"`Exigent circumstances involve an emergency situation requiring swift action to prevent . . . the destruction of evidence.' [State] v. Roberts, 75 Or. App. 292 [, 295, 706 P.2d 564] (1985). "Once Officer Pert had seized the package, it was incumbent upon the State to show why it could not get a warrant (as was done in [State] v. Kosta, 75 Or. App. 713 [, 708 P.2d 365] (1985)), within a reasonable period of time. [State] v. Roberts, supra; [State] v. Robert [sic], 46 Or. App. 843[, 612 P.2d 771] (1980). "The state failed to carry its burden to prove exigency and the Defendant's Motion to Suppress is granted."
In order to justify a warrantless entry of a residence to effectuate an arrest, the state must demonstrate both probable cause to arrest and exigent circumstances justifying the entry. Payton v. New York, 445 U.S. 573, 590, 100 S Ct 1371, 63 L Ed 2d 639 (1980); State v. Rubert, 46 Or. App. 843, 612 P.2d 771 (1980). The officers had probable cause to believe that defendant was driving his car while under the influence of intoxicants and probable cause to believe that defendant was in the apartment.
Assuming without deciding that there was probable cause to arrest in this case, we find that the state did not carry its burden of demonstrating that exigent circumstances required the entry. In State v. Rubert, 46 Or. App. 843, 612 P.2d 771 (1980), a case arising out of the same incident as that before us, we found that the state had demonstrated neither probable cause to arrest nor exigent circumstances justifying entry. The facts before us are more complete than those provided in Rubert.
This was a slender thread on which to hang a belief that the suspect was inside. See State v. Rubert, 46 Or. App. 843, 845-847 (1980) (description of a house "on the west side of 113th Street, about halfway between Holgate and Powell . . . [with] a small sports car in the driveway" was too "loose" for police to have probable cause to search the house). We do not undertake to distinguish "clear probable cause" from any other kind of probable cause.
Generally, if there is a reasonable possibility of injury or death if the entry not be made, or if there is a likelihood that the suspect will escape if the entry not be made, "exigent circumstances" exist. See Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Dorman v. United States, D.C. Cir., 435 F.2d 385 (1970); State v. Rubert, 46 Or. App. 843, 612 P.2d 771 (1980); State v. Fauver, Hawaii App., 612 P.2d 119 (1980); State v. Ferguson, 119 Ariz. 55, 579 P.2d 559 (1978); Howard v. State, Tenn.Cr.App., 599 S.W.2d 280 (1980); People v. Baca, Colo., 600 P.2d 770 (1979); People v. Sakalas, 85 Ill. App.3d 59, 40 Ill. Dec. 29, 405 N.E.2d 1121 (1980). In answer to the question "Why did you not obtain a warrant prior to making the arrest?"
Without any evidence of that time or any evidence concerning the time required to secure the evidence, we will not assume that the officers could not have obtained a warrant within a reasonable time. [State v. Rubert, 46 Or.App. 843, 612 P.2d 771 (1980) ].”Roberts, 75 Or.App. at 297, 706 P.2d 564.
Because neither the informant's reliability nor the basis for the informant's knowledge was established, the officers lacked a reasonable suspicion to believe that Ford was in the residence at 2347 Bethel Street. See McGhee v. Commonwealth, 25 Va. App. 193, 203, 487 S.E.2d 259, 264 (1997) (en banc).See also State v. Rubert, 612 P.2d 771 (Or. App. 1980). In fact, the failure of the officers to take reasonable steps to corroborate the information supplied by the bondsman demonstrates the fallacy of the majority's position. Had the officers first determined who resided at 2347 Bethel Street, obtained a description of Ford, determined the purpose for which the capias had been issued — all perfectly reasonable steps to take — the incident may never have occurred.
See McGee v. Commonwealth, 25 Va. App. 193, 203, 487 S.E.2d 259, 264 (1997) (en banc). See also State v. Rubert, 46 Or. App. 843, 612 P.2d 771 (1980). Officer Samuels lacked a reasonable suspicion to believe that Washington was Ford.
They were involved in securing the neighborhood, in obtaining assistance and in questioning defendants. Defendants rely on State v. Rubert, 46 Or. App. 843, 612 P.2d 771 (1980), and State v. Roberts, 75 Or. App. 292, 706 P.2d 564 (1985), for the proposition that the state must prove that a warrant could not be obtained. However, those cases did not involve findings that exigent circumstances existed.
In either event, the officers had time to obtain a warrant before the planned meeting. See State v. Rubert, 46 Or. App. 843, 612 P.2d 771 (1980). The exigency that the evidence would be destroyed was brought about by the police and, as such, cannot support the warrantless entry into defendant's house.