Lead Opinion
Dеfendant appeals a judgment of conviction for unlawful delivery of methamphetamine that was based on evidence obtained from a warrantless search of defendant’s Jeep. Defendant assigns error to the trial court’s denial of her motion to suppress evidence, arguing that the automobile exception to the warrant requirement did not apply to the search of her Jeep and, hence, that the search violated Article I, section 9, of the Oregon Constitution. We agree with defendant and reverse her conviction.
A Beaverton police officer, McNair, arranged a drug transaction between an informant and Compton, a suspect in drug activity for whom an arrest warrant had been issued. Compton agreed to meet the informant to facilitate the purchase of half an ounce of methamphetamine. Compton served in the deal as a drug broker, telling the informant that defendant would supply the drugs. Compton told the informant to look for a silver Jeep or a red sedan in a WinCo parking lot.
Henderson, a plainclothes officer, circled the WinCo parking lot in an unmarked car, awaiting the transaсtion. When he returned to the front area of the parking lot, he saw a silver Jeep that had not been there a minute before. The Jeep had stopped some distance away from other vehicles and was positioned askew, across several parking spaces. Henderson watched Compton speak to the occupants and then lean through the open passenger window. Henderson advised other officers of what he believed to be a drug transaction. The officers approached and arrested Compton on the outstanding warrant. Defendant sat in the driver’s seat of the Jeep with the engine running while the police arrested Compton. Defendant asked if she could leave, and McNair said that she could not because she was a subject of a police investigation. Defendant told McNair that she did not want to get out of the Jeep. McNair was concerned, however, about a sheathed dagger on the rear passenger floorboard at the feet of a passenger and ordered everyone in the Jeep to step out of it.
Although she initially refused, defendant ultimately agreed tо allow a drug dog to sniff the exterior of the Jeep. The dog sniffed the outside of the Jeep and twice alerted officers to the presence of drugs. Based on the dog’s responses, the officers decided to search the interior of the Jeep. Inside the Jeep, the dog alerted to defendant’s purse, in which the police found half an ounce of methamphetamine and a lipstick case containing additional drugs. The state subsequently charged defendant with both unlawful possession and unlawful delivery of methamphetamine.
Article I, section 9, guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.”
The Oregon Supreme Court established the Orеgon automobile exception as a subcategory of the exigent-circumstances exception in 1986 in State v. Brown,
The court established the Oregon automobile exception in Brown as a “‘per se exigency rule.’” Id. at 277. Under the exception articulated in Brown, police who have lawfully brought a moving automobile to a stop have authority to search it without a warrant if they have probable cause to believe that the automobile contains crime evidence or contraband. Id. at 276. It is the mobility of the automobile at the time that the police stop it that establishes the exigency.
The Brown court acknowledged the importance of the warrant requirement and anticipated that technological advances would likely soon allow “the warrant requirement of the state and federal constitutions [to] be fulfilled virtually without exception.” Id. at 278 n 6. It nonetheless chose to create the Oregon automobile exception because it believed that the police “need clear guidelines by which they can gauge and regulate their conduct rather than trying to follow a complex set of rules dependent upon particular facts regarding the time, location and manner of highway stops.” Id. at 277.
An automobile that is mobile can mean one that is movable, that is, capable of moving, as well as one that is moving.
In Kock, the defendant’s employer suspected that the defendant was stealing merchandise from the store at which the defendant worked and arranged for police officers to stake out the store parking lot during the defendant’s work shift, which was roughly from 4:00 a.m. to 6:30 a.m. while the store was closed. The officers saw the defendant park his car in the lot before 4:00 a.m. and enter the store without carrying anything with him. He came out of the store at 5:42 a.m. pushing a floor-washing machine with a two-foot long brown box on top that was covered by a newspaper. He left the machine at a loading dock, took the box to his car, removed a package from the box, placed the package behind the passenger seat of his car, and partially covered the package with a pair of pants. After smoking a cigarette, the defendant re-entered the store with the machine, box, and newspaper. Believing that the package that the defendant had placed in his car was merchandise that he had stolen from the store, the police opened the door to the defendant’s car and seized the package, which turned out to contain diapers. After obtaining additional police support, the police entered the store and arrested the defendant for theft. The trial court denied the defendant’s motion to suppress the evidenсe obtained from the warrantless search of his car, and we affirmed.
The Supreme Court reversed, concluding, among other things, that the search of the car did not come within the Oregon automobile exception. It explained:
“[W]e emphasized in [Brown] that we were not confronted with the search of a vehicle that was not mobile or that had not just been lawfully stopped by a police officer. We are now confronted with such a case. Although logically it can be argued that the rationale of the seminal case of Carroll v. United States,267 US 132 ,45 S Ct 280 ,69 L Ed 543 (1925), and its progeny * * * would justify extending the automobile exception to automobiles that are capable of mobility, we elect to draw the so-called bright line of Brown just where we left it in that case: *** [Automobiles that have just been lawfully stopped by police may be searched without a warrant and without a demonstration of exigent circumstances when police have probable cause to believe that the automobile contains contraband or crime evidence. In this case, we assume for the sake of argument that there was probable cause for the search of the automobile. We nevertheless hold that any search of an automobile that was parked, immobile and unoccupied at the time the police first encountered it in connection with the investigation of a crime must be authorized by a warrant issued by a magistrate or, alternatively, the prosecution must demonstrate that exigent circumstances other than the potential mobility of the automobile exist.”
Kock,
In other words, the Oregon automobile exception established in Brown to which the court adhered in Kock applies to automobiles that have just been lawfully brought to a stop by the police, that is, to automobiles that are moving when stopped by the police. It does not apply to automobiles that are parked, immobile, and unoccupied when first encountered by the police in connection with a crime.
The Supreme Court next confronted the reach of the Oregon automobile exception twenty years after Brown and Kock in State v. Meharry,
A Umatilla police officer responded to the chief’s call and drove out of the parking lot of the police department as the defendant and the chief drove by him. The officer watched as the defendant pulled into the convenience-store parking lot. He followed the defendant
Before trial, the defendant moved to suppress the evidence obtained from the warrantless search of her van. The trial court granted the motion, and we affirmed. On review, the Supreme Court concluded that the search of the van came within the Oregon automobile exception and, hence, that the trial court had erred in granting the defendant’s suppression motion.
Both we and the trial court had concluded that the van was not mobile when the police officer first encountered it in connection with a crime because the van was parked in the store parking lot when the officer parked his patrol car behind the van and confronted the defendant in the store. The Supreme Court rejected that conclusion, reasoning that the officer
“first encountered defendant’s van in connection with a crime when he saw her drive by the police station. At that point, the van was mobile and [the fire chief’s] reported observations gave [the officer] reasonable suspicion to believe that defendant was driving under the influence of intoxicants.”
Id. at 179.
Further, although the officer had not stopped the defendant and, hence, her van while the van was moving, as the officer had done in stopping the car in Brown, the court did not believe that that difference affected the exigency on which the Brown court had based the Oregon automobile exception. The van in Meharry was as mobile at the time of the search as was the car in Brown notwithstanding that difference, in that both could readily be moved ‘““out of the locality or jurisdiction in which the warrant must be sought.’”” Id. at 180 (quoting Brown,
As the Supreme Court subsequently confirmed in State v. Kurokawa-Lasciak,
The Supreme Court had to revisit the application of the Oregon automobile exception in Kurokawa-Lasciak because, relying on Meharry and several of our own cases, we had held in Kurokawa-Lasciak that “ ‘a vehicle is “mobile” for purposes of the automobile exception as long as it is operable,’”
“‘when officers first encounter a car in connection with a crime, does the automobile exception’s “mobility” requirement demand evidence that the officers saw the car being driven, or is it enough that (1) officers develop probable cause that the car contains evidence of a crime, and (2) no evidence exists that the car is inoperable?”’
Id. at 186.
In answering that question, the court undertook an extensive review of its cases that
Second, the bright line that the court had drawn to identify automobiles that are subject to search under the Oregon exception — viz., that they had to be mobile when first encountered in connection with a crime — could logically be drawn elsewhere. As the court explained, the Kock court had acknowledged
“that, logically, the defendant’s parked vehicle was as capable of mobility as was a vehicle that was moving when it was stopped by the police, and that the United States Supreme Court had interpreted the warrant requirement of the federal constitution to permit warrantless searches of automobiles ‘capable’ of mobility. [Kock, 302 Or] at 32. However, the court specifically elected not to adopt the Supreme Court’s rationale or to extend the Oregon exception. Instead, the court chose to ‘draw the so-called bright line of Brown just where [it] left it in that case[.]’ Id. at 32-33.”
Kurokawa-Lasciak,
Those principles provide the underpinning for the distinction that the Kurokawa-Lasciak court said was crucial to its decision in Meharry. The van in Meharry came within the Oregon automobile exception because of its status when the officer first encountered it in connection with a crime — viz., when it was mоving. The van’s status when the officer parked behind it in the parking lot of the convenience store — viz., parked within moments of the officer’s arrival, occupied by a passenger, and with the driver running an errand in the store who would promptly have driven the van away had the officer not intervened — was insufficient to bring the van within the exception. Id. at 191-93.
The distinction in the van’s status that th eKurokawaLasciak court identified is strictly binary, which is consistent with the two meanings of the word “mobile,” viz., moving and movable. The van in Meharry was moving — not movable or capable of mobility — when the officer first encountered it. The van was movable or capable of mobility — not moving — when it was in the parking lot. Hence, although the court did not put the point this way, the answer to the question that the state had posed on review in Kurokawa-Lasciak — whether mobility for purposes of the Oregon exception requires officers to see the car being driven when they first encounter it in connection with a crime — is “Yes.”
Here, defendant’s Jeep was parked in a parking lot when the officers first encountered it in connection with a crime. Although it had arrived in the parking lot within a minute of when the officers encountered it, had its engine running, and was occupied by a driver who presumably would promptly have driven it away had the officers not intervened, the Jeep was not moving when the officers encountered it, but, rather,
Although the search of the Jeep did not come within the per se exigency rule of Oregon’s automobile exception, the Jeep might nonetheless have been subject to a warrant-less seizure and search by the police under the exigent-circumstances exception to the warrant requirement. However, the state did not undertake to establish that the search was authorized under that exception or any other exception to the warrant requirement. Hence, the warrant-less search of the Jeep violated Article I, section 9, and the trial court erred in denying defendant’s motion to suppress the evidence obtained from the search.
The dissent disputes our conclusion. In its view, it is not necessary for a vehicle to be moving when the police first encounter it in connection with a crime — or, alternatively, for the police to bring it to a stop while it is moving — in order for the vehicle to come within the Oregon exception. According to the dissent, it is sufficient that the vehicle be one that has moved recently and that is occupied by a driver who would promptly drive it away if the police did not intervene.
As our discussion of Kurokawa-Lasciak and Meharry indicate,
Here, when the police first encountered the Jeep in connection with a crime, it was parked in a store parking lot. It had arrived a minute before the police arrived, and the driver was in it with the engine running when the police stopped the driver. The only difference between the Jeep in this case and the van in the parking lot in Meharry is the location of their respective drivers. That difference bears on how quickly the two parked vehicles would have moved but for the intervention of the police, viz., perhaps seconds for the Jeep and a minute or two for the van, but that is not a difference that has (or can have) any significance to the application of the Oregon exception. Because the parked van in Meharry did not come within the Oregon exception based on its status when the police encountered it in the parking lot, it follows that the parked Jeep did not come within the exception, either.
The dissent disputes that the Oregon exception is based on a strictly binary distinction between vehicles that are moving and those that are movable when the police first encounter them in connection with a crime. However, the distinction is a necessary consequence of the Oregon Supreme Court’s decision to establish an automobile exception as a form of per se exigency that is not coextensive with the federal exception and that identifies the circumstances that bring automobiles within the Oregon exception.
The standard that the dissent urges is similar to the standard for the federal automobile
Of course, contrary to the Kock court’s description of the Oregon automobile exception as one that applies to vehicles that the police have lawfully brought to a stop, see Kock,
By rejecting the application of the Oregon exception to vehicles that are movable or capable of moving when first encountered by the police, the Oregon Supreme Court necessarily was left with a standard of mobility that is focused on the alternative meaning of mobility, namely a “moving body or part,” here, a moving vehicle. Tellingly, no Oregon Supreme Court case has applied that term to a vehicle that was not moving when first encountered by the police in connection with a crime or that was not lawfully brought to a stop by the police.
The dissent contends that a strict distinction between moving and movable vehicles operates to exclude from the Oregon exception vehicles whose functional status is indistinguishable from vehicles that come within the exception. We do not dispute that a bright-line rule that distinguishes between vehicles that are subject to a rule of per se exigency and those that are subject to an individualized assessment of exigency under the exigent-circumstances exception has that effect. As noted earlier, the van in the parking lot in Meharry is functionally equivalent to the Jeep in this case in terms of the likelihood and imminence of their respective movement. Nonetheless, as Kurokawa-Lasciak made clear, the status of the van in the parking lot in Meharry — viz., parked, immobile, and unoccupied (by its driver) — did not bring it within the Oregon exception.
Finally, the dissent contends that our application of the Oregon exception in this case undermines the exception by requiring the police and courts to make individualized decisions about exigency in circumstances that the exception is intended to avoid. That is not correct. Our application of the Oregon exception simply preserves the distinction that the Oregon Supreme Court established in Brown and Kock and adhered to in Meharry
Because defendant’s Jeep was parked in a store parking lot when the police first encountered it in connection with a crime and the police did not bring it to a stop, the Jeep was not subject to being searched under the Oregon automobile exception to the warrant requirement. The trial court erred in concluding otherwise and in denying defendant’s suppression motion.
Reversed and remanded.
Notes
Article I, section 9, provides:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
See, e.g., Webster’s Third New Int’l Dictionary 1450 (unabridged ed 2002) (defining “mobile” to mean, among other things, “a movable or moving body or part: one that is mobile”).
The court acknowledged that the distinction between a moving and movablе car might seem somewhat contrived, but it nonetheless believed that the bright-line rule established in Brown and Koch had struck the appropriate balance under Article I, section 9:
“We acknowledge the logic of the state’s position — that it is just as likely that a person in control of an operable car will drive off with evidence or contraband as will a person in control of a car that was mobile at the time of the initial encounter and that remains mobile thereafter. But we also are cognizant that, when the court recognized the automobile exception in 1986, it was careful to recognize a limited exception to the constitutional requirement that a neutral magistrate, and not officers in the field, determine the existence of probable cause to search. The court drew the ‘bright line’ that it did to benefit both the police and the citizens of this state. * * * Therefore, we adhere, as the court did in Meharry, to the line that the court drew in Brown and Koch”
Kurokawa-Lasciak,
Dissenting Opinion
dissenting.
If “to err is human,” then to overcorrect should be forgivable.
All agree that Oregon law permits a warrantless search of a vehicle when police encounter a vehicle that is mobile and when they have probable cause to search it. That vehicle should be recognized to remain mobile, although stopped, when it is still being operated, as here, with a driver at the wheel and the engine running, and when police have objective evidence that the vehicle has recently moved or is about to move. It should not matter that the driver and vehicle have stopped, paused, or are waiting. Because I believe the majority draws too narrow a conclusion from recent Supreme Court decisions, disregards prior statements of this court on point, and creates a new, unnecessary, and unrealistic rule, I respectfully dissent.
OREGON’S AUTOMOBILE EXCEPTION
The automobile exception to the warrant requirement allows that, “if police have probable cause to believe that a person’s automobile, which is mobile when stopрed by police, contains contraband or crime evidence,” they may conduct a warrantless search of the vehicle for those items. State v. Brown,
In Brown, the Supreme Court upheld the warrantless search of a car that had been moving when police stopped it. See Brown,
Recognizing that distinction, we observed that, “[i]f the car is not moving, nevertheless, it is considered to be ‘mobile’ if it is occupied and operable when the police first encounter it.” State v. Warner,
In State v. Cromwell,
“[t]he truck was not actually in motion when police encountered it, but to say that it was ‘immobile’ draws too fine a distinction. The truck was ‘mobile’ in that defendant could have driven away at any moment. The fact that defendant had not yet turned the key was merely fortuitous. * * * The search of defendant’s truck was lawful, and the trial court correctly denied his motion to suppress.”
Id. (emphasis added). Unless this court was sorely mistaken or its rationalе overruled, Cromwell, involving an occupied vehicle, should guide the case at hand.
Rather than reject the idea, the Supreme Court borrowed a page from Cromwell when finding that a van “remained mobile” when stopped. In Meharry, a police officer had received a call about the defendant’s erratic driving.
“The search occurred shortly after [the officer] had observed the van in motion and had parked his police car behind her van. Nothing occurred between that time and the search that rendered the van immobile. [The officer] had not impounded the van, and there was no physical or mechanical impediment to the van’s being driven away once [the officer] relinquished control over it. In short, the van remained mobile and the exigency continued.”
Meharry,
“The issue that defendant’s argument thus poses is whether stopping an otherwise mobile car from resuming its journey (as [the officer] did here) differs for purposes of the automobile exception from causing a moving car to come to a stop (as the officer did in Brown).
“We cannot see a difference, for constitutional purposes, between the two situations. The fact that [the оfficer] did not have time to effectuate a stop before defendant pulled into the Zip Trip parking lot but instead effectuated a stop by preventing defendant from continuing her journey does not make her van any less mobile, nor does it make it any less likely that her van — and any evidence inside the van — could have been moved once [the officer] relinquished control over it. Rather, the van remained mobile, and the circumstances in this case were as exigent as they were in Brown.”
Id. at 180-81 (emphases added). The court reversed the suppression of the evidence.
More recently, in Kurokawa-Lasciak, the Supreme Court reiterated that the contours of the automobile exception had not changed. The fact pattern resembled that in Kock. The defendant was gambling at a casino and was suspected of money laundering. The casino barred him from further cash transactions and posted his photo in cashier cages. The defendant reached through a cage and grabbed his photograph. He drove his van to a nearby gas station and returned to the casino parking lot, parked, and turned off the engine. No officers had seen the van move. The defendant got out of the van and walked toward the casino. A deputy arrived and stopped the defendant when he was about 30 feet away from his van. A trooper arrived and, after discussion, arrested the defendant for theft and disorderly conduct. At some point, the defendant gave his keys to his girlfriend with instructions to lock the van and wait for his return. Id. at 183. The defendant was taken to jail, and his van was left parked at the casino.
The trial court granted the defendant’s motion to suppress the evidence. We reversed, concluding broadly that “a vehicle is ‘mobile’ for purposes of the automobile exception as long as it is operable.” Kurokawa-Lasciak,
On review, however, the Supreme Court held that we erred in readingMeharry to have represented an “‘expansive definition of the automobile exception,”’ which had “‘evolved’” since Brown and Kock. Kurokawa-Lasciak,
“In this case, we adhere to prior decisions of this court and decide that the ‘automobile exception’ to the warrant requirement of Article I, section 9, of the Oregon Constitution, does not permit a warrantless search of a defendant’s vehicle when the vehicle is parked, immobile, and unoccupiеd at the time that the police encounter it in connection with a crime.”
Id. at 181. The court recalled that Kock had deliberately declined to adopt the federal rule that had deemed a vehicle mobile and applied the automobile exception if the vehicle was simply “‘capable’ of mobility.” Id. at 189. Instead, Kock had determined that Oregon’s automobile exception would not apply when the automobile “‘was parked, immobile and unoccupied.’” Id. at 190 (quoting Kock,
The Supreme Court explained that, in Meharry, it was important that the police officer had first seen the van while it was passing by. Meharry's reference to operability or to the risk of the van’s departure was not intended to make operability alone sufficient for a warrantless search. Kurokawa-Lasciak,
After Meharry and Kurokawa-Lasciak, the decisions of this court do not suggest that the automobile exception had been narrowed or changed. Rather, our recent cases illustrate the customary understanding of the auto exception. For example, we have suppressed evidence from warrantless searches of vehicles where the officers first realized the connection between the vehicle and a suspected crime at a time later when the vehicle was parked and without a driver behind the wheel. See, e.g., State v. Pirtle,
This court has reversed the suppression of evidence from a warrantless search of a vehicle, when, in classic fashion, an officer stopped a moving vehicle with reasonable suspicion of a crime. In State v. Wiggins,
In State v. Finlay,
Most recently, in State v. Baiz,
“When the responding officers arrived, defendant’s car was parked in a lot behind the bank. The engine was not running, and no one occupied the vehicle. Defendant and his keys were not in the car when the officers arrived. The state conceded at trial that the officers had not seen the car move and that they only had a report from the bank manager that the car had arrived at some time in the past. Given that it was parked, immobile, and unoccupied at the time the officer first encountered it in connection with a crime, the car in this case was not ‘mobile’ as required under the automobile exception.”
Id. at 405. We reversed and remanded, holding that the trial court erred in denying the motion to suppress.
In sum, none of these recent cases, including Meharry and Kurokawa-Lasciak themselves, suggests a narrоwing of the automobile exception to the point of today’s decision whereby “mobile” becomes strictly synonymous with “moving.”
ANALYSIS
There is an appropriate irony in the fact that Kurokawa-Lasciak began its analysis recognizing that the Court of Appeals had read too broadly by interpreting Meharry so as to view a car to be mobile “‘as long as it is operable.’” Kurokawa-Lasciak,
The majority interprets Kurokawa-Lasciak as if the Supreme Court had looked back to characterize Meharry and draw from it so as to contrast two separate situations. In one scenario, the majority reads Kurokawa-Lasciak to refer to the first portion of the Meharry facts, where the officer saw defendant’s van drive past before he could catch up with it. The majority reads Kurokawa-Lasciak to say that “[t]he van in Meharry came within the Oregon automobile exception because * * * it was moving.”
The majority’s view may not be an entirely unreasonable, albeit an after-the-fact interpretation that might be extrapolated from the Kurokawa-Lasciak summary of Meharry. But that deconstructionist reinterpretation is not actually to be found in the text of the decision in Kurokawa-Lasciak itself. See Kurokawa-Lasciak,
Although there is little harm in breaking Meharry into separate hypothetical scenes for analytic discussion, to project an after-the-fact interpretation into the text and then declare the decision-making already expressed in that text serves to deprive the reader of the chance to make an independent interpretation from the text of Meharry. One alternate and appropriate interpretation is that Meharry expanded the time frame to include in consideration evidence shortly before the police arrive at the scene of the vehicle, when other evidence indicates that the vehicle, now found stopped, had just been moving.
For its part, Kurokawa-Lasciak simply rejected the proposition that a vehicle could be searched if it was merely “operable.” Kurokawa-Lasciak,
To now require that the police see a vehicle in motion, as the majority requires, imposes an arbitrary test that rules out equally strong, objective proof of the same fact. In Meharry, an officer used sense organs to see a van in motion, although he did not reach the van until a minute or two later — a block and a half later — by which time the van had become parked and unoccupied. The search was valid.
It is unfortunate that the dispute turns on a single word in common usage. As the majority notes, the term “mobile,” in ordinary usage, includes both a thing that is moving and a thing that is capable of moving. See, e.g., Webster’s Third New Int’l Dictionary 1450 (unabridged ed 2002). Yet, despite this more qualitative meaning of “mobile,” the majority reads Kurokawa-Lasciak to say that the “distinctiоn” in a vehicle’s “status” is “strictly binary.”
To be sure, the term “mobile” includes “moving,” but “mobile” is a less literal term. The term “mobile” cannot mean only “moving.” “Mobile” describes, not just an activity, but a quality. If “mobile” meant moving, then the Supreme Court in Kock would have wasted the word “immobile” when requiring a warrant when a vehicle is “parked, immobile and unoccupied.” Kock,
At the risk of stating the obvious, the term “mobile” is a legal term of constitutional significance developed in case law. See, e.g., Brown,
More importantly, the Supreme Court expressed in Meharry that mobility was something that a vehicle retained even when momentarily stopped. The court observed, as we did in Cromwell, that “there was no physical or mechanical impediment to the van’s being driven away once [the officer] relinquished control over it. In short, the van remained mobile and the exigency continued.” Meharry,
Reason requires that “mobile” means those things that a vehicle does when it is actively engaged in use. A vehicle is designed to stop, wait, and go while on its travels. As a traffic engineer would say, a car may “stand” when pausing in its travels to wait at a school’s curb or in an airport’s loading zone. A car may pause and wait only long enough for its driver to complete a lawful transaction or an illicit drug deal. When stopping, standing, or waiting, a running car occupied with a driver at the wheel certainly “remains mobile.”
As a rhetorical device, talk of a “bright line” is seductive, because a simple rule would seem easy to artiсulate. A “bright line,” however, is not a legal principle unto itself sufficient to justify a decision. It is just a metaphor. Recognizing its limitation, our cases speak often of “the so-called bright line.” See, e.g., Kock,
The hot “bright line” that the majority now adopts is not only unreasonable, it is likely to be problematic. Now that observed motion becomes the test, we should ask, what mischief or uncertainty will follow if police are taught to wait to catch the car in motion (as if that could work)? What ingenuity may be emplоyed to delay or to recharacterize when the critical, first encounter by the police really occurred? The majority’s rule might become a form of laser tag. Writing for the majority in Burr, Judge Edmonds responded, “It makes little sense to interpret the constitutions in a way that requires the officers to permit the vehicle to roll several feet before effecting the search.” State v. Burr,
The
APPLICATION OF THE AUTOMOBILE EXCEPTION
Until now, no case has presented these facts. Perhaps, reasonable disagreement about the proper application of Oregon’s automobile exception is predictable, and, certainly, overcorrection is forgivable. But our case law should have compelled a different answer on these facts.
The undercover officer saw defendant’s Jeep only a minute after it had arrived in the front area of the parking lot. The vehicle’s presence was new. The officer recognized the silver Jeep that the informant had predicted for the transaction, and he witnessed Compton leaning through a window engaging in а transaction. He had a basis to suspect that defendant and the vehicle were involved in crime. The vehicle was not “parked” in any conventional sense of the word. The Jeep was positioned askew across several parking spaces. At most, the Jeep was stopped.
The vehicle was certainly not “unoccupied.” Defendant and her passengers had not left the Jeep, like the defendants in Kock and Kurokawa-Lasciak.
From all indications, the presence of the Jeep was temporary, and it was still operating. When police first encountered the Jeep, defendant sat at the steering wheel, the key was in the ignition, and the engine was running. Defendant asked to leave. The Jeep had paused only long enough to accomplish the transaction. Although the officer had not seen the Jeep in motion a minute before, these surrounding facts objectively confirmed that the Jeep was “mobile.”
When first seen, defendant’s Jeep was no less “mobile” than a car pulled up to a drive-up window, a car waiting at a curb for a passenger, or a car stuck in a traffic jam behind an accident. The Jeep was stopped but “mobilе” like the truck in Cromwell with its parking lights on, stopped in the middle of the dead-end road. With a shift of gears, the vehicle could have been gone. Just as the court in Meharry observed that “no physical or mechanical impediment” prevented the vehicle’s departure, so, too, defendant’s Jeep “remained mobile.” Meharry,
Although these facts are new, the formulation has long been established. Police may search an automobile, which is mobile when encountered, when they have probable cause to believe it contains evidence of a crime. Brown,
In this case, defendant’s Jeep should have been recognized to be “mobile.” It was not “parked, immobile and unoccupied.” See Meharry,
Apology to Alexander Pope, who wrote, “To err is human, to forgive divine.” Alexander Pope, An Essay on Criticism (1711) reprinted in 1 The Norton Anthology of English Literature 2680 (9th ed 2012).
State v. Kurokawa-Lasciak,
This court made a similar statement a few years later where the facts were a measure or two more challenging than either Cromwell or today’s case. In State v. Burr,
The court referred to Brown as describing the automobile exception as “a subset of the exigent circumstances exception[.]” Meharry,
The trooper engaged the girlfriend in a discussion about consent to search the van. In our initial decision, we did not reach the question of the validity of her consent, nor did the Supreme Court.
Often the Supreme Court will take two separate cases and write a single combined opinion in which the facts in two cases are compared or contrasted. See, e.g., State v. Lawson/James,
The majority finds “telling” that Kock had cited California v. Carney,