refused instruction in Oregon

1990For the reasons stated below, we hold that it did. [17] This court has never before specifically held that noncompliance with the knock and announce statute may be excused because of an officer's apprehension of peril. [18] In State v. Hollman, 251 Or. 416 , 446 P.2d 117 (1968), and again in State v. Johnson, 253 Or. 416 , 454 P.2d 852 (1969), this court refused to rule on the question because *761 it had not been preserved in the trial courts.

1990For the reasons stated below, we hold that it did. [17] This court has never before specifically held that noncompliance with the knock and announce statute may be excused because of an officer's apprehension of peril. [18] In State v. Hollman, 251 Or. 416 , 446 P.2d 117 (1968), and again in State v. Johnson, 253 Or. 416 , 454 P.2d 852 (1969), this court refused to rule on the question because *761 it had not been preserved in the trial courts.

1990In State v. Cortman, supra , after the officers made the required announcement they heard "scurrying about inside the room." After knocking again and receiving no response, they "pushed the door in." This court stated that after making the required announcement, "[t]he reasonableness of the officer's delay [in entering a premise] in a given set of circumstances will depend upon a number of factors, including the * * * danger to the officers, * * *." 251 Or. at 570-71, 446 P.2d 681 .

1990For the reasons stated below, we hold that it did. [17] This court has never before specifically held that noncompliance with the knock and announce statute may be excused because of an officer's apprehension of peril. [18] In State v. Hollman, 251 Or. 416 , 446 P.2d 117 (1968), and again in State v. Johnson, 253 Or. 416 , 454 P.2d 852 (1969), this court refused to rule on the question because *761 it had not been preserved in the trial courts.

1990For the reasons stated below, we hold that it did. [17] This court has never before specifically held that noncompliance with the knock and announce statute may be excused because of an officer's apprehension of peril. [18] In State v. Hollman, 251 Or. 416 , 446 P.2d 117 (1968), and again in State v. Johnson, 253 Or. 416 , 454 P.2d 852 (1969), this court refused to rule on the question because *761 it had not been preserved in the trial courts.

1982Defendant contends that the Supreme Court approved a similar instruction in State of Oregon v. Doud, 190 Or 218, 230 , 225 P2d 400 (1950).

1982Defendant contends that the Supreme Court approved a similar instruction in State of Oregon v. Doud, 190 Or 218, 230 , 225 P2d 400 (1950).

1979At trial, the court refused a defense request for an instruction that defendant’s "insanity, having once been shown to exist, is legally presumed to continue until the contrary is shown.” ORS 41.360(32). 1 Defendant was convicted, and the Court of Appeals affirmed. 32 Or App 619 , 574 P2d 1144 (1978).

1979At trial, the court refused a defense request for an instruction that defendant’s "insanity, having once been shown to exist, is legally presumed to continue until the contrary is shown.” ORS 41.360(32). 1 Defendant was convicted, and the Court of Appeals affirmed. 32 Or App 619 , 574 P2d 1144 (1978).

1973In so doing, it refused to give an instruction that the killing was justified if defendant “had reason to believe, and did believe, that he was in imminent danger of death or great bodily harm at the hands of the deceased.” The Oregon Supreme Court *560 held that the refused instruction should have been given: “* * * Where * * * the assault is attended with such demonstration [of imminent danger to life or great bodily injury, real or apparent], and the present ability to execute it, whether the assailant is armed with a deadly weapon or not, as to indicate that he is in imminent danger of bei

1973The Gray court concluded that “[t]he present was manifestly a proper case to be submitted to the jury * * * as to whether the defendant, at the time he fired at the deceased, acting from the standpoint of a reasonable man, had reason to believe that he was in imminent peril of great bodily harm or of losing his life.” 43 Or at 455-456 . .

1971There is nothing in those opinions inconsistent with our holding in State v. Steffes, supra, in which, after a discussion of People v. Maddox, 46 Cal2d 301, 294 P2d 6 , cert denied 352 US 858 , 77 S Ct 81 , 1 L Ed 2d 65 (1956), and Ker v. California, supra, we held: “* * * Thus they [the police] had reasonable grounds to believe that tarrying in the hall outside *383 the defendant’s door might expose them to danger. * * * There were exigent circumstances in this case which justified the officers in entering Steffes’ room without first announcing their purpose.” 2 Or App at 168-69 .

1971There is nothing in those opinions inconsistent with our holding in State v. Steffes, supra, in which, after a discussion of People v. Maddox, 46 Cal2d 301, 294 P2d 6 , cert denied 352 US 858 , 77 S Ct 81 , 1 L Ed 2d 65 (1956), and Ker v. California, supra, we held: “* * * Thus they [the police] had reasonable grounds to believe that tarrying in the hall outside *383 the defendant’s door might expose them to danger. * * * There were exigent circumstances in this case which justified the officers in entering Steffes’ room without first announcing their purpose.” 2 Or App at 168-69 .

1971There is nothing in those opinions inconsistent with our holding in State v. Steffes, supra, in which, after a discussion of People v. Maddox, 46 Cal2d 301, 294 P2d 6 , cert denied 352 US 858 , 77 S Ct 81 , 1 L Ed 2d 65 (1956), and Ker v. California, supra, we held: “* * * Thus they [the police] had reasonable grounds to believe that tarrying in the hall outside *383 the defendant’s door might expose them to danger. * * * There were exigent circumstances in this case which justified the officers in entering Steffes’ room without first announcing their purpose.” 2 Or App at 168-69 .

1971There is nothing in those opinions inconsistent with our holding in State v. Steffes, supra, in which, after a discussion of People v. Maddox, 46 Cal2d 301, 294 P2d 6 , cert denied 352 US 858 , 77 S Ct 81 , 1 L Ed 2d 65 (1956), and Ker v. California, supra, we held: “* * * Thus they [the police] had reasonable grounds to believe that tarrying in the hall outside *383 the defendant’s door might expose them to danger. * * * There were exigent circumstances in this case which justified the officers in entering Steffes’ room without first announcing their purpose.” 2 Or App at 168-69 .

1971There is nothing in those opinions inconsistent with our holding in State v. Steffes, supra, in which, after a discussion of People v. Maddox, 46 Cal2d 301, 294 P2d 6 , cert denied 352 US 858 , 77 S Ct 81 , 1 L Ed 2d 65 (1956), and Ker v. California, supra, we held: “* * * Thus they [the police] had reasonable grounds to believe that tarrying in the hall outside *383 the defendant’s door might expose them to danger. * * * There were exigent circumstances in this case which justified the officers in entering Steffes’ room without first announcing their purpose.” 2 Or App at 168-69 .

1960Robbins v. Irwin, 180 Or 667 , *127 681, 178 P2d 935 (1947); Hogan v. Mason Motor Co., 133 Or 14, 17 , 288 P 200 (1930); Riley v. Good, 142 Or 155, 161 , 18 P2d 222 (1933).

1960Robbins v. Irwin, 180 Or 667 , *127 681, 178 P2d 935 (1947); Hogan v. Mason Motor Co., 133 Or 14, 17 , 288 P 200 (1930); Riley v. Good, 142 Or 155, 161 , 18 P2d 222 (1933).

1960Robbins v. Irwin, 180 Or 667 , *127 681, 178 P2d 935 (1947); Hogan v. Mason Motor Co., 133 Or 14, 17 , 288 P 200 (1930); Riley v. Good, 142 Or 155, 161 , 18 P2d 222 (1933).

1960Robbins v. Irwin, 180 Or 667 , *127 681, 178 P2d 935 (1947); Hogan v. Mason Motor Co., 133 Or 14, 17 , 288 P 200 (1930); Riley v. Good, 142 Or 155, 161 , 18 P2d 222 (1933).

1960Robbins v. Irwin, 180 Or 667 , *127 681, 178 P2d 935 (1947); Hogan v. Mason Motor Co., 133 Or 14, 17 , 288 P 200 (1930); Riley v. Good, 142 Or 155, 161 , 18 P2d 222 (1933).

1960Robbins v. Irwin, 180 Or 667 , *127 681, 178 P2d 935 (1947); Hogan v. Mason Motor Co., 133 Or 14, 17 , 288 P 200 (1930); Riley v. Good, 142 Or 155, 161 , 18 P2d 222 (1933).