OR: Apparently pretextual community caretaking entry was unreasonable

Knock and talk about drug activity produced a babysitter who refused to consent, and the police implored her to consent, and she still refused. They decided to enter anyway under a community caretaking function claim because the house was dirty and in disarray. The court rejected a statutory argument posed by the state because the state’s argument was clearly [to me, anyway] a pretext for a drug search. State v. Goodall, 219 Ore. App. 325, 183 P.3d 199 (2008):

Additionally, when applying the emergency aid doctrine, the court focuses on the officer’s conduct at each step, viz., initial entry and then subsequent entry. See, e.g., State v. Weaver, 214 Ore. App. 633, 639-44, 168 P.3d 273, rev den, 343 Ore. 691, 174 P.3d 1017 (2007) (examining separately the officer’s initial entry, whereby he put his foot in the door, and the subsequent entry to search after the defendant was handcuffed and in the police vehicle); Burdick, 209 Ore. App. at 582-83 (the first entry caused by the officer opening a window and pulling aside curtains and the subsequent entry through the front door); State v. Will, 131 Ore. App. 498, 501, 885 P.2d 715 (1994) (initial entry to investigate report of domestic disturbance and subsequent entry after parties involved had left the premises). That approach requires the court to inquire about the officer’s subjective belief at each step and whether that subjective belief was reasonable at that time.

The step-by-step approach here reveals the difficulty in justifying the search of the residence. The detectives did not need to search the residence to find the child. The child, the only individual who may have needed protection, was in Waight’s arms while she was talking with the detectives in the entryway. Assuming a true emergency existed, that true emergency could have been alleviated by taking the child into protective custody, while waiting for a protective service worker from the Department of Human Services to arrive.