*1 10, 1985; Aрpeals September reassigned Argued Court of and submitted March 1,1986 reversed, July judgment trial court affirmed OREGON, OF STATE review, on Petitioner BROWN, DARNELL RODERICK Respondent on review. S31637)
(DC
249577;
A29759;
249576; DA
SC
DA
CA
David C. Hillsboro, the cause for *2 respondent on review.
JONES, J. dissenting opinion joined by J.,
Linde, filed a Lent, J. JONES, J. police presents question
This whether case searching required to obtain warrant before officers when the officers who lawfully trunk of a automobile have cause to believe that arrested the driver of the crime for which the trunk contained relevant evidence been made. hold that under these arrest could have We of the required warrant was the search circumstances no did violate trunk and the seizure of the crime evidence Constitution, I, or the Fourth Oregon Article United States Constitution. Amendment
FACTS 27, 1983, Ms. early morning January In the hours of Hudson, officers, two Krohn and reported Tillman defendant, boyfriend, had assaulted her and stolen her She also told the officers that purse containing her $15 $20. always handgun purse” in a “black either defendant carried a his car. The had not been gun in the trunk his earlier Tillman. Because of an used in the incident with defendant, Tillman and Officer domestic disturbance between *3 had personally with defendant and acquainted Hudson was had a the earliеr disturbance defendant reported during make, year, the Officer Hudson also knew gun pocket. his automobile. color and license number of defendant’s a.m., Officers following morning at about 1:15 driving he was stopped defendant while Krohn and Hudson reason for the trial court found that “the his automobile. The charges theft” to arrest defendant on the assault and stop was why he and stopped, and was advised was that “[defendant a weapon.” of possession was told of the accusations about his to a search of defendant declined consent When compartment automobile, passenger the officers searched locked opened Officer Krohn then glove and the box. the one bag purse or similar to trunk and saw a black leather bag carried by Tillman in which defendant described Krohn handgun. picked When Officer bag was closed. bag gun heavy handgun he feel inside. The up could were seized. Krohn, was hand- to Officer defendant
According could during entire search. Officer Hudson cuffed when, if, handcuffed, remember or defendant was but said that was placed patrol defendant in the car when “we decided we going get were into the trunk and the gun out.” jail
Defendant was taken to booked however, assault and theft charges; signed Tillman never complaints charging him with those crimes. Defendant was charged later with unlawful possession weapon, of a ORS 166.250,1 сarrying a loaded firearm in of violation Port- City land Code Ordinance 14.32.010.2
The trial judge prepared written conclusions which following: included the
“8. The search in this can case be sustained under exception requirement the moveable vehicle of a search CLE, Maroney, (1970); warrant. Chambers v. US 42 arrest, 166.250(1) provided: At of the time defendant’s ORS “Except provided section, 166.260,166.270,166.280, as otherwise in this ORS 166.470, any person possesses possession 166.290 or 166.410 to who or has in his any gun, upon person any machine or carries concealed his or within which vehicle any pistol, capable is under his or control direction revolver or other firearm of being upon person, carry having concealed without a license to such firearm as provided 166.290, misdemeanor, guilty in ORS of a unless he has been convicted any felony previously any section, punishable crime made this ÓRS 166.470, guilty or 166.410to he is which case 166.260.166.270.166.280.166.290 felony.” a by Oregon chapter ORS 166.250was amended Laws and now occurring knowingly defines the crime as when one carries a concealable firearm * * readily person “concealed and accessible about the within vehicle Because “readily person,” trunk firearm the of a car is not accessible about the defendant’s 161.035(4) longer statutory conduct no would a crime. ORS addresses the effect of amendments after the occurrence of the conduct and before a conviction becomes provides: It final. part repealed, “When all or of a criminal statute is amended or the criminal part repealed purpose statute or thereof so amended or remains in force authorizing accusation, prosecution, punishment conviction and part amending who violated the statute thereof before the effective date of the repealing Act.” City provides pertinent part: Portland Code Ordinance 14.32.010 *4 “(a) Chapter, pistol, revolver, rifle, gun, As used in this ‘firearm’ means * * ordnance, other *.
<<* * [*] * * “(c) any person public place public It is unlawful for in a street or carry person, upon a firearm his or in a his or in which vehicle under control he occupant, an unless all ammunition has been removed from the chamber from cylinder, clip, magazine.” the 3.5.23, Procedure Sections 3.5.30
Criminal Constitutional (1982 Supp).
“9. to search the vehicle under the Probable cause exception of the moveable vehicles existed this case because provided by the citizen informer that the defen- information CLE, ‘always’ gun carries a on his his car. dant 3.4.11, Procedure 3.5.30 Criminal Constitutional Sections (1982 Supp). lawfully probable justifies ‘If the search of a
“10. cause vehicle, every part justifies the search of of the object its conceal the of the vehicle and contents that Ross, 456 US 102 S Ct search.’ United States (1982) (sustaining paper 72 L Ed the search of 2d 572 zippered pouch of a bag leather seized from trunk and a car.) mobility easy “11. of the vehicle and the Because of evidence, circumstances exigent existed in disposability of the of the vehicle. to authorize an immediate search this case 3.5.30, CLE, Procedure Sections Criminal Constitutional (1982 Supp.)” 3.5.35 information sum, trial reasoned that judge
In probable gun provided a concealed that defendant carried gun3 upheld vehicle for the cause search the The of the automobile. court warrantless search of trunk “because of the exigent circumstances existed found that easy disposability mobility and the of the vehicle circum- exigent held that these The trial court evidence.” of the automobile the immediate stances authorized Defendant was convicted suppress. the motion and denied charges. was “no that there Appeals The Court of concluded that defendant reasonably believed that the officers evidence that the search for gun, for the did not have license” assault, and arrest for theft and to the weapon was related searches permissible bound of exceeded the the search 342, 347, Brown, App 72 Or arrests. State v. incident idea, it Appeals rejected Court of P2d 1383 Martin, 1,6, P2d cases, App State v. Or previous had in conclusion, Appeals defendant never but the took issue with this Court of ruling the trunk for challenged cause to search there was the trial court Therefore, gun. we address that issue. do not
273 Kirsch, v. State (1984); 418, 421, App 154 69 Or 446 686 P2d (1984), requirement I, the warrant of Article section suspended for searches of automobiles.
The state seeks to validate the search on either of two independent grounds. It first to points mobility the of auto- mobiles and contends of that searches automobiles need not pursuant any case, be conducted in long to warrants as so probable cause to exists believe that the vehicles contain Secondly, evidence of crime. it argues that the search was properly an incident to the arrest. Because we hold that the of fully conduct the justified proper this case was aas exception”4 seizure, “automobile warrantless search and we need not the address state’s second contention that the search could also be justified incident to defendant’s arrest.
THE OREGON AUTOMOBILE EXCEPTION
The Fourth Amendment to the United States Con- parallel stitution and the independent guarantee but per- of sonal privacy I, of Article of Oregon section Constitu- tion, have long interpreted been require impartial to approval judicial of a officer before the undertaking most searches. The warrant requirement provisions may of these be dispensed specifically with few estаblished and well- delineated circumstances.
The Fourth Amendment to the United States Con- provides: stitution right people “The persons, be secure their to
houses, effects, papers, against and unreasonable searches and seizures, violated, issue, shall not be no and Warrants shall upon cause, affirmation, probable supported by but or Oath particularly searched, and describing place to be and persons things or to be seized.” I, Oregon
Article Constitution pro- vides: right people “No shall be law violate secure houses, persons, effects, papers, against
their and unreason search, seizure; upon able and no warrant shall issue but automobiles, cars, we When we refer to vehicles or include similar motor conveyances. cause, affirmation, oath, partic- supported by searched, place ularly describing
thing to be seized.” Quinn, 383, 390-91, Or
As we said in State (1981): P2d principles fundamental flow from these constitu-
“Two First, provisions: persons free all from unrea- tional persons and seizures of their governmental sonable searches freedom, Second, property. protecting means as a by a is to made disinterested branch the decision government, judiciary, rather than the branch which *6 seizure, performs the search and the executive branch. 443, 2022, Coolidge 29 Hampshire, 403 S Ct L v. New US (1971). Ed 2d requirement preliminary judicial
“The that there be seizure is absolute. for official search or not authorization is exigent recognizes circumstances doctrine that what Therefore, example, may as one practical also be reasonable. nature, automobile, may very its which mobile an probable a if there is and seized without warrant searched fruit, it instrumentalities or cause believe that contains exigent if are circumstances of crime and there also evidence excep- impracticable to a warrant. This make it obtain which Greene, necessity,’ ‘practical State v. Or arises from tion *” * * 337, 591 P2d heretofore unanswered presents case for us the This exception” to the warrant an “automobile question: Is there I, 9, Oregon Constitu requirement of Article (1) exception, provided there is such an tion? We hold that by police stopped at the time it is the automobile is mobile that (2) authority, probable that cause governmental and other adopting such By for search of the vehicle. exists federal “auto align with the traditional position, we ourselves require warrant Amendment exception” to Fourth mobile case Carroll v. United forth in the seminal ment set (1925), L and its States, S 69 Ed 543 267 US 45 Ct are so, clear that we we wish to make doing In progeny. law; we decide this independent of federal deciding this case the federal Oregon under Constitution case deci Supreme Court cite the United States constitution. We not because they persuasive, are we believe sions because Oregon precedent interpreting this court in are they Constitution. in Carroll
In Supreme United States Court States, v. United supra, mobility held that because of its an may automobile that highway be searched without warrant when officers have cause to believe that surveying it contains After contraband. law from the adoption time of the of the Fourth Amendment onward, the Court held that and other con- automobiles veyances may be searched without a warrant in circumstances justify that would not the search without a warrant of a house office, or an provided that there is probable cause to believe the automobile contains articles the officers entitled seize. The Court expressed holding its as follows: “We have made a somewhat extended reference to these guaranty statutes to show that the of freedom from unreason- able searches and seizures the Fourth Amendment has construed, practically been beginning since the of the Govern- ment, as recognizing necessary difference between a search store, dwelling house respect or other structure in proper obtained, which a readily may official warrant ship, boat, automobile, search of a wagon motor goods, practicable contrabаnd where is not to secure a quickly warrant because the vehicle can be moved out of the locality jurisdiction sought. which the warrant must be “Having goods thus established that contraband concealed illegally transported in an automobile or other vehicle may warrant, be searched for without a come now we consider under what circumstances such search be made. *7 * * * lawfully country, within the entitled to use the [T]hose public highways, right passage interrup- a have to free without tion competent or search unless there is known to a official search, probable authorized to believing cause for that their * ** carrying illegal vehicles are contraband or merchandise.
[*] [**] [*] «* * * is, legality The measure of of such a seizure therefore, seizing that the officer shall have reasonable or probable believing cause for that the automobile which he stops liquor being seizes has contraband therein which is 153-54,155-56. illegally transported.” US 267 at Ross, United States v. In 798, 2157, 456 US 102 S Ct L (1982), 72 Ed 2d 572 Justice Paul John Stevens wrote the Court, opinion for the rule police which stated a that officers lawfully vehicle, who stopped having a probable cause to believe that is contraband located or concealed somewhere
276 may
therein,
a
conduct warrantless search of the vehicle
by
magistrate
thoroughly as
a
authorize
that which
could
probable
justifies
“[i]f
warrant. The Court stated that
cause
lawfully
justifies
stopped vehicle,
a
of
it
search
the search of
may
every part
the
of the vehicle and its contents that
conceal
object
the
at
of
search.”
We
with the
probable
person’s automobile,
is
cause
believe that a
which
to
by
stopped
police,
crime
mobile when
contains contraband or
subjected
privacy rights
no
evidence,
our
are
the
of
citizens
greater governmental
police
if
intrusion
the
authorized
than
an immediate on-the-scene search of the vehicle
conduct
obtained. The
to seize the vehicle and hold it until a warrant is
stopped
police
probable
into a
mobile vehicle
ticket
admission
magistrate
issue
cause. The test is whether a
could
constitutionally
sound search warrant based on
Here, if the
had made
cause articulated
the officers.
officers
they
magistrate
had
sworn statements to a
that
reliable
this defendant
information from a credible informant that
always
bag
gun
in the
a black
carried a
his
pursuant
car,
such an affidavit
trunk of his
a warrant
issued
constitutionally
of
valid seizure
the auto
would authorize a
of the trunk.
mobile and
explaining
“exigency” required to
In
the nature of the
satisfy
Oregon Constitution, we
I,
9, of
Article
key
exception
emphasize
automobile
is that
to the
lawfully stopped.
mobile аt the time
automobile need be
mobility
exigent
of the
other than the
No
circumstances
need
demonstrated. The California
vehicle
variety
Supreme
of factors
Court has noted
“exigency” supporting
particular
an
immediate
demonstrate
including
hour,
search,
the remote location
the lateness
suspects
comparative
car,
and the
number
specially
present
held that none
on the
But that court
scene.
“exigency” to
establish
these
is essential to
circumstances
lawfully stopped
validity
vehicle
sustain the
of the seizure of
Mobility
its
without a warrant.
immediate search
exigency.
stop,
itself,
creates
vehicle at
time
Rptr
People
P2d
Cook,
Cal
13 Cal 3d
See
v.
Rptr
(1972); Wimberly Superior Court,
v.
Cal
(1976);
People Chavers,
462, 189 Cal
3d
33 Cal
P2d 417
*8
Rptr 169,
277 We are adoption “per exigency convinced that of a se a approach provides rule” is sound guide which the clearest police conducting lines for in Exigencies automobile searches. case-by-case should not be determined on a basis. Police need guidelines by they clear which gauge regulate can their complex conduct rather than of rules trying follow set dependent upon particular time, facts regarding the location Accordingly, and manner of highway stops. joinwe the federal many courts,5 courts and other state and hold that lawfully stopped сause to believe that a automobile which was mobile stop at the time contains contraband crime justifies evidence an immediate warrantless search of search, entire object automobile for the despite the absence of additional exigent circumstances.
In
v. Quinn,
391,
State
supra, 290 Or at
this court
stated that “the essential mobility of an automobile is not
necessarily sufficient in
dispense
necessity
itself to
with the
seizure,”
Fondren,
warrant
its
v.
citing
361,
State
Or
1374,
(1979)
P2d
cert den 444
(unoccupied
US 834
parked
car at
place
defendant’s
of employment). That statement was
unnecessary
Quinn
in
because the court found that the officer
had additional articulable
prompt
reasons for
action
the car was partially blocking traffic and that it appeared to
contain
property
stolen
which the
obliged
were
recover and restore to the owner. The court found that these
exigent
were sufficient
justify
circumstances
the officer’s
decision to seize the car
addition,
without warrant.
In
Fondren,
citation
that statement was to State v.
supra,
which did not involve the
stop
a mobile automobile but
involved the
a parked
reject
search of
car. We
language
anything
mobility
addition to the
anof
automobile at
lawfully stopped
time
required
exigency
create
under the
exception
automobile
defined
this casе. We are
not
confronted
this case with the search of a vehicle that is
just
lawfully
mobile and has not
been
stopped by police
We, therefore,
officer.
opinion
do not address in this
whether a
impounded
warrant for the
parked
seizure of
required.
automobile is
Chavers,
See, e.g,
People
462, 189
169, 658
(1983);
v.
Rptr
33 Cal 3d
Cal
P2d 96
Barton,
Smith,
(Colo 1984);
People
People
v.
v.
673 P2d
95 1112d
69 111Dec
(1983);
People Langen,
(1983);
Hunter u.
In case the trial that the judge *9 mobility exigent of the vehicle alone created the circum- necessary satisfy I, stances of Oregon Article the Constitution, disregarded he properly and that the defendant police custody was under arrest and in and that the car was police under control when the search was conducted. As mentioned, previously mobility” under “automobile test it the does not matter whether the could have taken over passenger (which eventually did), the of car he whether the custody the arrest, police personnel back-up the whether adequate had available, a a magistrate tow truck whether was available was otherwise,6 threatening a crowd telephone or or whether by to find was what he did gathered, judge etc. All the trial needed (1) by the time it was the find: the car was mobile at (2) police; police probable had cause to believe that the and the or As we said in car contained contraband crime evidence. Greene, Quinn, supra, agree we supra, and State v. State Supreme Court reasoning with the of the the United States between, no difference exists purposes that constitutional hand, presenting a car before seizing holding on the one and, on magistrate to a the other probable the cause issue hand, a warrant. carrying out an immediate search without search, probable cause to either course reasonable Given Oregon Constitution. under the 6 computers, day a in near we foresee time the In modern of electronics and this requirement and federal constitutions can be when warrant of the state future the virtually exception. All in this state would be a that would be needed fulfilled without day. duty facility magistrates 24 All in the hours a with and available central facility by telephone to the central where in or other electronic device could call state oath, probable facts, constituting purported given search and cause for under the the and, magistrates if those facts deemed recorded. would evaluate seizure would be immediately seizure, magistrate justify would issue an the sufficient to a search proceed. authorizing The warrant could the officer on the scene warrant electronic city county facility electronically in recorded in central be retained the either Thus, magistrate having goal could be achieved of neutral
in
state.
the desired
the
rights
present
of a citizen created
the
the
invasion
the
minutes without
within
fully protect
procedure
yet
rights
the
delay
would
under our current cumbersome
from
searches.
citizen
warrantless
step
process
Telephonic
we
See
in the
envision.
first
warrants
warrants,
telephonic
statutory provisions
Oregon’s
ORS
search
discussion of
(1983) (Jones, J.,
Lowry,
133.545(5),
n
cause to believe that a stolen lawnmower garage support found in a not will a warrant to an search bedroom, upstairs probable cause to believe that undocu- transported being justify mented aliens are in van will not search warrantless of a suitcase. cause Probable to believethat placed a container trunk of a taxi contains contraband justify does evidence a search of the entire cab.” US at 593.
Thus, in this case there was probable cause to believe since gun was in the purse car, black trunk scope of and seizure of was gun reasonable. The *10 search and seizure in case this also met federal constitutional Ross, standards. United States supra.
The Court of Appeals is reversed and the trial court judgment is reinstated.
LINDE, J., dissenting. Defendant’s conviction discovery rests the of a handgun after warrantless and unconsented search of a closed bag located in the locked trunk of defendant’s auto- mobile after stopped defendant was and arrested on unrelated charges, automobile, removed from the and handcuffed. From prior information the officers had to expect reason find a handgun bag in a somewhere the vehicle. Assuming that the gave information “probable required I, the cause” Article Oregon of the for Constitution of one’s search person, house, papers, “effects,” question or the is the whether search could conducted without ordinarily the warrant required by that section.1 state argues primarily
The that can be I, Oregon provides: 1Article section 9 of the Constitution right people persons, shall “No law violate the to be secure in their houses, effects, against search, seizure; papers, and unreasonable no cause, affirmation, upon probable by oath, supported warrant shall issue but searched, particularly describing place thing to be to be seized.” person’s to a brought exception within of searches incident an Alternatively, recognize arrest. the state asks this court used exception,” has come to be phrase “automobile that amendment, con- for decided the federal fourth cases under is no trary Appeals the view the Court of that “[t]here exception’ Oregon ‘automobile under the Constitution.”2 today affirms defendant’s conviction search was “incident to” theory neither on Supreme arrest States Court’s defendant’s nor on United from the war- exception” current version an “automobile amendment, upon a more rant the fourth but requirement of searches on narrowly exception defined limited reasonable transit, which is probable lawfully of vehicles cause always setting theory on a that searches in such a based the war- “exigent.” modernizing discussion majority’s temporary is a process suggests today’s rant decision for open that remains future reconsideration. accommodation argu- the broader accept Because the court does not closed dispensing ments with search warrants compartments generally, my disagreement of automobiles narrow. majority’s holding correspondingly with narrow every case, of the trunk of agree I do not that in the search vehicle, stopped, “exigent per has se” mobile once it been authorizing A rule regardless of individual circumstances. cause of automobiles on warrantless searches necessity, alone, should without actual circumstances rather by politically policymakers enacted accountable elected constitutionality. court, decide its than this before we also contrary I disagree majority’s ruling, I with the Because justify this why theory must state’s does explain other *11 warrantless search.
I.
relating
“clarify the law
last undertook to
This court
vehicles” in four decisions
to the
and seizure of
search
“a
stated aim was
1979.3 I wrote at the time that
the court’s
Kirsch,
446,
(1984);
see
418, 421,
den 298 Or
App
69
rev
2State v.
P2d
151
Or
686
Martin,
1, 6,
(1984).
App
State
also
v.
71
281 worthy one,” but an “the goal ambition incautious because comprehensive clear and statement of the of Oregon law governing police anything searches of vehicles or of else will by not be achieved the means which the it.” pursues Court Greene, 337, (1979) (Linde, State v. 285 Or P2d J., specially concurring.)4 years passed,
Seven
have
but that statement
is as true
today as it
years ago.
today’s opinions
was seven
In
State
Bennett,
(1986),
case,
301 Or
The rest will not be a night’s Today’s opinions, too, remain transitory not because Court — itself is in transition attempting “committee draw horse constantly membership of committee [while] changes,” Anthony which Professor Amsterdam ascribed — the “camel” of fourth Amendment Law5 but also because the opinion upon rests premises and the “exigency” limita- tions of the warrant process be, that can and therefore should be, overcome.
Search and seizure law has not years stood still in the decisions, since this court’s 1979 nor has the United States Supreme Court been more than successful this court finding coherent rationale for searches of vehicles containers in vehicles. The Supreme Court held that federal fourth required amendment to open warrants Then, luggage packages. with Justice Stewart writing for plurality retirement, just before his the Court in 1981 limited the area of an automobile that could be searched incident an arrest passenger area, to the area and containers in that excluding year the car’s trunk. Within the Court abandoned suppress I 4Justiee Lent and from differed the Court insofar we “would Greene, a warrantless search of the automobile trunk.” State v. evidence obtained supra, (Linde, J., concurring). Or at Amendment, 5Amsterdam, Perspectives on the Fourth Rev 58 Minn L present today’s argued; Onе member of court after retired cases were her replacement participate did these decisions. *12 282 found both for trunks and for containers limitation
within them.6 in this court’s independent developments were
There
a view
opinions
1979
still followed
decisions. The
in
tied
law to federal decisions
Oregon’s
stated
1974
contrary.7
That
“persuasive
there were
reasons” to
unless
view,
treated each latest
formulation of
United
which
Oregon
Con
Supreme Court as
benchmark
States
stitution,
contexts,8
and it was
had not been followed
other
v.
law in State
respect
overruled with
to search and seizure
(1982).
Caraher,
741,
Or
The rule that
judicially
searches must
authorized
whenever possible and that warrantless searches are extraor-
dinary departures
from the rule deserves to be
than a
more
comforting
Routinely
opinions
fable.
sustaining
recited in
Clark,
Edmondson,
231,
(1981),
251,
and State v.
291 Or
21, 688
(1984);
(1981),
216, 637
State v.
cert denied
P2d
P2d
292 Or
1111, 102
(1982).
457 US
CtS
It own, but in spell out one’s by reference rather than ing law, only beg quotations and seizure areas such as search than persuasive is more why quoted opinion question In a quoted. that are not critiques academic opinions other clause, search and seizure applying California’s 1985 decision wrote: Court, today’s majority, like Supreme the California People persuasive.” reasoning find the [federal cases] “[W]e P2d 170 1, 11, Rptr 3d 216 Cal Ruggles, 39 Cal court found what the California The difference is that decisions Supreme Court’s States persuasive were United Robbins, Sanders, n. 6. The California Chadwick, supra, Ross, 456 States v. taken in United position rejected court (1982), and invalidated 2d 572 798, 102 Ct 72 L Ed US S despite in a car trunk bags found the warrantless *14 the search. cause for abundant in early court had come to this cases present If and in Robbins Court’s decision 1982, Supreme after the have similarly might Ross, this court majority of before “per- Supreme Court word from the then latest found I, section 9. Article meaning Oregon’s of on the suasive” the costs strikingly demonstrates Ruggles, supra, People v. before grounds federal deciding cases on reversing logic and court California an intermediate When reaching state issues. Supreme search, the United States sustained originally its light reconsideration decision for remanded the Court and reconsidered court The California decision Robbins. and a of certiorari grant itself, only to face another reversed light more in once mandate to reconsider further the second in Ross. On direction change of Supreme Court’s case finally decided the Supreme Court the California remand 7, n. 3. State 3d at 39 Cal constitution. under the California Cf. Fortunately the (1983). 260, P2d 1316 Kennedy, 295 Or 666 v. approach. resurrect this does not a state constitution analysis under independent An 285 exemplified by Washington Supreme opinion Court’s Ringer, (1983), State Wash 2d P2d 1240 100 674 which also searches of after their drivers been involved vehicles had The arrested handcuffed outside the vehicles. decision rejected arguments made same state here. Justice that, opinion Dolliver’s for the court noted in the beginning 1960s,15the Washington began decisions to follow the United Supreme States Court’s fourth amendment doctrines applying constitution, Washington’s disregarding the state’s Returning own law. the common-law of searches origins arrest, incident the Ringer exception court stated that the “began as a narrow rule solely intended to protect against frustration the arrest itself or destruction of evidence arrestee,” and that this its scope Washington was when the adopted. constitution was 100 Wash 2d at 698. court also early observed that recognize had refused to a “so-called exception’ ‘automobile for nonexigent searches.”16 I do not suggest, Ringer I do not suggest, cite State v. old cases understandings contemporaneous with the adoption of a place interpretation constitutional text its applica beyond tion further development. development But must respect logic premises. of its
II. The conditions of law have changed enforcement since the adoption of the fourth amendment and its state counterparts in the 18th and 19th centuries. notion of crime an exceptional calling and abnormal event judge to authorize someone to seize known offender or to search Supreme respect 15The United States Court’s caselaw with and seizures setting everyday proliferated only in the state and local law enforcement after Ker v. California, US S Ct L 83 Ed 2d Gibbons, quoted 171, 187-88, 16The court from State v. 118 Wash P (1922): “ ‘[Manifestly guaranty constitutional “no shall be disturbed private affairs, invaded, authority law,” protected in his or his home without *15 person appellant, it, possession of and the in of his automobile and all that was Ritzville, upon public against authority while street arrest and search without arrest, warrant, fully of a warrant of or a search as as he would have been so protected possession actually is, dwelling; had he his been and inside his own that “private protection guaranty his were under the of this of the constitu- affairs” tion, public dwelling, upon highways, whether he within was his or wherever ” right he had the to be.’ Ringer, supra, (Emphasis original.) State v. 100 Wash 2d at 700-701. in goods specified place may for him or for stolen in a never have century, simple assumptions been In this accurate. those have undergone growth cities the use changes. radical and airplanes mobility new gave automobiles and offenders and anonymity. delegated Law enforcement was to and admin- by large police organizations, governments istered chose attempts on law rely criminal to control first alcohol and trade, by prohibitions posses- then other on drugs production, sion, depend seizing, and use that finding, identifying The entire still is process evidence without aid of victim. required to bе but task is no legally supervised judges, popular with than it is with law enforcement more courts officers. devices evade warrant
Three can be tried to exists, theory requirement. deny is to that it on the that One only under the text warrantless searches need constitutional “reasonable,” must be based on that warrants particularly place cause and describe the probable thing theory be seized. This person searched and warrants, because officers could would obliterate use anywhere and a warrant and anything seize without long their could be without cause as conduct Supreme defended as “reasonable.” Neither the United States reading guaran- accepted Court nor this court has of the tee.17 evading requirement
A the warrant second device for searches or seizures that expand exceptions is to create or (specifi- necessity awaiting must be made without warrant items an officer cally searches of an arrested or for control) beyond original and neces- cannot under their keep majority’s “per se exigency” exception for sary scope. transit, irrespective exigency of actual vehicles case, is such a device. the individual A what constitutes a manipulate third device is to speech, In “search” ordinary requiring “search” warrant. searcher; one searches purpose intention connotes something. But it finding with aim of whenever one acts alone looking listening purposeful held that long has been Grano, Rethinking theory against reviewed 17The case historical Requirement, L Rev Amendment Warrant 19 Am Crim 617-21 Fourth
287 can does not make unlawful a warrantless search of what be plain in view or overheard without the aid of technical seen e.g., See, Louis, P2d enhancement. State v. 296 Or years, Supreme In recent the United States Court has concept carry protections developed taken a first of the beyond trespass concept “pri- law, fourth amendment of vacy,” requirement and has used it instead to limit the of warrants for what otherwise are conventional “searches” denigrating “expectations privacy” in containers or other private property settings, in various such as automobile trunks. “privacy”
The device need not be dissected in detail adopt here, essence, however, since the does In not it. “privacy” only relativism reinvents relativism of “reason- ableness” under another label. Under the constitutional war- downgrading “privacy” clauses, rant in automobiles fails aas limiting privacy though device; interests, for if one’s described recognize investigatory “diminished,” suffice to con- require probable “search,” duct as a the warrant clauses cause legal and a warrant. If the conduct is nоt a in “search” only required all, sense at then not is no warrant but neither is probable cause or even “reasonableness” under the first clause of the Gardner, constitutional texts. See Searches And Sei- zures AutomobilesAnd Their Contents: Fourth Amendment Of World, Considerations In A Post-Ross LNeb Rev (1983). Sliding-scale “privacy” logically cannot rationalize may may when a search and when it not be made without a practice guide police pros- warrant, officers, nor can it setting ecutors, and trial courts in a new factual its until degree privacy appellate opinion. has been calibrated an right The court is not to start down that road.
Cases on warrantless searches and seizures of vehi- enough cles and of various containers involve variables to any precedent distinguished allow case, almost to be in a later thought opinions. variables that have been decisive some (1) may stopped by police, The vehicle to be searched be (2) may already stationary. may be The vehicle be movable (3) may physically purpose at will or it immobilized. The stop may (4) be related or unrelated to the search. The object may of the officer’s intervention be the driver or (5) passenger. passenger, pos- driver, owner, The or other may only subjected arrest, cited, sessor of a vehicle probable cause for the search. not at all related to the persons possession suitcases, same is true of found in (6) shipping boxes, or other containers. Such containers are variously private premises, private vehicles, in the found (7) possession common carriers or in warehouses. may object, site, vehicle itself be the (8) investigation. may officer’s The vehicle be on residential property, privately parking premises, public owned or on a (9) may road. An officer have cause to believe either subject that a vehicle or that a container holds items may seizure, and the belief result from his own observation or (10) *17 from other information of the contents. The officer may beyond not have used his natural instruments own (11) objects may senses. The of the search or the seizure (12) may intrinsically dangerous ephemeral. Finally, not be jurisdiction may govern- have enacted one or another law ing the officer’sconduct. myriad permuta-
Faced
with the
combinations
matching
variables,
tions of these
one
retreat into
accumulating
prior
facts of each new case to the
holdings
mass of
emerge
system will
in the faith that some rational
opinions.
empirical experience even if not from the
from the
misplaced. Opinions
experience
shows that faith to be
justices
Supreme
have
the United States
Court or individual
cases, in 1971that “no
stated about the Court’s vehicle search
perfectly
logic
consistent”;18 in
trick of
will make them all
1973,
understatement,
that
the cases formed
with similar
“something
web;”19
than a
and with more
less
seamless
exasperation
and seizure with
in 1982: “The law of search
intolerably
respect
confusing. The Court
to automobiles is
previously,
apparently
agree even on what it has held
cannot
decided.”20One scholar
let alone how these cases should be
fifty years
put
finger
problem: “After
than
his
on the
more
litigation,
nor state courts
search and seizure
neither federal
satisfactory conceptual framework for
have established a
analyzing
prior judicial
when
the rather basic issue of
Rethinking
approval
required
Grano,
a search.”
to validate
443,
2022,
483,
18Coolidge
Hampshire,
L
2d
91 S Ct
29 Ed
v. New
403 US
(1971).
(1973).
Dombrowski,
2523,
19Cady
S
Ill
The state offers two theories to defend the war-
rantless searches of the closed automobile
trunks
these
Bennett,
in State v.
and,
cases
301 Or
“Search incident to arrest. Because the Court does not rest its holdings theory on a of warrantless searches of car trunks arrest,” “incident the inadequacy theory of that requires only a brief statement.
“Search-incident-to-arrest” has become one of those that, legal talismans although it is in English rather than Latin, has left its rationale justifies behind. What a war- person rantless search of a under arrest there is probable cause to believe has committed a crime. It is not that an officer who has valid reason to make an arrest also has valid reason to search for evidence of the crime for which he makes the arrest. If reasons sufficient for an *18 arrest by themselves dispense sufficed to with a search war- rant, the actual arrest would unnecessary be immaterial and for the obviously search. That is not the law.
To contrary, an arrest is the crux of a “search- By incident-to-arrest.” definition a search “incident to” an arrest ais warrantless search that justified by is the fact that a suspect is arrested. The justification arises from the practical consequences taking person custody, into and it cannot beyond extend those practical consequences if the fact of the arrest is its premise. proposition This rather self-evident demonstrated assuming typical two variations from the case.
First, a person custody need not be in in order to be prosecuted. ORS in lieu of 133.045 to 133.100 allow citations violations, misdemeanors, many arrest for most for all and for felonies. Probable suspect cause believe has com- mitted a required crime is for a citation: as much as for an arrest. But no one Oregon maintains that law authorizes an officer to conduct a warrantless a person or a house, person’s papers, or effects virtue of or “incident to” citation, issuing crime, although the the officer’s knowledge, and the relevance potential evidence are identical as in an arrest. The statutes assume that citation and arrest are equivalent prosecution, means to initiate a differing only according to the need to suspect. restrain the A doctrine that illogically extends a beyond “search-incident-to-arrest” practical custody needs of investigatory allow searches without a warrant contradicts that policy. Instead, puts premium on arresting suspect, and if possible doing so in a place that officers wish to search for evidence.
Second, the statutes “private person” allow a as well “peace “arrest,” 133.220, as a officer” to effect an ORS which place person means “to under аctual or constructive restraint person custody purpose or to take a into for the 133.005(1). charging person with an offense.” No ORS doubt a private person lawfully into taking person another custody may safeguard suspect’s himself and items in the immediate possession that relate to the crime for he which makes the arrest. But would the argue state or a court hold that a “citizen’s arrest” authorizes a “citizen’s of an search” crime, proof beyond any automobile trunk for of a needs attendant on the arrest itself?
Possibly reasons, for these does not justify the searches of the automobile trunks in this case and Bennett as incidents of the arrests. In a given situation some circumstances,” necessity, generically “exigent other labeled may permit a search or a seizure cause without warrant, anyone first a search obtaining regardless whether arrested. But if the fact of an arrest is to make the difference permissible impermissible between a an warrantless search, necessary the difference must arise from the conse- quences custody. into The fact of an arrest taking logically bootstrap alone cannot officers into wider war- they making rantless search than conduct without could arrest.
Exigency. the less untenable between two Seeking theories, rationalizing embarks on unsatisfactory per of as a new se” “exigеnt warrantless searches automobiles exception Oregon’s requirement to constitutional search of a premise mobility warrants. The is that the motor vehicle to it. Dating does not allow time obtain warrant to search States, 132, 45 280, 69 from Carroll S Ct L Ed v. United US (1925), as an begins application exception the wider “exigent can make circumstances” a search seizure warrant, conducted awaiting probable without but with cause, not “unreasonable.” majority opinion questions leaves important rule,
unaddressed. In order narrow the new the exception applies only when lawfully stopped officers have the vehicle while motion. This seems reintroduce the idea that search relates to the authority officers’ to detain occu- pants traveling vehicle, in a moving an to a idea similar search arrest, “incident” to an although apparently no “arrest” in the statutory sense of “taking custody” into required. It cer- tainly problem “pretext” reintroduces the stops relationship stop between the grounds for the and the scope the subsequent search.21 present case does not hold that cause to car for evidence of a crime unrelated motor vehicle
laws is itself sufficient to make a stop.” reason “lawful But apparently may officers they instructed that if proba- have ble cause stationary to believe that a vehicle contains items subject to seizure warrant, they but have not obtained a search keep should the vehicle under surveillance until someone begins to away drive it an opportunity then find to make a lawful stop. If some it appears future case that officers waited for to happen longer than it would have taken to warrant, obtain again courts will once have to narrow the “exigentper exception se” automobile searches.
A well-advised felon who does not want his car
searched,
turn,
should
pull
learn to
to the side of the road
when he sees a
vehicle before the officers have
chance
If
stop
stopped,
him.
he
apparently
should remove
bag
briefcase
other
some distance from the car before the
Carter/Dawson,
(1979),
21See State v.
prior
Or
and the
The fatal flaw in the is state- case-by- on a ment that should not determined “exigencies emergencies, circumstances that Exigencies case basis.” action; arise case case. The urgent they of course require disregard require- its of the warrant majority’s desire to rest and also to exception exigent on the for circumstances ment for give police general permission officers warrantless leads irrespective exigency searches of automobiles of actual only to an unresolved contradiction. majority’s in the possible “guidelines,”
It is to state for word, preclude waiting kinds of that for the circumstances conducting a a search of an automobile or warrant before a proceed to make it reasonable to without anything else so as however, must conditions describe guidelines, warrant. Such objects not such as vehicles exigency, of actual whole classes.of anyone legislate If is to for auto- stopped. been that have for persons politically it should be elected generally, mobiles (or themselves), As a this court. that task the voters “exigency,” always, that it proposition statement about a a vehicle to obtain warrant to search generally, impossible is fact, to simply contrary in it has been transit after in occupants placed have been in cases where the especially vehicle. custody outside the
IV. for a principle prior judicial authorization The narrowly a rule and warrantless searches search must comforting be more than a fable exception should confined more than that. practice no opinions, but appellate study by the National Center State recent According of search Courts, of examinations appears from number this Duizend, century. Van past quarter over the practices warrant x Sutton, Carter, Warrant Process & Search study reported: authors of
“The vast of searches are conducted without a (or warrant, usually suspect with the consent of someone searched) legal control of the area to be or incident to the suspect. Delay widely arrest of inconvenience were principal cited as the seek basis officers’ reluctance to search warrant.
<<* * * * [*] strategies were of a host of other “We also told having go use to conduct a search without to the trouble warrant, by timing arrest as obtaining such an so position possibility being in a maximize conduct legally might and seize contraband that be dis- suspected (e.g., by arresting drug a result covered as dealers home).” Id. (footnote omitted). at their cars rather than at Portland, 41,303 Oregon, study reported For “index *21 only crimes” in 1980 and 319 search warrants. Id. at 18.22 Facilitating “per warrants. The majority’s se exigency” exception for warrantless searches of vehicles stopped in theory transit cannot rest on a holding the (in a vehicle until warrant is obtained the absence of consent search) to always impossible, is only when in fact it is burdensome, slow, expensive, and administratively inconve- nient, given the large number of such and stops
vehicle
the
limited
police
resources of
and courts. At the end of its
opinion,
majority
the
notes that modern technology offers the
means to overcome practical
compliance
obstacles to
with the
constitutional
requirements
warrant
and
plan
sets out a
for
doing so.
restoring reality to recitations the constitution requires warrants for and searches seizures to be the rule and warrantless true “exceptions.” searches IAs observed at the opinion, outset of this suggestion serves as reminder that the majority’s newly “Oregon exception” defined automobile transitory is a open accommodation and is to future recon- sideration. crimes,” major Report, 22“Index offenses included in the FBI’s Uniform Crime murder, assault, non-negligent manslaughter, rape, robbery, aggravated
were
forcible
burglary, theft,
theft,
drug
motor vehicle
and arson. The
addition
offenses would
substantially
searches, especially
increase the number of warrantless
those associated
Lowry, supra,
stops.
See State v.
with automobile
Nevertheless, not me that under persuade it does justifiеd by new is true exception conditions current recording and “exigency.” technology communicating for today.23 issued thereon exists judicial affidavits and warrants in fact personnel equipment precludes lack of official and If (includ- warrant, government’s is speedy this obtaining not that ing Department’s) responsibility, the Judicial with the constitutional dealing individual citizen. We are drivers, vehicles, not passengers, of all or owners of rights is of unlawful conduct in fact with searches which evidence stopped police A automobile is officers found. whose (or of its who not wish consent to a search trunk does “effect”) dispense should not have to with the other judicial warrant because the state does protection of readily processes enough accessible officials provide Officials, will equipment, procedures seek such warrants. when this court enforces the provided expeditiously more when holds that a warrant requirement than warrant procedures for warrant getting omitted whenever the everyone concerned. slow and inconvenient Consent or seizure. Although of the devices theory of the requirement, “exigency” evading warrant untenable, its extension all opinion is the least assumption. major- faulty rests on a automobiles an immediate on-the-scene search ity writes that to conduct intrusion than stopped by greater vеhicle no argu- The same vehicle a warrant obtained. hold the until private movable searching made for other ment could be use search war- reducing practical effects, effectively objects. immovable rants to houses and other *22 is the court must choose faulty assumption that The a and of an immediate search the “intrusiveness” of between that and must make temporary to await a warrant seizure Duizend, Sutton, Courts, study & Van the National Center for State 23The for city (1984), procedure Carter, in a used a describes The Search Warrant Process 84-87 supervisor deputy prosecutor City” only a involves a and “Border which identified as warrant, process obtaining telephonic with of a in field in the well as the officer as and, questions lawyer’s to the magistrate to hear the officer’s answers able taped rarely, interrupt and although The transmissions are clarification. to for stop required telephones of vehicle to this from the site a do transcribed. The mobile easily officers; already police generally are available what is needed available to are lawyers magistrates. and trained categorical as of choice obvious, a matter law. That is not so. The belongs correct, is that to alternative the choice person An whose constitutional interests are at stake. reasonably believing probable officer that he to has cause presence search an automobile trunk of the owner person can driver consenting offer the an informed choice between having to an immediate search or the automobile necessary held for time to obtain a warrant. obviously bags
This is even more true of or other person, officer, closed containers. The not the to is one right supposed decide to whether insist have the by magistrate accept cause tested a necessary simply inconvenience seizure. There is no categorical basis for this court or court to make such a for choice found required all owners of automobile trunks closedcontainers a automobiles as If a class.24 insists on the exigent
warrant, there well circumstances for searching a seizure when there none for a container after “exigency has been I seized. Because believe that there is no per searching by- se” the trunks all automobiles justification officers, a there no such fortiori opening bags packages closed found therein.
V. supra. I return to what I Greene, wrote in State v. uncertainty police authority question, stop, and to — persons belongings search and their the confusion about — complains represents which the Chief Justice failure lawmaking. not, instance, It in the first a failure оf the lawmaking power courts, because for the exercise executive place. Investigatory should not be left to enforcement enforcement rest on and are courts the first powers agencies of state other than law criminal governed by laws, no and there is good why investigatory powers reason and enforcement over choice, judicial 24If there had to Justice John Marshall Harlan asserted that always simple period “the lesser intrusion will almost be the seizure of the car for the — — perhaps day necessary search warrant.” Chambers to enable officers to obtain Maroney, 42, 63, 90 1975, 26 J., (1970)(Harlan, dissenting). 399 US S L Ed 2d Ct regards intrusive, wrote, person always If one less Justice Harlan “a search, delay.” avoiding any Id. at remains free to to an 64. consent immediate thus opposite case did not assert the but that which intrusion is question “may depend variety the “lesser” is a debatable aon of circumstances.” Id. at 51-2. *23 prosecution, things, persons potential for criminal all authority dependent than, instance, on laws for should be less inspect a for cockroaches. The laws to restaurant by ordinances, statutes, charters, or rules made home rule delegation any long they these, can traced as as from politically lawmakers or to the voters them- back to elected Many politically elected and selves. accountable, executive officials also are they
particularly Oregon, but are not elected authority private to define and authorize their own persons over property. and arguments that
Yet we continue to see fallacious authority police has held that have this or that because court federal does not violate the state the conduct at issue actions; laws constitution. Courts do not authorize executive enforcement actions do. A on its own can authorize law court court) (aside by carrying out from orders by I, in Article section 9. warrants authorized the constitution authorizing action, executive such Of course law comply seizure, with the constitution. as a search or a must success, courts, with more less enthusiasm Because government sought apply limits on have to the constitutional lay lawyers citizens have cases, actions in individual both practices they questions police if were a come to see controversy officials and courts. law enforcement between systematic lawmaking argu- Proposals have met with lawyers, courts,” to “leave it ments, often from clamoring legislators, enough controversies with other enough understandably pleased attention, have been their just that.25 do exception” its from traces “automobile supra. States, The Chief Justice asserts v. United
Carroll Carroll opinion good notes or Neither “was and is law.” authorized a search the fact that Carroll sustained discusses policy Act. The Prohibition statute, of the National authority legislative to undertake warrantless need for clarification 25The recognized by Oregon Commis Criminal Law Revision or seizures was searches subject proposals sion, provisions this in its on which included numerous (Pinal Report, Oregon legislature. Proposed Code Draft and Criminal Procedure See Poaching 1972); Platt, Legislative in Sacred Warrantless Search Law: A Statement of Preserves?, search and Most of the warrantless 52 Or L Rev 139 Judicial provisions adopted. were not seizure transporting intoxicating to authorize seizures of vehicles liquors by Congress, was debated and enacted Supreme did Court. What the Carroll court was sustain the statutory authority ground to search that similar contemporaneously statutes were enacted the fourth with amendment.26
Clear and reliable
rules
conduct
desir-
able,
long
they
as
as
right
do not violate the constitutional
people
persons, houses,
the
to be secure in their
papers,
effects,
unreasonable,
against
warrantless
searches
sei-
Perhaps
zures.
a law
such
if
authorizing
acts can be sustained
stays
its reach
within constitutional
great
bounds
situations,
majority of
and cases in which its application
boundary
crosses the
by statutory
cаn be dealt with
inter-
pretation or individualized
Moyle,
decisions.
State v.
Cf.
(1985),
Or
In his concurring opinion to State v.
301 Or
(1986),
Regrettably the majority chooses to subordinate indi- liberty. vidual It states a rule name of “exigency” that goes beyond any actual need dispense with warrant many pursuit circumstances. In of clear rules for the most basic government citizen, confrontation between the and the majority prepared to err on the government side and leave legislators the burden to redress the if balance they so choose.
My opposite. view is the Like the Chief Justice and 26Supreme scrutinizing by officers, began Court decisions searches state which only years Ohio, Mapp 643, 81 1684, 6 (1961), ago with 367 US Ct L S Ed 2d 1081 directly could test the search under fourth amendment standards of fourteenth process; necessarily amendment such due decisions assume that actions of state officers are authorized under law. state law clear, practical I rules for enforce- majority, also favor hоwever, it is, the more simpler
ment actions. The rule likely that the constitution forbids or to include some actions constitutionally could be author- actions that to exclude some operational effect to a give for a court to thing ized. It is one line” standards that are guarantee by “bright constitutional strictly guarantee instances than the more in some protective if a different rule requires legislature let the enact court, today, as this court does disagrees. wrong But it is many into a domain that includes push “bright line” rules legis- premises, inviting cases not defensible constitutional the court has away powers governmental lators to take ask lawmakers for It that must granted. government is the ask citizen, not the citizen that must authority against power. against “inherent” official lawmakers to enact laws said, contemplates even- today’s As decision I have procedures of warrant change tual the modernization fiction, like A that rests on a writes. rule which expectancy. has a limited life today’s “per exigency,” rule of se remains the constitu- governing premises The source of I, in Article warrant stated judicial guarantee tional *25 write judges not what people enacted apply, judges remain for future guarantee will about it. the constitution not choose to amend people as the do long their not sacrifice I would guarantee. to sacrifice efficiency. I therefore dissent. in the name of behalf J., dissenting opinion. Lent, in this joins