OR: Direction to “open the door” resulted in an unreasonable search

The officer was investigating defendant for DUII and followed him home. His knock on the door and direction to “open the door” was a command to submit to a search. The officer’s observation of defendant’s condition is suppressed. State v. Dorado, 307 Ore. App. 641, 2020 Ore. App. LEXIS 1434 (Nov. 25, 2020):

Similarly, in this case, Smith told defendant to open the door, which allowed Smith to observe signs of intoxication that were otherwise concealed. See State v. Turechek, 74 Ore. App. 228, 232-33, 702 P2d 1131 (1985) (holding that an “officer conducted a search * * * when he opened the door to inspect the VIN”). If Smith had knocked on the door and merely waited for a response, or knocked on the door, identified himself, and asked “would you please open the door,” this case would be different. Here, however, Smith’s statement was not a question. There was nothing about Smith’s intonation or inflection to suggest that the phrase “open the door” was a request. Rather, it was a command at 3:00 a.m. from an armed, uniformed law enforcement officer standing outside of defendant’s home. Smith’s command—without a lawful basis—compelled defendant to open the door. That was an unconstitutional search.

Because it is undisputed that Smith did not develop probable cause to arrest defendant for DUII until after defendant opened the door and revealed evidence of his impairment and the hit-and-run offense, and the state offers no other justification for the search, the trial court erred in denying the motion to suppress.