*1 1, 23, Argued August petition and submitted March reversed and remanded (322 360) review denied November STATE OREGON, OF
Appellant, v. BURR,
NOAH Respondent. (Control))
(930258CR; CA A83869 OREGON, STATE OF Appellant, v. ALVAREZ,
CHRISTOPHER MICHAEL Respondent. CA A83870)
(930259CR; OREGON, STATE OF Appellant, v. FRIES,
MATTHEW Respondent. CA A83871)
(930260CR; OREGON, OF STATE Appellant, BERGEN, MATTHEW ALAN VAN Respondent. CA A83872)
(930261CR;
Dan Public Christopher respondents Burr, Pries and Matthew Noah Sally a, L. Aver Alvarez. With him on brief Michael Public Defender. argued brief for and filed the the cause
Brian D. Aaron Bergen. respondent Alan Matthew Van Judge, Presiding Arm- and Edmonds Warren, Before strong, Judges.
EDMONDS, J. dissenting.
Armstrong, J.,
EDMONDS, J. count of
Defendants were each one charged controlled substance and one count manufacture of a (4)(a). 475.992(1), aof controlled substance. ORS possession to trial, defendants moved evidence seized suppress Before aof and the following pickup a warrantless admissions thereafter. The trial court granted obtained from defendants 138.060(3). motion, ORS appeals. defendants’ and the state the warrantless search violated defen- The issue is whether I, 9, under Article section rights dants’ constitutional Fourth Amendment to and the Constitution Oregon We reverse. United States Constitution.
The trial court found: “1) 1993, highway On October on 281 Hood River Sheriffs County p.m., at 9:50 Hood River approximately Tomson, patrol, pickup Jim while on observed Deputy truck The truck’s on the east shoulder of road. a traffic hazard. The off and it did not create lights were up, patrol pulled in his car and in uniform. He deputy got out see if to the parked perpendicular present The defendants were was needed. four assistance the area of the had overhe- vehicle said hunting. thereafter, they Shortly they said had been ated. hot, be appear did The noted deputy they just pulled up though the defendants said even at noted a deflated rubber raft located deputy The this area. the raft placing The rear of individuals pickup. pickup. bed of the into the
“2) deputy The noted there dark at time. It was offered defendants pickup. in or about the guns were no looking area over they were deputy; story a third in Gresham. weapons home left their and had “3) for identification asked the individuals deputy identification and They produced pickup. on the papers County the Hood River through ID check ran an deputy *4 dispatch. Sheriffs
“4) by that Noah dispatch notified Tomson was Deputy Menacing, Unlaw- felony wanted on a Burr was and Substance Delivery of a Controlled Weapons, ful Use of when use caution was told to a Witness and Tampering With with Mr. Burr. dealing “5) toUp point, the individuals cooperative were friendly. The Deputy did not they tell them could not
leave.
“6) being Upon by informed Dispatch of Mr. Burr’s warrant, Deputy placed Tomson Mr. Burr under arrest and put him in the patrol car.
“7) With Deputy Ritock, Tomson was Jason an unarmed reserve officer not in who.was uniform. After placing car, Burr in patrol Tomson, Mr. Deputy standing at a distance from the remaining individuals, three asked them who owned pickup. He was informed that the pickup belonged Bergen’s to Mr. Van grandmother.
“8) eight five to Approximately after the minutes time Deputy Tomson was informed of Mr. Burr’s outstanding warrant, Deputy Sheriff upon Paul Ufford arrived the scene.
“9) Deputy Tomson observed four Coors beers in the bed of the partially by were covered the rubber raft. Between the time that Mr. Burr was under placed arrest arrived, Ufford Deputy Deputy Tomson discussed with remaining stories, defendants their various and ques- why as to they really tioned them to dants there. At no time prior Deputy arriving Deputy Ufford tell did Tomson the defen- they could not leave. There was some discussion pickup. Deputy about would drive who Tomson was concerned who about was licensed drive.
“10) arrived, When Ufford he had his Deputy overhead lights on and his vehicle parallel to Tomson’s and to the There perpendicular pickup. was room for the leave; by it was not blocked either vehicle. patrol Upon arrival, Ufford’s Tomson informed him of the three stories by remaining told nodded Deputy defendants. Ufford to the three individuals Tomson pickup. walked over was about the of the in that neither concerned status owner, claimed at the scene. registered nor the owner was scene, When arrived at he noticed one of the Ufford standing by in the car and the other three patrol individuals the bed on his patrol had not turned pickup. Tomson siren, lights weapon. or nor had he drawn his car’s overhead on, arrived, lights but When Ufford he left his car’s overhead out did not his service revolver. pull “11) of his immediately patrol Almost out upon getting car, credibly that marijuana. Ufford testified Ufford smelled to mari- exposed reactions allergic he suffers severe scene, complete leaving he was unable juana and after
145 exposure. as a result At the time Ufford duty his shift of marijuana, stated, He dope?” he “Where’s smelled pickup the far of the to check on the walked around side door, side, on the opened passenger looked passenger anything. didn’t floor board and see “12) of Ufford then moved the rear Deputy He moved marijuana grew stronger. and the smell of pickup covering and uncovered two ice the raft bed raft, marijuana When he removed the smell was chests. sticking stronger. marijuana even He noted a leaf out one of the ice chests. He the ice chest and observed opened marijuana protruding from inside chest. backpacks marijuana deputy ice chest in which the leaf was visible to the marijuana sticking leaves packs contained two outside bags. bags approximately by of the were 14 inches wide eight deep high inches and 14 and were stuffed inches inside They freshly marijuana.” the ice were full of cut chest. by express implicit We are bound the trial court’s or findings supported by provided they are evidence in the they law, its record. In this are. In conclusions of occupied neither nor mobile said, trial court “The vehicle was Accordingly, Deputy it.” the time Therman first observed erred our function to decide whether the trial court when was not concluded as a matter of law that (1993). Ehly, P2d 421 66, 75, Or 854 “mobile.” State 317 argues application of the “auto The state against exception” general prohibition warrant- mobile justified the circumstances of this searches was under less probable exception provides that “if That case. person’s which is mobile automobile, that a cause believe stopped by police, crime evi or contains contraband they may the vehicle search of dence,” a warrantless conduct 268, 276, 721 P2d Brown, Or State v. 301 for those items. (1986). argue that the automobile Defendants apply was because the to the facts of this case does they at the time the officers outside its cab encountered it. deciding this of the law is instructive
A review case stopped while he Brown, the defendant was issue. driving con- defendant declined his automobile. When automobile, the officers searched of his sent to a search glove passenger’s compartment for evidence box and the would accusation support that he was in possession of a The Supreme weapon. held: presents “This case for us the heretofore unanswered there question: Is an exception’ ‘automobile to the warrant requirement I, 9, Oregon Article section of the Constitu- tion? We hold that there is an such exception, provided (1) that the automobile is by mobile at the time is stopped (2) governmental or other authority, cause exists the search of the vehicle.” at 274.
The decision in Brown
Kock,
followed
State v.
(1986).
The court held that the did automobile not It said: apply. draw bright just elect to the so-called of
“[W]e line Brown where we left it in that case: Searches of that automobiles just have been lawfully stopped by police may be searched without a exigent without a demonstration of cause to circumstances believe probable or automobile contains contraband crime evidence. assume, argument, we of that there In the sake We cause for the search of the automobile. probable hold that an automobile that was nevertheless of the time the first unoccupied immobile and parked, investigation of a it in with the encountered connection by magis- a by a warrant issued crime must be authorized or, demonstrate alternatively, prosecution must trate mobility potential other than the exigent that circumstances to Here, prosecution failed exist. of automobile exigent circumstances.” 302 any individualized demonstrate atOr 32-33. light Kock, we v.
In the
of Brown and
decided State
(1991).
App
Cromwell,
Cromwell,
P2d 888
responded
report
prowler
a
a
near a
officers
of
residence.
They
parked in
located the defendant’s truck
the middle of
roadway,
engine
running
parking lights
not
and its
on.
its
companion
Upon
in
The defendant and a
were
the truck.
voluntarily
being
officers, the
contacted
defendant
marijuana
separate
that was
revealed
located
containers
jacket
truck,
shirt
under his
pocket.
on the seat of the
his
provided
We held that those facts
cause
marijuana
caches of
would be found else-
believe
other
Subsequently,
where in the truck.
the officers searched
methamphetamine
truck and seized
container in
jacket
pocket
that was
the seat of the truck.
on
analyzing
exception per-
whether the automobile
we
truck,
mitted the warrantless search
said:
apply
“The
not
a vehicle
does
parked,
unoccupied
immobile and
when police
it,
there are exigent
encounter
unless
circumstances in addi-
State
tion to the
‘potentialmobility.’
vehicle’s
(1986).
29, 33,
In State v. (1992), appealed possession his conviction for defendant assigned error the trial of a controlled substance and suppress in a evidence obtained court’s denial of his motion arresting pickup. had officer of his warrantless search carrying might metham- be information that the defendant phetamine. traveling pickup saw the defendant’s He first very speed. opposite the defen- After direction at slow by, it onto saw move vehicle went officer dant’s opened got stop. out The defendant and and shoulder parked hood. The officer turned around and behind the pickup turning lights. without on his overhead The defendant approached lowered the hood and the driver’s door. The officer help, asked the defendant if he needed but the defen- respond. dant did attempted got pickup Instead, he in the pickup’s engine sputtered to start it. The and then died. methampheta- Because the officer detected the odor of emitting mine defendant, from the he searched the vehicle. Subsequently, he seized controlled substances from it. application
We the trial reversed court’s of the auto- mobile rule to those facts. We said: nevertheless, “If the car is not moving, it is considered to be ‘mobile’ it occupied operable when if first * * * Cromwell, encounter it. although the defendant’s pickup it, was when parked police encountered oper- was able and defendant sitting was in the driver’s seat. We held that the automobile exception authorized a warrantless search of the pickup, because the probable cause to believe that it contained evidence of a crime. “In this the trial court found that defendant’s (startable moveable)
pickup ‘sufficiently was mobile allow the vehicle’s immediate the time of the ’ evidence, “stop.” however, is that the pickup was crippled [the officer] first observed it and broke down shortly it, thereafter. Defendant tried to fix but the engine sputtered attempt on the first it and re-start would not fire after that. The evidence does not support the trial court’s finding was mobile at that time. The search justified cannot be under the automobile exception.” 117 Or (citation App at 423-24 omitted; and footnote emphasis supplied). light interpretation
In the of our in Cromwell and meaning Warner of the “mobile,” of the word we turn to this case. Based on the facts that it found, the trial court con- meaning cluded that the was not within the “mobile” exception. of the automobile It reasoned: “The vehicle occupants and the were outside vehicle. of the Additionally, deputy testified hood cold, had not been driven for some indicating *8 to exception apply of time. The automobile does not period case.” the facts this underlying exception
The rationale
the automobile
is
criminal
from
prevent
activity
being quickly
to
evidence of
the
locality
out
the
in which
warrant must be
moved
of
Brown,
Here,
when it concluded a as matter of law that the automobile exception apply does not under these facts. The parked along public highway night a at an area, isolated loading and defendants were a raft into it when Tomson requirement mobility arrived. The of was met because defen- away dants have could driven in the at moment. probable Inasmuch as the officers had cause to search as a marijuana emitting result the smell of of a from mobile exigency losing vehicle, the of otherwise of evidence criminal delay procuring conduct because of the inherent in a search justified an immediate search. Reversed and remanded. dissenting.
ARMSTRONG, J., Oregon Supreme 1986, In a series of cases require Court established an automobile to the police get 9, ment I, in Article that section must a warrant to a conduct search. The to create crafted a bright-line test for officers to use to determine whether they can conduct a warrantless search of an automobile they cause to of believe contains evidence a Simply apologies stated, Kinsella, crime. author of Shoeless and with to W.P.
Joe, whose book the film “Field of became you you stop “If it, the test is: can Dreams,” search.” See (1986). 29, 32-34, 302 P2d State v. Or 725 1285 Supreme majority is not satisfied to cover search of Court’s test automobiles seeks broaden it by police stopped It have not officers.1 thereby uncertainty doing an area so, errs in creates of Supreme sought has remove it. the law in which the Court precedent majority Supreme fails to follow Court Because the respectfully I dissent. area, 1 meaning confusion, important clear the the word it is to make To avoid causing moving to come to a “stop” to the act of a vehicle in this context. It refers stop applies equivalent person, a term stop. of a which is of art It to the is not people regard who people, applies to whether the police stops and which without going stopped. See ORS 131.625. stopped 131.605-ORS are were somewhere established an requirement exception to the state constitution’s warrant (1986). Before Brown, P2d 1357 State could an of a Brown, automobile for evidence 1) they obtaining if( proba- without first a warrant crime cause believe automobile contained such evidence ble (2) exigent impracticable circumstances made it for them and to obtain warrant before conducting
a the search. 301 Or exigent justify 274. Whether existed to circumstances by warrantless search of an automobile had to be evaluated by case-by-case the courts id. at on basis. See 274-77. “ adopt ‘per Brown, court decided to se ”
exigencyrule’ for certain automobile searches under Article per 9. The se I, section searches covered rule *10 involving identified to be those lawfully automobiles that have been stopped, assuming stopped and mobile that are probable cause to conduct Id. existence of such search. police searches, all other automobile still had For establish the existence of exigent circumstances sufficient justify recognized other, search, a warrantless absent some requirement. (by impli- exception cation). id. Cf. open possibility that the court in left Brown exigency adopted might expanded perse cover be rule had lawfully had not been in which automobile situations stopped time of the search: with the search of are in this case
“We not confronted just lawfully has is not vehicle that mobile therefore, We, do not address by a officer. stopped police of seizure a warrant opinion this whether is required.” automobile impounded a parked or Id. at 277. Brown, itsof decision three months
Within per its required it would extend whether to address court just been exigency have not vehicles that to cover rule se rejected lawfully an stopped, such extension. and the court an involved in Kock The search at 32-34. Kock, parking lot of employee an employer’s conducting his store. Two officers surveil- employee put lance at the lot watched the into his car a package that he had taken from the store. The circumstances gave under which that occurred the officers cause to package believe that the contained stolen merchandise, and they conducted a warrantless search of the car to seize the employee merchandise after the They had returned to the store. employee then arrested the inside the store for theft. suppress The defendant moved to the evidence seized in search, and the Court held that the suppressed evidence had to be because the search was unlaw- doing, rejected argument ful. In so the state’s per exigency search came within the se rule established in explained Brown for certain automobile searches. The court its decision as follows:
“Although logically
argued
it can be
that the rationale of the
States,
132,
seminal case of Carroll v. United
267 US
45 S Ct
* * *
(1925),
L Ed
its progeny
justify
would
extending
the automobile
to automobiles that are
we elect
capable mobility,
bright
of
to draw the so-called
line
* * *
ofBroicnjustwhereweleftitinthatcase:
[AJutomobiles
just
that have
been lawfully stopped bypolice may be searched
without a warrant and without demonstration
exigent
of
circumstances when
probable cause to believe that
the automobile contains contraband or evidence
a crime. In
of
we assume for the sake
argument
that there was
probable cause for the search of the automobile. We nev-
ertheless hold that
search of an automobile that was
immobile and
at the time
parked,
unoccupied
first
it in
investigation
encountered
connection with the
a crime
*11
or,
a warrant
by
by magistrate
must be authorized
issued
alternatively,
prosecution
exigent
the
must demonstrate that
than
the auto-
potential mobility
circumstances other
the
Here,
any
the
failed to demonstrate
prosecution
mobile exist.
exigent
individualized
circumstances.”
omitted).
supplied;
(emphasis
citation
153 requirement the that state recognized in Brown. the majority claims that our decision State
The
(1991),
App 654,
Or
the encountered was parking lights occupied. dead-end on and it was road its App pickup at 659. The court reasoned that the engine driver have started the was mobile because the could away pickup words, time. In there and driven the other nothing suggest pickup that the was immobile. was distinguished effect, from on then, the court Cromwell Kock occupied ground the mobile, in Cromwell was unoccupied the car in Kock and immobile.2 while was unoccupied parked the the Here, on a road when encountered it. shoulder of the majority unoccupied mere the that was views fact as fortuity, the however, were near because the defendants steps get it and truck and walked a few into could have away. majority, issue then, To the determinative driven is whether the truck was it concludes it was.
mobile, that problem trial conclusion, however, with that was not mobile. court concluded that the vehicle support There is evidence to that conclusion. One him testified that defendants had told the officers pickup engine had overheated. The court found that pickup, at the time officers encountered the but cold conflicting about court did not reconcile evidence time the had been on shoulder. amount of did deter- arrest, the officers Furthermore, after Burr’s keys They pickup. determine, did mine had the to the who explain, Cromwell between facts I drawn in As will distinction moment, per exigency rule established se in Kock is of no because case and those lawfully stopped the requires police to have in Kock Brown and confirmed apply. exception to the automobile vehicle order for *12 154 remaining
however, that none of the defendants had a valid consequence, him. driver’s license with As a officers verify any lawfully unable to of the defendants could pickup away. drive summary, pickup parked
In was and had not recently been moved when the officers encountered it. It is pickup operable, not known whether the was and the trial implicitly did find, court not otherwise, or that it was. Before they the officers determined that had cause to they search vehicle crime, for evidence of a but had tried lawfully failed to establish that of the defendants could pickup away. properly drive the On facts, those the trial court pickup concluded that the was immobile. pickup might in Cromwell have mobile, been just
because it had been driven before the encountered parked it, and it was in middle road with in of a the driver simply ignition lawfully it could who turned the away. pickup contrasting driven the in facts of this just which the road, off a had not operable, driven and was not known to be and in which no one position lawfully away, in a drive it establish that validity Hence, was not mobile. whatever the of Crom- authority well, it is for the case search of exception under requirement. the automobile state warrant wrongly any event, I believe that Cromwell was Supreme decided cannot be reconciled with Court’s explained Kock, the in Brown and Kock. In court decisions willing exception to extend that was not under the state constitution as far
as the United States Supreme Court done under the Fourth Amendment. exception doing, expressly distinguished from the state so exception Supreme applied v. Court California (1985). Carney, L Ed 2d 406 2066, 471 105 S Ct US Kock, at 33.3
3 The court said in Kock line good make a draw the warrantless “Forensic advocates can case to of the United States convinced the and have in fact elsewhere stationary operational but vehicle to a the automobile extend just stopped highway. being readily parking on a public as mobile as one lot as (1985). 2066,85 386,105 On L 2d Carney, 471 Ed US S Ct See California indis- Carney legally the facts in are Significantly, Hence, if the auto- from those in Cromwell. tinguishable Carney goes beyond that was applied mobile and the Kock court constitution, under the state recognized see Cromwell did, id., that it then exception applied said *13 does too. Carney, adult approach officers watched an then went with youth
a in The youth Diego. downtown San in a the adult that was public parking to motorhome parked all the windows inside, lot. went shades over They pulled an hour and a The quarter. remained inside for about motorhome, and he told after left the to the he spoke youth with the adult activity he had in sexual engaged them that The returned youth exchange marijuana. the door. with the and knocked on
motorhome adult the door and knock, stepped to the opened response consent, the officers warrafit or outside. Without a search mari- to search it and found into the motorhome stepped weigh drugs. of the used to type and a scale juana, plastic bags with adult, who was later charged then arrested the They at 387-88. for sale. US marijuana possession the evidence defendant sought suppress held that search, and the Court Supreme obtained in the exception under the automobile search was valid id. 388-89, See warrant requirement. Amendment Fourth that was motorhome It reasoned that a parked 394-95. within came key” turn of an “by ignition mobile readily Id. at 392-93. For considered purpose, the exception. an automobile. from indistinguishable to be motorhome See id. at 392-94. Carney indistinguishable are legally
The facts in in Cromwell. Both occupied involved parked, from those * ** interpreting hand, courts and other state scholars the other constitutional * * * excep- be no automobile that there should believe their own constitutions as tion such. Supreme exception as far as the automobile not to stretch “We choose Amendment, nor interpreting the Fourth has done in United States Court of the However, Brown, supra. Brown position in State v. taken retreat from the do we exigent without other searches warrantless automobile limit for sets the outer circumstances.” omitted). (citations Or at 33 away that could have vehicles ignition key. been driven with the turn of an Carney parked parking The vehicle in was recently lot and had not been moved, while the vehicle Cromwell was in the middle of a dead-end road and recently moved, but those differences do not make the latter vehicle more mobile than the former.4 Carney equivalent
Because and Cromwell involve exception recognized Carney facts, and the automobile with that inconsistent established Brown and misapplied excep- follows Cromwell the state automobile requirement.5 problem A tion to further bright Supreme that it blurred the line that the Cromwell is distinguish in Brown and Kock to Court had established subject searches that are to the state automobile between that are not. and those people recognized in Kock bright it had whether the line that established could debate dividing given appropriate the rationale on line, based, but the court which the automobile *14 clear: that the line it had chosen was value in the fact found Brown, and v. supra, State emphasized “As State (1986), Bennett, police P2d the need 721 1375 301 Or actions. of this state also guidelines for their Citizens clear clearly out as rights spelled need to have their constitutional as possible.” excep- that the automobile The court believed
the search liberty Kock, something to do. we are at overruling that which is not without formulated,
As the state covers vehi- most exception that cles have cause to search under police in which for likely impracticable circumstances it would be a By them obtain warrant for search. limiting to vehicles that are when the state moving stopped, can also focuses on circumstances that more readily that be seen to be is because a vehicle is exigent. stopped That of its intended almost con- certainly short destination would tinue have it, on once released police generally that would be to obtain a warrant before impracticable occurred. have dealing
Once the with vehicles that police start certain that just stopped moving, while it is less can obtain warrants vehicles will move before se Hence, them. less a appropriate apply per them. rule to exigency
Elimination of the the vehicle be requirement test bright-line blurs moving stopped by Court to establish for the state sought Supreme Instead of about exception. case-by-case judgments exigency, a which the to eliminate by creating sought rule, 33-34, see exigency se at per make case-by-case likely courts must now about judgments mobility a for mobility, in which becomes likely proxy exigency. vehicle
Here, majority says example, readily it and mobile defendants were near could because it reach the same away. in it and driven it Would gotten it, from or standing away if 50 feet result defendants were majority would the mobility feet? What conclusion about city if meter on reach the vehicle were parked parking result near it? Would the standing and defendants were street it, were from or if walking away they different if they be *15 it toward it? Would be different two blocks but away walking of and defendants if the were in front a house it? near standing by in is test Cromwell applied The that the point case-by- the problem in this case has same majority the eliminate to sought Court Supreme case evaluation in first place, the state automobile by creating step with the added vice that it focuses on an issue that is one that to removed from the ultimate issue test seeks get police required address, which should be to is whether particular police a vehicle. If the order to search a apply imprecise an standard decide and courts are to to constitutionally permissible whether it to conduct a is warr automobile, an the standard should focus antless exigency, issue, which is rather than relevant, on the ultimate likely mobility. issue, on a substitute such as argues majority adherence to the Brown The substance, case would exalt form over and Kock rule permit require the vehicle to “the officers to because would App effecting at feet before the search.” roll several police majority wrong. could conduct 149. The is waiting it to without warrantless search of exigent have to establish move, but the state would impracticable obtain a made it for the to circumstances e.g., conducting See, Kock, 302 Or warrant before search. showing might to make such a have been able at 33. state not to do so.6 in this but chose majority by argument in this made
The same There the vehicle would made in Kock. case could have been away certainly within 30 minutes of driven have been almost it, to search first had cause time the work driven the car from would have the defendant because at 31. If See 302 Or the conclusion of his shift. that time at at it exalts require police wait an form over substance pickup in this case to of time for amount indeterminate apply, exception for the state in order move subject in its criticism to the same then application in Kock. of the state exception rec- Again, the state automobile however, the dilemma not create ognized Kock does Brown only requires majority. focus It suggested conducting exigent before circumstances the existence on Although course, analysis applies Cromwell. to the search the same Of under the state automobile upholding the search erred in Cromwell court exigent under as a search conducted might have been valid exception, the search still basis, upheld to be on For the search Or at 33. See circumstances. showing appropriate the trial level make an however, have had to would the state impracticable a warrant for the search. to obtain that it would to establish *16 covered of an automobile that is not warrantless presents problem exception. for the than That no more recognized in 1986. state existed before summary, majority holding errs within the automobile defendants’ comes search exception requirement. Because the state warrant argue to the does not other state majority’s applies, requirement deci- I must dissent from the suppressing the evi- the trial court’s order sion to reverse search of as a result of the warrantless dence obtained pickup.