Defendant left the front yard of a known drug house on a bicycle and an officer followed in car and found various traffic offenses, such as not signaling and not stopping for a stop sign. He had the defendant sit on the curb while he wrote a ticket. He noticed a bulge in the defendant’s pocket and he patted the defendant down, asking what was inside, and defendant stammered that it was “a point” (needle). The search was invalid. State v. Petri, 162 P.3d 1053 (Ore. App. 2007):<\/p>\n
The state first contends that Durbin inevitably would have discovered the evidence after arresting defendant pursuant to the warrant. Evidence obtained in violation of a defendant’s rights under Article 1, section 9, may be admissible if the state can demonstrate, by a preponderance of the evidence, that police would have used certain proper and predictable investigatory procedures that would inevitably have resulted in discovery of the evidence at issue. State v. Johnson,<\/em> 335 Ore. 511, 514 n 2, 73 P.3d 282 (2003). Here, the state contends that, after arresting defendant on the warrant, Durbin would have searched him both for reasons of officer safety and as part of an inventory. The state’s inevitable discovery argument thus separates into two prongs: (1) a search incident to a lawful arrest on the warrant, justified by officer safety, and (2) an inventory. We examine each in turn.<\/p>\n
The first part of the state’s argument fails because there is no evidence that such a search was required to protect the officer’s safety. <\/p>\n
“Under the Oregon Constitution, a valid custodial arrest does not by itself authorize a search. State v. Caraher<\/em>, 293 Ore. 741, 757-60, 653 P.2d 942 (1982). A warrantless search must be justified by the circumstances surrounding the arrest. Id.<\/em> ‘Under Article I, section 9, there are three valid justifications for a search incident to lawful arrest: to protect the officer’s safety, to prevent the destruction of evidence, and to discover evidence relevant to the crime for which the defendant was arrested.’ State v. Hoskinson,<\/em> 320 Ore. 83, 86, 879 P.2d 180 (1994).” <\/p><\/blockquote>\n
State v. Sopiwnik,<\/em> 176 Ore. App. 127, 132, 30 P.3d 430 (2001) (footnote omitted). Here, the state contends only that, after arresting defendant pursuant to the warrant, Durbin would have searched him for officer safety reasons. Assuming that Durbin inevitably would have arrested defendant pursuant to the warrant and then seized him, however, there is no evidence that officer safety concerns would have required Durbin to open the sunglasses case.<\/p><\/blockquote>\n
Burglar alarm report from monitoring company is exigent circumstances to enter the premises to look for intruders. Only the bedroom had been disturbed and evidence of marijuana had been seen. The owner consented to a further search to avoid the police looking through the whole house. The entry and later search was valid. State v. Inghram, 2007 Tenn. Crim. App. LEXIS 555 (July 11, 2007). (Comment:<\/em> My associate had a case just like this in Arkansas, and he lost too, as I predicted. If one is going to keep dope in the house, you shouldn’t have a burglar alarm inviting a police response to and entry into your house while you are gone.)<\/p>\n","protected":false},"excerpt":{"rendered":"
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