that the officers did have such probable cause and that the entry was therefore justified under ORS 133.235 (5), which provides:

"In order to make an arrest, a peace officer may enter premises in which he has probable cause to believe the person to be arrested to be present."

The Court of Appeals' opinion was written prior to this court's decisions in State v. Olson, 287 Or. 157, 598 P.2d 670 (1979), and State v. Peller, 287 Or. 255, 598 P.2d 684 (1979), in which we held that an entry into a private home to arrest, without an arrest warrant, was justified only if the state showed the existence of exigent circumstances. Neither Olson nor Peller decided whether a search warrant in addition to an arrest warrant is necessary to arrest on private premises. That question is now squarely presented.

Defendant contends that the failure of the police to obtain a search warrant to enter her premises resulted in a violation of her statutory and constitutional rights. Before turning to the constitutional question in this case, we first examine Oregon statutory law to determine whether the right claimed by the defendant in this case is in fact protected by legislation. See State v. Spada, 286 Or. 305, 594 P.2d 815 (1979). ORS 133.535 provides, in part:

"The following are subject to search and seizure under [statutes authorizing search warrants]:

" * * * * *

"(4) A person for whose arrest there is probable cause or who is unlawfully held in concealment."

Although this statute permits the issuance of a search warrant to an officer seeking to arrest a suspect on private premises, the statute does not purport to require such a warrant. We conclude from this that Oregon statutes do not require an officer to obtain a search warrant prior to entering a private home to arrest.

We now consider the defendant's claim that the police conduct in this case violated article I, section 9 of the Oregon Constitution and the fourth amendment to the United States Constitution. Both these constitutional provisions, in substantially identical language, protect against unreasonable searches and seizures.

As background, while the common law recognized that "every man's house is his castle," it also held that "no one charged with a crime can have a castle against the King's or the State's warrant for his arrest." Wilgus, Arrest Without a Warrant, 22 Mich L Rev 541, 800-01 (1922); 1 Chitty, Criminal Law 51-59 (1816). A peace officer armed with an arrest warrant was therefore permitted to enter a private dwelling to effect an arrest if the officer had reason to believe the suspect was inside the dwelling, regardless of whether the officer also had a search warrant.

The United States Supreme Court has left unsettled the question whether and under what circumstances an officer may enter private premises to make a warrantless arrest. See United States v. Watson, 423 U.S. 411, 418 n. 6, 96 S Ct 820, 46 LEd 2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 113 n. 13, 95 S Ct 854, 43 L Ed2d 54 (1975); Coolidge v. New Hampshire, 403 U.S. 443, 474-81, 91 S Ct 2022, 29 L Ed 2d 564 (1971). This court has held, however, that absent exigent circumstances an arrest warrant is required before a police officer may enter private premises to make an arrest. State v. Peller, supra; State v. Olson, supra.

When this court decided State v. Olson, supra, we particularly relied on the United States Supreme Court opinion in Coolidge v. New Hampshire, supra, from which we quoted:

"* * * The case of Warden v. Hayden, supra [ 387 U.S. 294, 87 S Ct 1642, 18 L Ed 2d 782 (1967)], where the Court elaborated a `hot pursuit' justification for the police entry into the defendant's house without a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances. * * *" 403 US at 480-81 (emphasis added).

We also relied on People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, cert. denied 429 U.S. 929, 97 S Ct 335, 50 L Ed 2d 299 (1976), from which we quoted the following:

"* * * [I]n the absence of a bona fide emergency, or consent to enter, police action in seizing the individual in the home must be preceded by the judicial authorization of an arrest warrant." 545 P.2d at 1340 (emphasis added).

Many federal and state courts have held that a police officer may enter private premises to execute a valid arrest warrant as long as the officer reasonably believes that the subject of the arrest warrant is on the premises. See, e.g., United States v. Woods, 560 F.2d 660, 665-66 (5th Cir 1977), cert. denied 435 U.S. 906, 98 S Ct 1452, 55 L Ed 2d 497 (1978); United States v. Harper, 550 F.2d 610, 613-14 (10th Cir), cert. denied, 434 U.S. 837, 98 S Ct 128, 54 L Ed 2d 99 (1977); United States v. Cravero, 545 F.2d 406, on pet. for rehearing, 545 F.2d 420 (5th Cir 1976), cert. denied, 430 U.S. 983, 97 S Ct 1679, 52 L Ed2d 377 (1977); United States v. James, 528 F.2d 999, 1016-17 (5th Cir), cert. denied, 429 U.S. 959, 97 S Ct 382, 50 L Ed2d 326 (1976); Rice v. Wolff, 513 F.2d 1280, 1291-92 (8th Cir 1975), rev'd. on other grounds sub nom. Stone v. Powell, 428 U.S. 465, 96 S Ct 3037, 429 L Ed 2d 1067 (1976); United States v. Jones, 475 F.2d 723, 729 (5th Cir 1973); Rodriguez v. Jones, 473 F.2d 599, 605-06 (5th Cir), cert. denied, 412 U.S. 953, 93 S Ct 3023, 37 L Ed2d 1007 (1973); United States v. Brown, 151 US App DC 365, 369-370, 467 F.2d 419, 423-24 (DC Cir 1972); United States v. McKinney, 379 F.2d 259, 262-63 (6th Cir 1967); United States v. Alexander, 346 F.2d 561 (6th Cir 1965), cert. denied, 382 U.S. 993, 86 S Ct 575, 15 L Ed2d 480 (1966); State v. Platten, 225 Kan. 764, 594 P.2d 201 (1979); Nestor v. State, 243 Md. 438, 221 A.2d 364, 368 (1966); Cook v. State, 35 Md. App. 430, 371 A.2d 433 (1977); State v. Jemison, 14 Ohio St.2d 47, 236 N.E.2d 538 (1968); State v. Clark, 40 Ohio App.2d 365, 319 N.E.2d 605 (1974); Commonwealth v. Terebieniec, 268 Pa. Super. 488, 408 A.2d 1120 (1979); State v. McNeal, 251 S.E.2d 484 (W Va App 1978); People v. Stibal, 56 Ill. App.3d 1048, 14 Ill Dec 652, 372 N.E.2d 931 (1978).

In United States v. Cravero, supra, the court held that "when an officer holds a valid arrest warrant and reasonably believes that its subject is within premises belonging to a third party, he need not obtain a search warrant to enter for the purpose of arresting the suspect." 545 F.2d at 421. Accord, United States v. Woods, supra; United States v. Harper, supra. The Cravero court reasoned that a police officer who has already obtained an arrest warrant — a judicial determination of probable cause to believe that a suspect has committed an offense — may "determine that the suspect is probably within certain premises without an additional trip to the magistrate and without exigent circumstances." 545 F.2d at 421. We agree with the holding in Cravero and the other cases cited above.

Other courts have held that the Fourth Amendment requires police to obtain a search warrant prior to entering private premises to effect an arrest. See United States v. Prescott, 581 F.2d 1343, 1350 (9th Cir 1978); Government of Virgin Islands v. Gereau, 502 F.2d 914, 928 (3d Cir 1974), cert. denied, 420 U.S. 909, 95 S Ct 829, 42 L Ed2d 839 (1975); State v. Jones, 274 N.W.2d 273 (Iowa 1979); Laasch v. State, 84 Wis. 2d 587, 267 N.W.2d 278 (1978). We are of the opinion, however, that there is no constitutional requirement that police officers who hold a valid arrest warrant and have probable cause to believe the subject is located on private premises must also obtain a search warrant before they may enter the premises to execute the arrest warrant.

When we held in Olson that the Fourth Amendment applies when police enter private premises to effect an arrest, we essentially held that, absent exigent circumstances, arrests on private premises conducted outside the judicial process are per se unreasonable. See State v. Peller, 287 Or at 260. Cf. Katz v. United States, 389 U.S. 347, 357, 88 S Ct 507, 19 L Ed2d 576 (1967). The extent to which a judicial officer must be involved in approving an arrest on private premises, however, involves our consideration of the governmental interests in effective law enforcement. See, e.g., United States v. Watson, supra, 423 U.S. 411, 417; id. at 431-32 (Powell, J., concurring). As the United States Supreme Court has explained,

"Maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, but such a requirement would constitute an intolerable handicap for legitimate law enforcement." Gerstein v. Pugh, supra, 420 US at 113.

Judicial scrutiny of probable cause to search every place where the suspect may be located would unduly hamper the police in the performance of their duties. Apprehending a criminal suspect is not the same as searching for evidence or contraband. A suspect will not stay in one place; he will attempt to avoid capture. And this inherent mobility to escape often presents unforeseeable dangers that necessitate swift police action. See, e.g., United States v. McKinney, supra. The constitutional requirement of reasonableness does not mandate that we handicap police apprehension efforts by requiring officers to wait at the threshold while the suspect hides or flees or by requiring officers to return for a warrant to search each time the suspect flees to hide in another house or apartment. As one court recently explained, in holding that police with a valid arrest warrant and probable cause to believe the suspect is within may enter private premises to execute the warrant:

"We think this rule sound. On the one hand, common sense dictates that law officers, in possession of a valid arrest warrant, hold authority to take reasonable steps to execute the warrant. * * * A contrary rule [requiring a search warrant] would unduly hamper law officers in performance of their duties. Indeed, it would be anomalous and a senseless restraint upon police to permit them, when they hold a search warrant, to enter a residence by breaking down the door after they hear sounds of escape emanating from inside, but require them, for lack of a search warrant, to stand helplessly at the threshold while a suspect named in an arrest warrant secretes himself about the house or flees. * * * On the other hand, the requirement of probable cause to believe that the suspect is within prevents the police from indiscriminately entering and searching any home where they hope an accused may be. * * *." Commonwealth v. Terebieniec, supra, 408 A.2d at 1126.

We believe that constitutional rights will be protected as long as any arrest on private premises is supported by the judicial authorization of an arrest warrant and the police officer's probable cause to believe that the arrestee is within the premises. United States v. Cravero, supra; United States v. Brown, supra; United States v. McKinney, supra. The reasonableness of the officer's judgment is, of course, subject to review. Furthermore, the entry pursuant to an arrest warrant is valid only for the purpose of making the arrest and not for the purpose of conducting a general search. See United States v. Cravero, 545 F.2d at 421 n. 2. In the instant case, the only "evidence" seized by the police was Sandra Jordan — the person named in the arrest warrant.

Accordingly, we hold that police officers may enter private premises to make an arrest if they have a valid arrest warrant and probable cause to believe that the subject of the warrant is present on the premises. Neither the fourth amendment to the United States Constitution nor article I, section 9, of the Oregon Constitution requires that police officers also obtain a search warrant.

The Court of Appeals held that the police officers clearly had probable cause to believe that Sandra Jordan, the person named in the arrest warrant, was on the premises. The defendant does not contend that the police never had probable cause to believe that Sandra Jordan was within the house, but argues that once the police arrested defendant, believing she was Sandra Jordan, "[s]ome additional fact, indicating that defendant might not be Sandra, was necessary to a finding of probable cause." Assuming this to be the case, we do not agree with defendant's contention that after her arrest no additional facts had been adduced supporting probable cause to believe Sandra was still in the house. During the suppression hearing, Officer Ault testified that after taking the defendant into custody,

"* * * I then got in the police car and observed a mug shot of Sandra Jordan that we were looking for and was not sure still if the gal we had in custody was the right one. So I advised the other officers to go back up to the house."

This photographic comparison was sufficient to lead a reasonably prudent person to believe that the defendant was not Sandra Jordan and that Sandra was still on the premises.

The defendant argues that where an arrest warrant exists for a suspect, only one person is the suspect and thus when one person is arrested, whatever probable cause there is to look for the suspect is used up. The fact that there is a warrant for one person's arrest, however, should make no difference as long as there is, in fact, probable cause for both the first arrest and the subsequent search.

In the present case, the officers had probable cause to believe that Sandra Jordan was in the house, but they did not know for certain which person in the house was Sandra Jordan. They also did not know that the defendant and Sandra Jordan were sisters. Probable cause may justify the arrest of more than one person if circumstances exist that would lead a reasonably prudent person to believe that each suspect could be the person named in the arrest warrant. The defendant's presence at the house and her use of the name Juanita Adams were circumstances that supported the reasonable belief that defendant was Sandra Jordan. However, the police officer's uncertainty regarding defendant's resemblance to the photograph of Sandra Jordan, her sister, supported a reasonable belief that Sandra Jordan was still in the house. The Court of Appeals, therefore, did not err in holding that the police officers had probable cause to enter the defendant's premises.

Affirmed.