FILED: November 24, 2004

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Appellant,

v.

DAVID LEO BARCLAY,

Respondent.

C013143CR; A120435

Appeal from Circuit Court, Washington County.

Thomas W. Kohl, Judge.

Argued and submitted July 21, 2004.

Jonathan H. Fussner, Attorney-In-Charge, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

John J. Tyner III argued the cause for respondent. With him on the brief was Tyner & Associates.

Before Edmonds, Presiding Judge, and Wollheim and Schuman, Judges.

WOLLHEIM, J.

Reversed and remanded.

WOLLHEIM, J.

The state appeals an order granting defendant's motion to suppress evidence. ORS 138.060(1)(c). We review the court's order for errors of law, State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993), and reverse.

We state the facts based on the trial court's findings. Those findings are binding on our court if there is sufficient evidence in the record to support those findings. Id. at 74-75. At 3:00 a.m., Officers Blaylock and Tannenbaum responded to a call of a possible domestic altercation at an apartment complex where a woman could be heard screaming the name "Davis." On arrival at the apartment complex, the officers attempted to locate the apartment that was the source of the disturbance. While investigating, the officers heard loud voices coming from a third-floor balcony and heard a female voice scream something that sounded like "Davis."

The officers went up to the third-floor apartment and knocked on the door. A male voice from inside said, "Come in." The officers knocked again and, this time, a female voice from inside stated, "I said come in, Goddamn it, and stop knocking." The officers entered the apartment and went out to the balcony from where the voices were coming. The officers found defendant and a female companion, Beth Jackson, on the balcony laughing and visibly intoxicated. After a brief exchange, the officers concluded there was no domestic altercation. As the officers were getting ready to leave, they noticed several marijuana plants in plain view. When asked about the plants, defendant replied that they were his.

Defendant was indicted for unlawful manufacture of a controlled substance, unlawful delivery of a controlled substance, and unlawful possession of a controlled substance. Defendant moved to suppress evidence of the marijuana plants on the ground that the officers illegally entered defendant's apartment. The trial court granted defendant's motion on the ground that the officers did not announce their identity before entering, stating:

"In this particular case, the police officers had no warrant. They just knocked on the door. They heard somebody say come in. * * * [T]here should be some type of obligation on the police officers to at least announce who they are before entering the premises[.]"

The state appeals, arguing that defendant consented to the officers' entry into his apartment and that the "knock and announce" rule does not apply. Defendant responds that the trial court was correct in concluding that the officers should have announced their identity before entering and that he did not consent to the officers' entry because Jackson, not defendant, told the officers to "come in."

The "knock and announce" rule is required in Oregon by ORS 133.575(2), and by the Fourth Amendment to the United States Constitution. (1) See Wilson v. Arkansas, 514 US 927, 930, 115 S Ct 1914, 131 L Ed 2d 976 (1995) (holding that common-law "knock and announce" rule is "part of the Fourth Amendment reasonableness inquiry"). Under the rule, officers must first knock and announce who they are and the authority and purpose of the entry. See, e.g., ORS 133.575(2). However, the rule is required only in the execution of a warrant or where there are exigent circumstances authorizing forcible entry; it "presupposes that the police have a right to entry." State v. Olson, 287 Or 157, 161, 598 P2d 670 (1979). "In the absence of such a right, there is no occasion to consider whether the 'knock and announce' rule has been complied within a constitutionally proper manner." Id. In this case, the officers were not executing a search or arrest warrant and there were no exigent circumstances; they had no right of entry that would have allowed them to enter without consent. Therefore, we conclude that the officers had no duty to announce their identity.

Defendant also argues that Jackson was the one who told the officers to "come in" and that she lacked actual authority to give consent. (2) Under Article I, section 9, of the Oregon Constitution, a third party must have actual authority to give consent. State v. Ready, 148 Or App 149, 152-53, 939 P2d 117, rev den, 326 Or 68 (1997). However, the trial court specifically found that both defendant and Jackson told the officers to "come in." The first "come in" was in a male voice, and defendant was the only male in the apartment. Telling the officers to "come in" after they knocked on the door was an invitation for them to do so. See State v. Drouhard, 31 Or App 1083, 1085-86, 572 P2d 331 (1977), rev den, 282 Or 189 (1978) (affirming a warrantless entry into home after police knocked and heard a voice say "come in" because the entry was "invited"). Thus, defendant consented to the officers' entry into his apartment.

Reversed and remanded.


1. The "knock and announce" rule is not a requirement of the Oregon Constitution. See State v. Ordonez-Villanueva, 138 Or App 236, 240, 908 P2d 333 (1995), rev den, 322 Or 644 (1996).

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2. Whether defendant was actually the one who gave consent to enter, or whether Jackson had actual authority to give consent, was not argued to the trial court.

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