Case Information
Arguеd and submitted January 5; decision of Court of Appeals reversed, order of circuit court affirmed December 30, 2021
STATE OF OREGON, Respondent on Review, v.
CHARLES STEVEN McCARTHY, Petitioner on Review.
(CC 16CR75546) (CA A 165026 ) (SC S067608)
was driving. During the stop, officers developed probable cause to believe that
the vehicle contained contraband. After arresting defendant, officers conducted
a warrantless search of the vehicle, relying on the “automobile exception” to the
warrant requirement that this court created in
State v. Brown
,
On review from the Court of Appeals.* Zachary J. Stern, Ferder, Casebeer, French and Stern, LLP, Salem, argued the cause and filed the briefs for peti tioner on review.
Christopher A. Perdue, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Rosalind M. Lee, Eugene, filed the brief for amici curiae Oregon Criminal Defense Lawyers Association and Oregon Justice Resource Center.
______________ * On appeal from Marion County Circuit Court, Lindsay Partridge, Judge.
DUNCAN, J.
The decision of the Court of Appeals is reversed. The *2 order of the circuit court is affirmed.
______________
** Balmer, J., did not participate in the consideration or decision of this case.
DUNCAN, J.
In this criminal case, defendant moved to suppress evidence that law enforcement officers obtained during a warrantless search of a truck. Defendant had been driv- ing the truck when officers stopped it for a traffic viola - tion. During the stop, the officers developed probable cause to believe that the truck contained contraband. Although the stop occurred on a weekday afternoon near the county courthouse and the officers had mobile phones and a com puter, the officers did not attempt to contact a magistrate— either in person or by phone or computer—to obtain a war- rant to search the truck. Instead, they searched it without a warrant. At the time of the search, the truck was lawfully parked in a parking lot and defendant had been arrested.
In his motion to suppress, defendant argued that
the warrantless search of the truck violated Article I, sec-
tion 9, of the Oregon Constitution, which prohibits unrea-
sonable searches and seizures.
[1]
Under Article I, section 9,
searches and seizures must be conducted pursuant to a
warrant or one of the few specifically established and lim
*3
ited exceptions to the warrant requirement.
State v. Bliss
,
In response to defendant’s motion to suppress, the state argued that the warrantless search of the truck was justified under the “automobile exception” to the warrant requirement. This court created the automobile exception in State v. Brown , 301 Or 268, 278, 721 P2d 1357 (1986), in which it held that an officer may conduct a warrant less search of a car if “(1) the car was mobile at the time it was stopped by the police; and (2) the police had probable cause to believe that the car contained contraband or crime evidence.”
The trial court rejected the state’s argument, rea- soning that the automobile exception is premised on the people to be secure in their persons, houses, papers, and effects, against unrea- sonable search, or seizure[.]” [1] Article I, section 9, provides, in part, “No law shall violate the right of the existence of exigent circumstances, and the state had failed to prove that exigent circumstances existed at the time the officers sеarched the truck.
The state appealed, and the Court of Appeals
reversed on the ground that, under
Brown
, exigent circum-
stances are presumed to exist if a vehicle was mobile when it
was stopped by the police, regardless of whether there is an
actual exigency after that point.
State v. McCarthy
, 302 Or
App 82, 92,
On defendant’s petition, we allowed review. For the reasons we explain below, we overrule ’s per se exi- gency rule and hold that, in order to justify a warrantless sei- zure or search of a vehicle based on exigent circumstances, the state must prove that exigent circumstances actually existed at the time of the seizure or search. Because the state did not do so here, we conclude that the trial court cor- rectly granted defendant’s motion to suppress.
I. BACKGROUND
On the afternoon of Monday, November 28, 2016, Salem Police Detectives Garland and Bidiman were surveil- ling a residence from an undercover police car. They saw a truck occupied by defendant and two passengers parked in front of the residence.
When defendant began driving away from the res- idence, Garland and Bidiman decided to follow him. As the truck drove by the officers, Bidiman recognized defendant as the driver. Garland was familiar with defendant from prior *4 drug investigations in May and June of 2016. During the June 2016 investigation, defendant reportedly had agreed to sell heroin to an informant working with another officer, Detective Carney, but the sale never occurred. As Garland drove behind defendant, he saw the truck drift into a bike lane. Garland initiated a traffic stop at 1:31 p.m. as defen dant turned into a parking lot. Defendant legally parked the truck in a parking stall, and Garland positioned the police car behind it. The stop occurred approximately one mile east of the Marion County Circuit Court building in dоwntown Salem.
The officers approached the truck and Garland asked defendant for his driver’s license, registration, and proof of insurance. Defendant stated that his license was suspended and that he was not the registered owner of the truck. Defendant provided a copy of the truck’s registration but said that he did not know where the truck’s insurance card was. Garland asked defendant to look around the cab of the truck for proof of insurance while he returned to the police car to check the status of defendant’s license.
After using the police car’s onboard computer to confirm that defendant’s license was suspended, Garland returned to the truck and asked defendant if he had found proof of insurance. Defendant said that he had not, and Garland then allowed defendant to make a phone call to the truck’s registered owner to determine whether the truck was insured. Meanwhile, Garland began processing cita- tions for failure to maintain a lane and driving while sus- pended. After calling the truck’s registered owner, defen- dant told Garland that the truck was insured through State Farm, at which point Garland asked Bidiman to call State Farm to verify the truck’s insurance. While Bidiman was on the phone with State Farm, a third officer, Detective Smith, arrived on the scene. At that point, Garland tried to contact Detective Carney to ask whether there was a lawful basis to arrest defendant in connection with the June 2016 drug investigation.
During their interactions with defendant, the offi cers noticed that defendant and his passengers seemed ner- vous. The officers also observed dark brown stains on the hands of defendant and one passenger, which the officers believed were consistent with handling heroin.
Garland’s attempts to contact Carney were unsuc- cessful, but Smith was able to reach Carney on Carney’s personal cellphone. Carney told Smith that there was probable cause to arrest defendant for conspiracy to deliver heroin based on the June 2016 investigation. Smith then approached the truck and asked defendant about the pres- ence of controlled substances, which defendant denied. Smith also requested consent to search the truck, but dеfen- dant refused.
Instead of arresting defendant immediately, at 1:39 p.m. Garland and Smith contacted Oregon State Police Trooper Freitag, a K-9 handler, and asked him to come to the scene with a drug detection dog. At the time the offi - cers called Freitag, defendant had still not been issued any citations. Freitag arrived at 1:57 p.m., and the officers asked defendant and his passengers to vacate the truck. Defendant was arrested for conspiracy to deliver heroin based on the June 2016 drug investigation. Freitag then deployed his drug detection dog, who alerted to the presence of a controlled substance near the front passenger door of the truck, at which point defendant’s passengers were both arrested. Eventually, the truck’s registered owner arrived at the scene, but he was detained on an outstanding war- rant and, therefore, was unable to drive the truck away.
Because the truck was legally parked and was not a traffic hazard, Salem Police Department policy did not authorize the officers to impound it. During his testimony before the trial court, Smith estimated that obtaining a warrant to search the truck would have taken “four hours, if not longer.” Garland testified that, instead of applying for a warrant, the officers relied on the automobile exception to the warrant requirement to search the truck. Garland also explained that he could have sought a warrant but had chosen not to do so because he believed the unoccupied truck was still “mobile.”
The search of the truck uncovered heroin, a scale, and drug paraphernalia. Based on that evidence, defendant was charged with possession and delivery of heroin.
Defendant moved to suppress various items seized after his arrest, including the items discovered during the search of the truck. After an evidentiary hearing, the trial court issued a letter opinion in April 2017, making the fol- lowing findings regarding when the truck was mobile and when the officers developed probable cause to believe it con tained contraband:
“5. Immediately prior to the traffic stop the vehicle was mobile. During the traffic stop the vehicle was lawfully parked in a parking lot accessible to the public.
“6. Once defendant was in custody and the vehicle was at least temporarily immobile[,] [o]fficers contacted the reg istered owner and determined that he had a warrant for his arrest and therefore he was unable to move the vehicle. “7. Probable cause existed to believe the vehicle would *6 contain contraband due to the following: “a. Officer Garland observed defendant leaving from a residence that he knew to be a known drug house; “b. Police officers knew there was probable cause to arrest defendant for a drug offense from [June] 2016; “c. During the traffic stop officers observed stains on defendant’s shirt and fingers consistent with tar heroin; “d. Defendant appeared nervous and shaky during his contact with police;
“e. A drug detection dog alerted to the presence of con-
trolled substances during the traffic stop.”
The trial court went on to explain that a warrant-
less search under the automobile exception is valid under
Brown
if (1) the automobile is mobile at the time it is stopped
by police and (2) probable cause exists for the search. (Citing
, 301 Or at 274.) The trial court further explained
that “the mobility of the vehicle and the existence of proba-
ble cause to believe defendant has committed a crime must
exist at the same time for the exception to apply.” (Citing
State v. Kurokawa-Lasciak
,
Applying those rules, the trial court held that the automobile exception did not apply because the truck was not mobile and was unoccupied at the time the officers devel oped probable cause that it contained contraband. The trial court also held that the automobile exception did not apply because there were no exigent circumstances at the time of the search:
“The state cannot justify the search of the vehicle through the automobile exception. The state bears the burden to establish an exception to the warrant require- ment. Under the circumstances in this case, it is clear that the police lacked any reason to believe an imminent threat existed that someone would move the vehicle prior to obtaining a warrant.
“Officer Garland testified that he was concerned about how long it would take to get a warrant. However, he was completely unaware of the option of seeking a telephonic warrant. In fact, he responded he was not trained in the area of obtaining a telephonic warrant and stated, ‘I don’t believe we can do that.’ Furthermore, he did not explain ade- quately why the police could not observe the vehicle during the period of time needed to obtain a warrant and only seize the vehicle if there was an attempt to move the vehicle. “* * * [T]he automobile exception is based upon the con- cern that a vehicle containing evidence of a crime will be moved and the state will lose the ability to seize such evidence. However, the exception requires that the state demonstrate at least a realistic likelihood that someone will move the vehicle prior to the police obtaining judi- cial authorization to search the automobile. In this case the state only presented a general theory that the vehicle *7 was operable. However, neither the registered owner nor defendant could move the vehicle as both were in custody. The vehicle was unoccupied and otherwise was parked in a manner that did not create a safety hazard. The state pre- sented no other evidence that the vehicle could be moved. Accordingly, the warrantless search of the vehicle is not justified through the automobile exception.” The state filed a motion for reconsideration. At the state’s request, the trial court held a second evidentiary hearing with additional argument. During the hearing, Smith testified that applying for a warrant that is sup - ported by a written affidavit could “[e]asily [take] four or more hours.” Smith also testified about the use of telephonic warrants in Marion County, stating: “My understanding, Marion County Circuit Court system does not do telephonic warrants. And nor have I ever had any training on how to do one, how to apply for one, and what the policies and pro- cedures would be if that ability was there.” Deputy District Attorney Suver also testified about the use of telephonic warrants in Marion County. She explained that the Marion Cоunty District Attorney’s Office trained officers with the instruction that “we don’t do telephonic search warrants in Marion County.” She further testified that every search warrant affidavit is reviewed by the Marion County District Attorney’s Office prior to being submitted for judicial approval, and that the use of telephonic warrants would “cut out that review process.”
At the end of the hearing, the trial judge addressed the issue of telephonic warrants, explaining that he could not understand why the officers and district attorney’s office did not utilize them in general or why they could not have attempted to get one in this case:
“So, I’m a little frustrated that we keep coming back to this issue that, well, the bench likes it done this certain way, so we are not going to do telephonic warrants. Well, it’s the law. And it seems striking to me that 1:30 on a Monday afternoon, with 14 judges in Marion County and four judi- cial officers in addition to that, that there couldn’t be some body that gets a call from an officer, swears the officer in, and says, ‘Tell me what you’ve got.’ * * * Not much different than the testimony that I took from four officers in less than an hour when we did the original [hearing]. And the judge makes a decision.”
In May 2017, the trial court issued a second letter opinion in which it (1) found that the state had failed to prove that there was a risk that the truck would have been moved in the time it would have taken the officers to obtain a war rant, (2) rejected the claim that the county’s circuit court had a policy against telephonic warrants, and (3) concluded that the warrantless search of the truck violated Article I, section 9:
“The court must give more than lip service to the axiom that warrantless searches are per se unreasonable under [Article] I, section 9, and the Fourth Amendment. The ratio- nale for the automobile exception is that evidence of crime may be lost as the automobile drives away from the traffic *8 stop. It takes into account the reality that the evidence is mobile. However, that rationale does not exist under the facts of this case.
“The state presented no evidence that anyone would move the automobile from the scene while the police sought judicial authorization for the search. At the supplemental hearing, thе state went to great lengths to discuss the time consuming process to obtain a written search warrant. * * * “However, the state fails to prove how inconvenient it would have been to obtain judicial authorization in this case. The arrest occurred on a regular working day in the early afternoon. The state fails to address why one of the officers could not avail themselves of an existing process under Oregon law, make a call on a cellphone to the court- house, lay out the facts under oath to a judicial officer and have the judicial officer determine if probable cause existed. The answer seems to be that ‘we just don’t do it that way.’ “Additionally, the state seemed to argue that there is a ‘policy’ from the Marion County Circuit Court bench that judges will not accept telephonic warrant requests. The court rejects that such a policy exists although it acknowl- edges the bench has had discussions about some of the practical problems associated with telephonic warrants. “In the final analysis the state must show that conducting a warrantless search is reasonable. Under the facts in this case no showing has been made. The holding in Brown has never been universally accepted by all judges. At the time of the decision, Justice Linde pointed out how the statute and technology back in 1986 called into question the bright line test in . No one would dispute that the technology today is even much more advanced 30 years later.
“Today, everyone has a cellphone. * * * It is unreason-
able under the circumstances
in this case
that no one even
considered the idea of calling a judge from the site of the
traffic stop to seek judicial authorization. Accordingly, this
court cannot find that the state has proven that the war rantless search of the automobile was reasonable.”
(Emphasis in original.) Accordingly, the trial court granted
defendant’s motion to suppress the evidence discovered as a
result of the warrantless search of the truck.
[2]
a search of defendant’s person. The trial court denied that part of the motion, and
that ruling is not at issue on appeal.
[2]
Defendant’s motion also sought the suppression of evidence obtained during
The state appealed, asserting that the trial court
*9
erred by granting defendant’s motion to suppress. It argued
that “the trial court added a third requirement [for the auto-
mobile exception to apply] not found in case law: that the
state show that it could not have obtained a warrant before
someone tried to move the truck.” In response, defendant
argued that, as a result of this court’s decision in
State v.
Andersen
,
“We do not foreclose the possibility that Brown held out—that changes in technology and communication could result in warrants being drafted, submitted to a magis- trate, and reviewed with sufficient speed that the automo bile exception may no longer be justified in all cases. Nor do we foreclose a showing in an individual case that a war- rant could have been drafted and obtained with sufficient speed to obviate the exigency that underlies the automobile exception.”
Id. at 200-01.
The Court of Appeals determined that, in making
that statement, this court “cast some doubt” on whether
the automobile exception continued to be a
per se
excep-
tion because the statement “appear[ed] to cast the theoret-
ical exigency that underlies the automobile exception as a
rebuttable presumption.”
McCarthy
,
“whatever
Andersen
[
II
] contemplated by a ‘showing in an
individual case that a warrant could have been drafted,’
the possibility of such a showing does not undermine the
presumptively
per se
nature of the automobile exception.
And, in turn, such a possibility does not create any extra
burden upon the state to avail itself of the exception.”
Id
. (quoting
Andersen II
, 361 Or at 201). With that under standing of the state of the law, the Court of Appeals held
that the automobile exception, as articulated in
Brown
,
applied to the search of the truck that defendant had been
driving because the truck was “ ‘mobile at the time it [was]
stopped by police’ ” and “ ‘probable cause exist[ed] for the
search.’ ”
Id.
at 91 (quoting ,
Defendant petitioned for review, which we allowed to address the status of the automobile exception. On review, defendant urges us to overrule ’s per se rule and to hold that, in order for a warrantless seizure or search of a *10 vehicle to be justified by exigent circumstances, there must be an actual exigency at the time of the seizure or search. The state, on the other hand, urges us to retain Brown ’s per se rule, which allows for warrantless seizures and searches of vehicles even when there is no actual exigency. For the reasons we explain below, we overrule Brown ’s per se rule and hold that, when the state seeks to justify a warrantless seizure or search of a vehicle based on exi- gent circumstances, the state must prove that exigent cir- cumstances actually existed at the time of the seizure or search.
II. DISCUSSION
To address the parties’ arguments, we begin, in section A below, with a discussion of Article I, section 9. Then, in section B, we discuss the doctrine of stare decisis and identify considerations relevant to whether we should adhere to ’s per se exigency exception. In sections C, D, and E, we explain why those considerations support revis- iting ’s per se exception and overruling it. Based on that explanation, in section F, we hold that, to justify a war- rantless seizure or search of a vehicle, the state must show that exigent circumstances actually existed at the time of the seizure or search. Finally, in section G, we conclude that the trial court in this case correctly ruled that the state had failed to make that showing, and we affirm its suppression of the evidence obtained during the warrantless search of the truck.
A. Article I, Section 9
The starting point of our analysis is Article I, sec- tion 9, which guarantees individuals the right “to be secure in their persons, houses, papers, and effects, against unrea- sonable search, or seizure.” Article I, seсtion 9, protects both possessory and privacy interests. State v. Barnthouse , 360 Or 403, 413, 380 P3d 952 (2016). For the purposes of Article I, section 9, a seizure of property occurs when there is a significant interference with a person’s possessory inter ests, and a search of property occurs when a person’s pri- vacy interests are invaded. Id.
Generally, to comply with Article I, section 9, a sei-
zure or search must be supported by both probable cause and
a warrant.
Bliss
,
“The constitution requires a warrant so that a dis- interested branch of government—the judicial branch—and not the branch that conducts the search—the executive branch—makes the decision as to whether there is probable cause to search.” Kurokawa-Lasciak II , 351 Or at 186. As this court has explained,
“[t]he time to make the judicial determination whether there is probable cause for a search or a seizure, if time per- mits, is before the individual’s privacy is invaded. A later adjudication upon a motion to suppress evidence, although necessary, does not undo the invasion, does not help per- *11 sons who are cleared and never prosecuted, and colors the perception of ‘probable cause’ by what the search in fact revealed.”
State v. Lowry
,
Under Article I, section 9, warrantless seizures and
searches “are
per se
unreasonable unless they fall within
one of the few specifically established and limited excep tions to the warrant requirement.”
Bliss
,
One exception to the warrant requirement is the
“exigent circumstances” exception. Under that exception,
police may conduct a warrantless seizure or search if they
have probable cause and exigent circumstances exist.
State
v. Ritz
, 361 Or 781, 791, 399 P3d 421 (2017). Exigent cir cumstances are circumstances “where prompt responsive
action by police officers is demanded.”
State v. Davis
, 295
Or 227, 237,
Exigent circumstances justifying a warrantless
search “include situations where the delay caused by obtain-
ing a warrant would likely lead to the loss of evidence.”
Ritz
,
Generally, whether exigent circumstances exist is determined on a case-by-case basis. Andersen II , 361 Or at 202 (Walters, J., concurring) (collecting cases). That means law enforcement officers in the field must make their own assessments regarding whether circumstances justify 143 proceeding without a warrant. If later challenged through a motion to suppress, those assessments are reviewed by a court, and the state bears the burden of proving that the circumstances were actually exigent.
This court announced the “Oregon automobile
exception” in
Brown
in 1986. 301 Or at 273-74. The auto-
mobile exception is a “subset of the exigent circumstances
exception.”
State v. Meharry
,
B. The Doctrine of Stare Decisis
Under the doctrine of
stare decisis
, this court
assumes that its fully considered prior cases are correctly
decided.
State v. Ciancanelli
,
This court has “emphasized the ‘undeniable impor-
tance of stability in legal rules and decisions.’ ”
Farmers Ins.
Co.
,
This case involves a question of state constitutional
law, and, in cases involving such questions, “the value of
stability that is served by adhering to precedent may be
outweighed by the need to correct past errors” because this
court “ ‘is the body with the ultimate responsibility for con-
struing our constitution, and, if we err, no other reviewing
body can remedy that error.’ ”
Couey
,
“The answer to the question whether a case should
be overruled cannot be reduced to the mechanical applica-
tion of a formula but requires instead an exercise of judg-
ment that takes all appropriate factors into consideration.”
Horton
,
As we explain in the following sections, each of
those three factors supports reconsideration of this court’s
decision in . In section C, we review . We first
explain why the court’s choice to create a
per se
exigency
exception was not well founded. Although the case pre-
sented a state constitutional issue, this court imported fed-
eral constitutional law with little explanation of why doing
so was appropriate despite the differences between state
and federal constitutional protections against unreason-
able searches and seizures. In addition, the court’s analysis
of the state constitutional rights at issue was unclear at
best. We also explain that the court believed that the exception would be temporary. The premise underlying the
per se
exception is that the mobility of vehicles creates a
*14
risk that they will become inaccessible in the time it takes
to get a warrant, and the court expected that advances in
ing prior decision that was internally inconsistent and had created confusion
Yancy v. Shatzer
explaining why it was appropriate to do so to resolve a state constitutional issue);
prior decisions that imported federal constitutional analysis without adequately
,
In section D, we review the automobile exception cases this court has decided since Brown . In Brown , this court created a exigency exception because it believed that doing so would provide clarity in the law regarding when officers can seize and search vehicles without war rants. Subsequent cases show, however, that Brown ’s per se rule has not created the clarity that the court hoped it would. That is in part because the rule is ambiguously phrased. It is also because the rule is disconnected from its rationale: The rule is based on the asserted risk that contraband or evidence will be lost, but it applies even when there is no such risk. Because there is little logic to the rule, it is difficult to apply and has not led to clarity or stabil ity in the law. In addition, Brown ’s per se exigency excep- tion is inconsistent with subsequently decided cases in two ways. First, it is inconsistent with this court’s recent decision in Andersen II , which altered the per se nature of the exception (although the extent of that alteration is unclear because, after this court decided Andersen II , it decided Bliss , which described as having created a per se rule and did not mention that Andersen II had altered it). Second, it is inconsistent with recent cases in which this court has made clear that the scope of an excep- tion to the warrant requirement must be limited by the purposes of the exception. Consequently, in section D, we conclude that the сases this court has decided since weigh in favor of revisiting Brown ’s per se rule because they show that the rule has not created the clarity that *15 the court hoped it would, that the rule is inconsistent with Andersen II and unclear after Bliss , and that the rule is at odds with this court’s recent cases—decided since Brown and Andersen II —holding that a warrant exception must be applied consistently with the purposes animating the exception.
In section E, we discuss technological and legisla- tive changes since Brown that weigh in favor of reconsidering its per se exigency exception. As mentioned, in Brown this court anticipated that advances in technology would make it possible to reduce the time it takes to get a warrant and, as a result, reduce the need to seize and search vehicles without warrants. Brown was decided in 1986, and technology has changed substantially since then. The law governing war- rants has also changed: The legislature has regularly updated the statute governing warrants to expedite the warrant pro- cess for telephonic and electronic warrants. As a result, it is now possible, as Brown anticipated, for officers to apply for and receive warrants in a matter of minutes, not hours. Consequently, in section E, we conclude that technological and legislative changes relevant to warrant processing weigh in favor of revisiting Brown ’s exigency exception.
Ultimately, we conclude that there are numerous reasons to reconsider Brown ’s per se exigency exception. Some have existed since itself; others have accumu- lated in the years since ; and still others have arisen as a result of our most recent automobile exception cases and other warrant exception cases. We further conclude that, in light of those same reasons, that Brown should be overruled: the per se exception was not well founded, it has not created clarity, it is inconsistent with recent cases, it was intended to be temporary, it is no longer justified given changes in technology and the processes for obtaining elec- tronic warrants, and it can diminish the incentives for offi cers to apply for warrants and for jurisdictions to improve warrant processes.
Therefore, in section F, we hold that there is no lon-
ger a special exigency rule for vehicles. Instead, vehicles are
subject to the general “exigent circumstances” exception to
the warrant requirement that applies to other types of prop-
erty. In order to justify a warrantless seizure or search based
on exigent circumstances, the state must prove that there
was a situation requiring law enforcement “to act swiftly to
prevent danger to life or serious damage to property, or to
forestall a suspect’s escape or the destruction of evidence.”
Stevens
,
C. State v. Brown
In Brown , the defendant’s girlfriend told two offi cers that the defendant had assaulted her and stolen her property. She also told them that the defendant always car- ried a handgun in a “black purse” either on his person or in the trunk of his car. The next day, the officers stopped the defendant while he was driving his car. The officers told the defendant that the reason for the stop was to arrest him for assault and theft, and they also told him about his girl- friend’s statement regarding the handgun. After the defen- dant declined to consent to a search of his car, the officers searched the car without a warrant. In the trunk, they found a closed black leather bag that contained a handgun.
One officer later testified that the defendant had been handcuffed during the entire search. The other offi cer could not remember when, or if, the defendant had been handcuffed, but he testified that the officers had put the defendant in their patrol car before they searched the trunk.
Based on the discovery of the handgun, the defen- dant was charged with two weapons offenses. The trial court ruled that the warrantless search of the defendant’s car did not violate Article I, section 9, but the Court of Appeals reversed, and this court allowed review.
On review, the court stated that the case presented
“the heretofore unanswered question: Is there “an ‘automo-
bile exception’ to the warrant requirement of Article I, sec-
tion 9, of the Oregon Constitution?”
Brown
,
The court quoted
Carroll v. United States
, 267 US
132, 45 S Ct 280, 69 L Ed 543 (1925), for the proposition
that there is a difference between searches of stationary
structures and searches of vehicles because vehicles “ ‘can
be quickly moved out of the locality or jurisdiction in which
the warrant must be sought.’ ” ,
From there, the court went on to reason that “if police have probable cause to believe that a person’s automobile, which is mobile when stopped by the police, contains contraband or crime evidence, the privacy rights of our citizens are subjected to no greater governmental intru- sion if the police are authorized to conduct an immediate on-the-scene search of the vehicle than to seize the vehicle and hold it until a warrant is obtained . The police ticket to admission into a stopped mobile vehicle is probable cause.” Id. at 276 (emphasis added). Thus, it appears that the court weighed the intrusiveness of an immediate warrantless search against the intrusiveness of a later warranted search. In other words, it appears that the court assumed that offi cers seeking to search vehicles will always have probable cause and, therefore, warrant applications will always be granted, so there is no harm in allowing officers to conduct immediate warrantless searches.
The court repeated that reasoning later in the opin- ion, stating:
“[F]or constitutional purposes no difference exists between, on the one hand, seizing and holding a car before present- ing the probable cause issue to a magistrate and, on the other hand, carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Oregon Constitution. ”
Id. at 278 (emphasis added). That statement also indicates that, when creating its automobile exception, the court assumed away the very risk that the warrant requirement is intended to protect against: the risk that an officer will not actually have probable cause to search.
Alternatively, it may be that the court reasoned that, given the length of time that it generally took to obtain a warrant, there was no constitutional difference between immediately searching a vehicle, on the one hand, and detaining the vehicle for the duration of the warrant pro- cess, on the other hand. In other words, it may be that the court reasoned that an immediate search is no more intru- sive than a lengthy seizure.
Ultimately, the court’s reasoning regarding the intrusiveness of the government actions it was comparing is unclear. What is clear, however, is that the court chose to create an exigent circumstances exception based on the risk that a vehicle will be moved and, as a result, evidence will be lost. What is also clear is that the court chose not to limit the exception to circumstances where there is an actual risk that a vehicle will be moved. Instead, in order to provide clarity to law enforcement officers, the court chose to create a categorical rule based on whether a vehicle was “mobile when stopped by the police.” at 276-78. The court explained:
“We are convinced that adoption of a ‘ exigency rule’ is a sound approach which provides the clearest guidelines *18 for police in conducting automobile searches. Exigencies should not be determined on a case-by-case basis. Police need clear guidelines by which they can gauge and regu- late 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. Consequently, the court ruled that an officer may conduct a warrantless search of a car if “(1) the car was mobile at the time it was stopped by the police; and (2) the police had probable cause to believe that the сar con - tained contraband or crime evidence.” Id. at 278. The court further ruled that, during such a search, an officer may look in any place “ ‘in which there is probable cause to believe’ ” that the contraband or evidence “ ‘may be found.’ ” Id. at 279 (quoting Ross , 456 US at 824). Applying those rules, the court held that the warrantless search of the defendant’s car and black leather bag did not violate Article I, section 9. Id.
Notably, the court did not intend the automobile exception to be permanent. The exception was based on the length of time it generally took to get warrants, which the court expected would be reduced in the “near future” because of advances in technology:
“In this modern day of electronics and computers, we foresee a time in the near future when the warrant require- ment of the state and federal constitutions can be fulfilled virtually without exception. All that would be needed in this state would be a central facility with magistrates on duty and available 24 hours a day. All police in the state could call in by telephone or other electronic device to the central facility where the facts, given under oath, consti- tuting the purported probable cause for search and seizure would be recorded. The magistrates would evaluate those facts and, if deemed sufficient to justify a search and sei - zure, the magistrate would immediately issue an electronic warrant authorizing the officer on the scene to proceed. The warrant could either be retained in the central facility or electronically recorded in any city or county in the state. Thus, the desired goal of having a neutral magistrate could be achieved within minutes without the present invasion of the rights of a citizen created by the delay under our current cumbersome procedure and yet would fully protect the rights of the citizen from warrantless searches. ”
301 Or at 278 n 6 (emphasis added). Thus, the court envi sioned a process in which officers would call magistrates who would determine whether the officers had probable cause to search and, if the officers did, the magistrates would imme diately issue electronic warrants. was decided by a six-person court, the same
day as State v. Bennett , 301 Or 299, 721 P2d 1375 (1986), which also involved the warrantless seizure and search of a vehicle. In each case, four justices joined in the majority opinion. In Bennett , Chief Justice Peterson confessed that he was troubled by the majority’s rule because it deviated from the “basic constitutional rule” that, “[i]f it is possible to get a warrant,” officers should “get a warrant.” 301 Or at *19 307 (Peterson, C. J., concurring). But, he explained, search and seizure law at the time was unclear; the court had recently decided several cases relying on Supreme Court cases that the Supreme Court later overruled. Id. at 305. Believing that the majority’s rule was clear and workable, Chief Justice Peterson joined in the majority with the aim of “putting the question to rest, to the end that everyone will know and understand what is the rule.” Id. at 308.
Justice Linde dissented in , joined by Justice Lent. The dissent argued that the majority’s rule was based on a false premise: “that the mobility of a motor vehicle does not allow time to obtain a warrant to search it.” , 301 Or at 291 (Linde, J., dissenting). According to the dissent,
“[a]s a statement about ‘exigency,’ the proposition that it always, or generally, is impossible to obtain a warrant to search a vehicle after it has been stopped in transit is sim- ply contrary to fact, especially in cases where the occupants have been placed in custody outside the vehicle.” Id. at 292. The dissent argued that whether there is a risk that evidence will be lost if police are required to obtain a warrant is a question that should be resolved on a case-by- case basis: “Exigencies are emergencies, circumstances that require urgent action; of course they arise case by case.” Id. In addition, the dissent pointed out that the majority’s justi- fication for it its rule did not support the breadth of the rule. According to the dissent, the majority’s desire to rest its rule “on the exception for exigent circumstances and also to give police officers general permission for warrantless searches of automobiles irrespective of actual exigency leads only to an unresolved contradiction.” Id.
The dissent also took issue with the majority’s con- clusion that conducting an immediate warrantless search of a vehicle is no more intrusivе than holding a vehicle while a warrant is requested. at 294-95. The dissent explained:
“The faulty assumption is that the court must choose between the ‘intrusiveness’ of an immediate search and of a temporary seizure to await a warrant and make that choice as a categorical matter of law. That is not so. The obvious, and correct, alternative is that the choice belongs to the person whose constitutional interests are at stake. An officer reasonably believing that he has probable cause *20 to search an automobile trunk in the presence of the owner or driver can offer the person an informed choice between consenting to an immediate search or having the automo- bile held for the time necessary to obtain a warrant. “This is even more obviously true of bags or other closed containers. The person, not the officer, is the one to decide whether to insist on the right to have the supposed proba- ble cause tested by a magistrate and to accept the inconve- nience of the necessary seizure. There simply is no basis for this court or any court to make such a categorical choice for all owners of automobile trunks or closed containers found in automobiles as a class. If a person insists on the required warrant, there well may be exigent circumstances for a sei- zure when there are not for searching a container after it has been seized.”
Id. (footnote omitted).
In addition, the dissent cautioned that the rule would not bring clarity. Id. at 291-92. And, although the dis- sent appreciated that the majority’s rule was a “temporary accommodation” and “open to future reconsideration” in the event of changes in the warrant process, the dissent thought that the state would make those desired changes sooner if the court enforced the warrant requirement instead of rec- ognizing a new exception to it. at 280, 293-94.
What our review of
Brown
shows is that, although
the case concerned Article I, section 9, the court relied on
cases construing the Fourth Amendment. That is significant
because this court has a duty to analyze state constitutional
provisions independently from similar federal ones.
State v.
Caraher
,
As mentioned, seizures and searches are separate events, requiring separate justifications. Tanner , 304 Or at 316. Thus, in , the court should have first analyzed whether seizure of the defendant’s car was justified, and, if it was, then the court should have analyzed whether the *21 search of the car was justified. If the court had undertaken that two-step analysis, it would have had to determine whether, after the seizure, any exigency justified the search. But the court did not undertake that analysis. Instead, it relied on federal cases, which, as we will explain, do not pro- vide a sound foundation for ’s per se exigency excep- tion to the state constitution’s warrant requirement. One of those cases, Carroll , did not establish a per se exigency exception, and the other, Ross , establishes a per se exigency exception for seizures, but not searches.
In , this court stated that, in announcing its automobile exception, it was aligning itself “with the traditional federal ‘automobile exception’ to the Fourth Amendment warrant requirement as set forth in the semi- nal case of Carroll v. United States * * * and its progeny.” 301 Or at 274. In Carroll , the Supreme Court did distinguish between structures and vehicles, as the Brown court noted. Specifically, the Court stated:
“[T]he guaranty of freedom from unreasonable searches
and seizures by the Fourth Amendment has been con-
strued, practically since the beginning of the Government,
as recognizing a necessary difference between a search
of a store, dwelling house or other structure in respect of
which a proper official wаrrant readily may be obtained,
and a search of a ship, motor boat, wagon or automobile,
for contraband goods,
where it is not practicable to secure a
warrant because the vehicle can be quickly moved out of the
locality or jurisdiction in which the warrant must be sought
.”
“ In cases where the securing of a warrant is reasonably prac- ticable, it must be used , and when properly supported by affidavit and issued after judicial approval protects the seizing officer against a suit for damages. In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause.” at 156 (emphasis added). Thus, Carroll recognized a true
exigency exception for the seizure of vehicles, that is, an exception that applies only when a seizure would be “impos- sible except without a warrant.” Id.
In later cases, including
Chambers v. Maroney
,
After Chambers , the Court, in Ross , addressed the permissible scope of a search conducted pursuant to the federal automobile exception. The Court recognized that, if officers seize a vehicle, the seizure can eliminate any exi gency that would justify a warrantless search. As the court explained, “although failure to seize a moving automobile believed to contain contraband might deprive officers of the illicit goods, once a vehicle has been stopped the exigency does not neсessarily justify a warrantless search.” Ross , 456 US at 807 n 9 (emphasis in original). As Justice Marshall observed, where law enforcement can seize a vehicle such that it is “in the exclusive control of the authorities”—for example, after its occupants have been arrested—a war- rantless search is justified not on the basis of any exigency, but on another basis: the reduced expectation of privacy individuals have in their vehicles. Id. at 830 (Marshall, J., dissenting).
To summarize, in Brown , this court did not engage in an independent analysis of Article I, section 9. Instead, it relied on federal Fourth Amendment law to create a per se exigency exception that allows not only for warrantless sei- zures of vehicles, but also for warrantless searches of seized vehicles. And it did so even though Carroll did not estab- lish a per se exigency exception, and Ross does not support a per se exigency exception for searches of seized vehicles.
Moreover, as described above, the court’s reason-
ing is unclear. The court either reasoned that an immediate
warrantless search is no more intrusive than a later war-
ranted search, in which case it failed to recognize the pur-
pose of the warrant requirement, which is to protect against
searches that are not supported by probable cause. Or it
reasoned that an immediate warrantless search is no more
intrusive than a prolonged seizure, but, as Justice Linde
explained, that reasoning was unsound. Thus, itself
provides several bases for reconsidering its exigency
exception: the court did not utilize its usual framework for
analyzing a state constitutional question, it imported fed-
eral law without adequate explanation, and its reasoning is
unclear at best.
See Farmers Ins. Co.
,
To be sure, several of those aspects of were apparent at the time the case was decided and were men- tioned by the dissent. But it is still appropriate to consider them here because, when determining whether to adhere to precedent this court considers, among other things, whether a case was inadequately considered or wrong when it was decided.
In addition, when it comes to the doctrine of stare decisis , Brown is a unique case. The court did not intend its per se exigency exception to be permanent. It expected that, in the “near future,” technological changes would occur and reduce the amount of time that it took to process a war- rant application and, as a result, there would be no basis for assuming as a general matter that obtaining a warrant would create a risk that a vehicle would be moved before it could be seized or searched. Brown , 301 Or at 278 n 6. Brown ’s per se exigency exception was intended as a tem- porary accommodation to provide clarity to officers. But, as we explain in the following section, it has not provided that clarity, and it is now in conflict with other cases—two addi tional reasons to reconsider Brown ’s per se rule.
D. Post- Brown Cases
In Brown , the court announced its rule that an officer may conduct a warrantless search of a car if “(1) the car was mobile at the time it was stopped by the police; and (2) the police had probable cause to believe that the car contained contraband or crime evidence.” 301 Or at 278. Although the rule was intended to create clarity in the law, post- Brown cases show that there has been confusion about the basic elements of the rule, including about what it means for a vehicle to be mobile, whether the police need to bring a moving vehicle to a stop, and at what point police need to have probable cause.
1. State v. Kock
In , the police stopped the defendant’s car
when the defendant was driving it. Consequently, the court
did not address “whether a warrant for the search and sei-
zure of a parked or impounded automobile is required.”
Id
. at 277. But, three months after , the court
addressed the warrantless search of a parked car.
State v.
Kock
,
In Kock , two officers conducting surveillance in the parking lot of the store where the defendant worked saw the defendant come to work and enter the store. Approximately two hours later, the officers saw the defendant leave the store, place a package in his car, and return to the store. To determine what the defendant had put in his car, the officers searched the car without a warrant and seized the package, which contained merchandise from the store. The state charged the defendant with theft, and the defendant moved to supрress the results of the search.
On review, this court assumed for the sake of argu- ment that the officers had probable cause to search the car and, therefore, the court focused on whether the search was lawful under an exception to the warrant requirement. Id. 32-33. As relevant here, the court held that the search was not lawful under the automobile exception. Id. at 33. The court explained that it was adhering to the rule it had announced in :
“Although logically it can be argued that the rationale of the seminal case of Carroll v. United States and its progeny, including United States v. Ross , would justify extending the automobile exception to automobiles that are capable of mobility, we elect to draw the so-called bright line of just where we left it in that case: * * * [A]utomobiles 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.” Id. at 32-33 (citations omitted). The court further explained that Brown established the “outer limit for warrantless automobile searches without other exigent circumstances.” Id. at 33. Therefore, the court ruled:
“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 autho- rized by a warrant issued by a magistrate or, alternatively, the prosecution must demonstrate that exigent circum- stances other than the potential mobility of the automobile exist.” Applying that rule, the court held that, because the state
had “failed to demonstrate any individualized exigent cir- cumstances,” the warrantless search of the defendant’s car violated Article I, section 9. Id. at 33-34.
In sum, the automobile exception did not apply in Kock because the defendant’s car was parked and unoccupied when the officers “first encountered it in connection with the investigation of a crime”—that is, when the officers first developed probable cause. Thus, Kock indicates that officers “encounter” a car in connection with a crime when they have probable cause to seize or search it, not simply when they see it. It also indicates that the exceрtion does not apply sim- ply because a car was recently driven and the person who drove it is still nearby, and, relatedly, that “mobile” means “moving,” not “operable or capable of moving.”
2. State v. Meharry
Following this court’s decision in Kock , the Court of Appeals held that the automobile exception did not apply to the warrantless search of a van that was parked when an officer developed probable cause to search it. State v. Meharry , 201 Or App 609, 617-18, 120 P3d 520 (2005) ( Meharry I ), rev’d , 342 Or 173 (2006). In Meharry , a local fire chief saw a van being driven erratically and reported his observations to a police officer, who spotted the van and followed it in his patrol car, without using his siren or over- *25 head lights. The officer saw the defendant drive the van into the parking lot of a convenience store, park, and go into the store. The officer parked his patrol car behind the van and went into the store, where he questioned the defendant and developed probable cause to believe that the defendant had been driving under the influence of intoxicants. The defen dant agreed to take field sobriety tests outside the store, and, after she failed the tests, the officer arrested her. After finding a syringe in the defendant’s pocket, the officer then conducted a warrantless search of the van. Based in part on evidence found during that search, the state charged the defendant with driving under the influence of intoxicants and with several drug crimes.
The defendant moved to suppress the evidence
found in the warrantless search of the van, and the trial
court granted the motion. The Court of Appeals affirmed,
relying on
Kock
and holding that the van was not mobile
when the officer first encountered it.
Meharry I
, 201 Or App
at 617-18. Quoting an earlier case in which it had addressed
the scope of the automobile exception, the court stated that,
“ ‘although the meaning and contours of “encounter” as used
in the case law are somewhat amorphous, it is clear that
merely observing a vehicle from a distance without any show
or exercise of police authority is not an “encounter” for pur-
poses of the automobile exception.’ ”
Id.
at 618 (quoting
State
v. Mosely
,
On reviеw, this court reversed the Court of Appeals’
decision.
State v. Meharry
,
Thus, although in the court appeared to use
the term “mobile” to mean “moving,”
Justice Durham concurred in the court’s decision, noting that the defendant had not argued that the court had erred in . Id. at 182 (Durham, J., concurring). He *26 wrote separately to raise two concerns about . One concern was that “understated the constitutional pol- icy requiring a judicial examination of the particular facts to determine whether a particular search is reasonable.” Id. at 181. In Justice Durham’s view, “The one-size-fits-all rule of Brown for searching a citizen’s property is difficult to harmonize with the state constitutional prohibition on searches that are not reasonable under all the particular circumstances.” Id. at 181-82. The other concern was that “the Brown court’s decision oversold the notion that it would lead to certainty,” because “whether a vehicle is ‘mobile,’ or sufficiently mobile under the particular facts to permit a warrantless search, can change with every stop.” at 181 (emphasis in original).
3. State v. Kurokawa-Lasciak
Unsurprisingly, after
Meharry II
, the Court of
Appeals held that the automobile exception applied to a vehi-
cle becаuse the vehicle was capable of moving at the time an
officer developed probable cause.
State v. Kurokawa-Lasciak
,
The trooper questioned and arrested the defendant, who refused to consent to a search of the van. The trooper then questioned the defendant’s girlfriend, Campbell, ask- ing, among other things, whether there was any marijuana in the van. Campbell answered that there was a “little bit,” and that it was “probably under [an ounce], but could be over a little bit.” Ultimately the trooper obtained Campbell’s con- sent to a search of the van and searched it, finding several ounces of marijuana and hashish, electronic gram scales, and approximately $48,000 in cash.
The defendant moved to suppress the evidence
obtained through the search, and the trial court granted
his motion, ruling that Campbell’s consent was involuntary
and the automobile exception did not apply because the
trooper did not have probable cause to search the van until
Campbell admitted that there were drugs inside it and, at
that time, the van was not mobile. The Court of Appeals
reversed on the ground that the van was mobile.
Kurokawa-
Lasciak I
,
3. State v. Andersen
In this court’s next automobile exception case,
Andersen II
, 361 Or 187, the issue related to what consti-
tutes an “encounter.” In that case, two officers were wait -
ing for the defendant’s car to arrive at a parking lot to
complete a drug sale arranged through a confidential infor -
mant. The first officer overheard a cellphone conversation
between the defendant’s passenger and the informant, in
which the passenger told the informant that the defendant’s
But, in
State v. Coleman
,
On review, this court held that, although the offi cers did not see the defendant’s car drive into the parking lot, the running account of the car’s movement provided by the defendant’s passenger provided them with confirmation that the car was mobile, despite the fact that it was parked when officers first saw it in the parking lot. Andersen II , 361 Or at 198. The court therefore concluded that the car was mobile when the police first encountered it in connection with a crime. Id.
In Andersen II , the defendant had argued that, if this court concluded that the search of his car came within the automobile exception, as the court’s cases had described it, then the court should overrule the exception. The court declined to do so, and it wrote to address the defendant’s argument that the court “should overrule Brown because warrants can now be obtained within minutes.” Id. at 199. The court questioned the defendant’s premise, observ- ing that although technological advances can reduce the amount of time required for communications during the warrant process, other aspects of the process—which can include the completion of a written warrant application by an officer and the review of that application by a district attorney—can take substantial amounts of time. Id. at 200.
But the court acknowledged that there may be cir-
cumstances where the exception will no longer apply:
“We do not foreclose the possibility that held оut—
that changes in technology and communication could
result in warrants being drafted, submitted to a magis-
trate, and reviewed with sufficient speed that the automo bile exception may no longer be justified in all cases. Nor
do we foreclose a showing in an individual case that a war-
rant could have been drafted and obtained with sufficient
speed to obviate the exigency that underlies the automobile
exception.
See State v. Machuca
,
In a concurrence, then-Justice Walters highlighted the significance of that paragraph, stating that in it the majority recognized “that the exception created in [ ] is and must be aligned with other Oregon exigency exceptions to the warrant requirement.” Id. at 202 (Walters, J., concur- ring). [8] Justice Walters explained that this court “has long held * * * that whether exigent circumstances exist must be determined based on the particular facts presented, and not on a categorical basis or pursuant to a per se rule.” She further explained:
*30
“In permitting that same case-by-case analysis when
the state relies on the automobile exception to justify a
warrantless search, the majority assures that, unless exi-
gent circumstances are actually present, a neutral magis-
trate, and not the individual who performs the search, will
determine whether there is probable cause to search. That
mode of analysis is essential to protect Oregonians’ right
to privacy. Any other rule would ‘improperly ignore the
current and future technological developments in warrant
procedures,’ and ‘diminish the incentive for jurisdictions
“to pursue progressive approaches to warrant acquisition
that preserve the protections afforded by the warrant while
Bliss
.
[8]
Andersen II
Justice Walters became Chief Justice in 2018, after , but before
meeting the legitimate interests of law enforcement.” ’
McNeely
, [
Id.
Andersen II is significant because it altered the sig - nature aspect of the Brown rule. In Brown , the court held that nothing “in addition to the mobility of an automobile at the time it is lawfully stopped is required to create exi- gency under the automobile exception.” 301 Or at 277. To illustrate, the court stated:
“[I]t does not matter whether the passenger could have taken over the custody of the car * * *, whether the police had adequate personnel to back-up the arrest, whether a tow truck was available, whether a magistrate was avail- able by telephone or otherwise , or whether a threatening crowd gathered, etc.” at 278 (emphasis added; footnote omitted). Thus, under , whether an exigency exists does not depend on case-
specific facts, other than whether the vehicle at issue was mobile when it was stopped and whether probable cause exists. It “does not matter” whether, for example, a warrant could have been obtained. Id. But, under Andersen II , it does.
4. State v. Bliss
The effect of
Andersen II
is unclear, however,
because of this court’s most recent automobile exception
case,
Bliss
,
Because the defendant’s argument was that the automobile exception did not apply to stops like his at all, the court did not addrеss whether, as it had just stated in Andersen II , there could be circumstances in which a war- rant could be obtained quickly enough to obviate the exi- gency underlying the exception. But, in rejecting the defen- dant’s argument, the court stated that
“much of the rationale of was to provide law enforce-
ment with ‘simple guidelines’ and a ‘
per se
’ rule for all high-
way stops, rather than a ‘complex set of rules dependent on
particular facts regarding the time, location and manner’
of the stop. * * * Defendant’s proposed distinction between
stops based on traffic violations and stops based on crimi nal activity would be complex in practice and undercut the
clarity
Brown
sought to establish.”
Bliss
,
Chief Justice Walters dissented in Bliss and was joined by Justice Nakamoto. Noting that, in Kurokawa- Lasciak II , this court had stated 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 unoccupied at the time that the police encoun- ter it in connection with a crime ,’ ” the dissent would have held that the exception does not apply to vehicles that were mobile when stopped for a traffic violation, but were not mobile when the police later developed probable cause that a defendant had committed a crime. Bliss , 363 Or at 439 (Walters, C. J., dissenting) (quoting Kurokawa-Lasciak II , 351 Or at 181) (emphasis added). Therefore, the dissent would have concluded that the officers were not permitted to search the defendant’s vehicle based on an assumed exi- gency; instead, they had to either obtain a warrant or rely on another exception to the warrant requirement. at 439.
5. Summary of post- Brown automobile exception cases What our review of cases from Brown to Bliss shows is that the automobile exception has created confusion and is currently unclear. The purpose of the exception is to enable officers to respond to the risk that contraband or evidence will be lost because a vehicle can be moved out of the juris- diction in which a warrant must be sought. But the scope of the exception exceeds its purpose. Although it is an exi- gent circumstances еxception, it applies when there are no exigent circumstances. That is, it applies when there is no *32 actual risk that a vehicle will be moved and that contraband or evidence will be lost.
Of course, that is because the exception is a per se exception, intended to provide clarity for law enforcement officers. So, instead of focusing on whether there is a risk that a vehicle will be moved, officers (and lawyers and judges) must focus on the rule as this court has phrased it. Thus, there is a disconnect between the rationale for the rule and the rule itself, and that can be confusing. See, e.g. , Kurokawa-Lasciak II , 351 Or at 193 (acknowledging the “logic of the state’s position” that it is just as likely that a person in control of an operable car that was parked when the police encountered it will drive away with evidence or contraband as will a person who was in control of an oper- able car that was moving when the police encountered it); Kock , 302 Or at 32 (recognizing that it could be logically argued that the exception should be extended to vehicles that are capable of mobility).
Moreover, the phrasing of the rule has created con-
fusion. In
Brown
, this court held that an officer may conduct
a warrantless search of a car if “(1) the car was mobile at
the time it was stopped by the police; and (2) the police had
probable cause to believe that the car contained contraband
or crime evidence.”
In addition, Brown is in conflict with other, more recent сases. Most notably, it is in conflict with Andersen II , as described above. That conflict is another reason to revisit Brown ’s per se exigency exception and clarify its current status.
The state argues that we should adhere to ’s per se rule because the defendant in Andersen II made some of the arguments that defendant makes in this case and the court in Andersen II declined to overrule ’s per se rule. But Andersen II did not affirm that rule; it altered it. Consequently, Andersen II does not support the state’s claim that we should adhere to Brown.
The state also relies on Bliss , but as discussed, the defendant in Bliss did not raise the issue of whether the automobile exception is a rule. The defendant’s “sole *33 argument” was that the exception “does not apply when the initial stop is for a traffic violation, rather than for a crim inal offense.” Bliss , 363 Or at 430. The defendant did not argue that the exception requires an actual exigency, as defendant does here. Thus, Bliss does not resolve the ques- tion in this case. Instead, in light of Andersen II , it raises questions about the current status of the exception.
6.
Other post
-Brown
warrant exception cases
In addition to the automobile exception cases just
described, other cases decided since
Brown
(and since
Andersen II
) support reconsideration of
Brown
’s
per se
exigency exception. Those cases concern other exceptions to
the Article I, section 9, warrant requirement, and they make
clear that a warrant exception “must be applied consistently
with the purposes animating the exception.”
Fulmer
, 366
Or at 233-34. In other words, “the contours of the particu-
lar exception are circumscribed by the justification for that
exception.”
Id.
at 234;
see also State v. Arreola-Botello
, 365
Or 695, 712,
Moreover, since , both this court and the Supreme Court have recognized problems with per se exceptions to warrant requirements. In McNeely , the Court rejected an argument that the natural metabolization of alcohol in the bloodstream establishes a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all cases involving driving under the influence of alcohol. 569 US at 165.
In doing so, the Court acknowledged that “some cir-
cumstances will make obtaining a warrant impractical such
that the dissipation of alcohol from the bloodstream will
support an exigency justifying a properly сonducted war-
rantless blood test,” but it determined that each case should
be decided on its own facts, and that a
per se
rule would
reflect “ ‘considerable overgeneralization.’ ”
Id.
at 153 (quot-
ing
Richards v. Wisconsin
,
Thus, even in circumstances where the sought-after evidence is actually dissipating, the Court declined to create a per se rule. Such a rule would be overbroad, could discour- age the development and utilization of improvements to the warrant process, and was not necessary.
Following
McNeely
, this court has also expressed
concern about creating broad exceptions to the warrant
requirement based on generalizations about the length
of time it takes to get a warrant. For example, in
State v.
Fessenden/Dicke
,
“The fact that an exception to the Article, I, section 9, warrant requirement is at issue is an additional rea- son for caution. Since 1986, this court has been aware that, ‘in this modern day of electronics and computers,’ a day will come when the warrant requirement can be ful- filled expeditiously. * * * , 301 Or [at] 278 n 6 * * *; see also * * * Kurokawa-Lasciak [ II ], 351 Or [at] 188 * * * (discussing desirability of ‘a neutral magistrate’s evalua- tion of probable cause’ and anticipating ‘advances in tech- nology permit[ting] quick and efficient electronic issuance of warrants’). In many places and circumstances, obtain ing a warrant no longer entails undue delay or prevents timely police action. See Riley v. California , [573] US [373, 401], 134 S Ct 2473, 189 L Ed 2d 430 (2014) (discussing ‘[r]ecent technological advances’ that have ‘made the pro- cess of obtaining a warrant itself more efficient’); * * * McNeely , [569] US [at 173] (Roberts, C. J., concurring in part and dissenting in part) (describing jurisdiction where warrants may be obtained electronically in as little as 15 minutes). Given the perplexing questions presented and the current state of technology, we are hesitant to extend or broadly apply exceptions to the warrant requirement with- out firm constitutional basis.” at 771. Not only can a exception diminish the incen- *35 tive for improving warrant processes, but it can also under- mine the warrant requirement by allowing officers to plan to conduct warrantless searches even when they could obtain warrants. State v. Colman-Pinning , 302 Or App 383, 461 P3d 994 (2020), illustrates that possibility. In that case, offi - cers working with an informant arranged a drug buy and “planned to rely on the automobile exception announced in Brown to stop defendant and conduct a warrantless search of [his] pickup while he was on his way to the arranged drug buy.” Id. at 384-85. The officers planned the stop in advance, which one of the officers described as a “very com - mon” practice. Id. at 386. The defendant was charged with drug crimes based on evidence found during the stop, and he moved to suppress the evidence on the ground that the warrant search of the pickup violated Article I, section 9. The trial court denied the motion, and the Court of Appeals affirmed, explaining that Brown ’s per se rule allows offi - cers to plan to stop vehicles in order to conduct warrantless searches. Id. at 393-94. The court recognized
“the dissonance between a planned operation designed to ensnare a suspect at a particular time and place in order to take advantage of the automobile exception, like the one here, and the fact that the automobile exception to the warrant requirement is an exigent circumstances exception. That is, we typically view an exigency as an unforeseen circumstance that requires urgent action , and, the orchestrated method used by law enforcеment in this case—an apparently regular practice in Lincoln County— does not have those qualities, which are ordinarily present in the type of traffic stop to which the automobile excep - tion is intended to apply. Nevertheless, as we explained in McCarthy , the Supreme Court has made clear the per se nature of the automobile exception, and we consequently cannot say that the police officers in this case were unjus tified in planning the operation and relying on the automo bile exception in the manner that they did, without having an obligation to seek a warrant.” at 394 (emphases in original). In sum, cases decided since Brown show that Brown ’s exigency exception has not created clarity in the law, is in conflict with other, more recent cases, is the type of rule that both this court and the Supreme Court have recognized is overbroad, is not necessary given advances in technology that can eliminate undue delay, and can diminish the incen- tives for making improvements to the warrant process and obtaining warrants when it is practicable to do so. E. Post- Brown Technological and Legislative Changes
In addition to the case law developments since
Brown
,
there have been technological and legislative changes that
support reconsidering ’s
per se
exigency exception.
When was decided in 1986, “[i]t was the present
unavailability of a general speedy warrant procedure that
led the court to allow an exception for warrantless searches
after stops of mobile vehicles.”
State v. Wise
,
In the 35 years since , technology has advanced more than the court even imagined. Computers and smartphones have made instant, wireless communica- tion not only possible, but commonplace. See Riley , 573 US at 385 (noting that cellphones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy”). [9] Law enforcement officers and mag istrates have computers and smartphones. Not only can officers call and speak to magistrates from the field, but they can also make and send audio and video recordings; they can prepare, sign, and send documents; and they can have recorded videoconferences with multiple other people. Advances in technology have enabled officers and district attorneys to more quickly and easily prepare, exchange, and record information necessary to apply for warrants and enabled magistrates to more quickly and easily review that information and issue and record warrants.
As the Supreme Court has observed, “[w]ell over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.” McNeely , 569 US at 154-55. Those processes can “enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essen- tial role as a check on police discretion.” at 155. And, as Chief Justice Roberts has described, it is now possible for warrants to be obtained in less than 15 minutes:
“At least 30 States provide for electronic warrant applica-
tions. * * * Utah has an e-warrant procedure where a police
officer enters information into a system, the systеm notifies
a prosecutor, and upon approval the officer forwards the
information to a magistrate, who can electronically return
a warrant to the officer. Judges have been known to issue
warrants in as little as five minutes. And in one county
in Kansas, police officers can e-mail warrant requests
to judges’ iPads; judges have signed such warrants and
e-mailed them back to officers in less than 15 minutes.”
*37
Id.
at 172-73 (Roberts, C. J., concurring) (internal citations
omitted).
[10]
Even before the advent of current e-warrant
the United States own some sort of cellphone, and 85% own a smartphone).
www.pewresearch.org/internet/fact-sheet/mobile/ (noting that 97% of adults in
[9]
Mobile Fact Sheet (Apr 7, 2021), Pew Research Center, https://
See also
“[e]vidence from other jurisdictions suggests that police officers should be able to
[10]
See also Andersen II
,
Not only has the technology changed since , but the statute governing the warrant process has changed as well. When Brown was decided, ORS 133.545 authorized warrants based on oral statements, commonly referred to as “telephonic warrants,” but only when circumstances made it “impracticable for a district attorney or police offi cer to obtain a warrant in person.” ORS 133.545 (1985). And it required that the oral statements be recorded and transcribed. Since then, the legislature has regularly updated ORS 133.545 to authorize increased use of tele- phonic warrants, to simplify the telephonic warrant process, and to keep pace with changes in technology.
In 1999, the legislature amended ORS 133.545
to enable district attorneys and police officers to obtain
obtain warrants in less than one hour”);
State v. Hawley
, No. 2015AP1113-CR,
In sum, technological and legislative changes since Brown have made it faster and easier to obtain warrants. Now, it is possible for warrant applications to be readily pre- pared and reviewed from separate locations and, if probable cause exists, for warrants to be quickly issued. [11] The tech- nological changes that Brown anticipated have occurred. Consequently, we can no lоnger assume, as the Brown court did, that, as a general matter, it is impracticable for officers to obtain warrants to seize and search vehicles that they stop. [12]
for seizure and search of a vehicle that was mobile when stopped can be quickly few. Consequently, the time-consuming processes of drafting and reviewing that on an officer’s observations during a traffic stop, which are likely to be simple and and clearly relayed to a magistrate. Such seizures and searches are often based the state’s witnesses described in this case are more complex than necessary for described the warrant process many warrants. Indeed, when the court in described a process involving telephonic warrant applications, not written ones. that it believed would eliminate the need for warrantless seizures and searches, it In many cases, an officer’s reasons for believing that probable cause exists [11] To be sure, in some cases the facts underlying an officer’s probable cause determination are based on observations over a longer period of time and are more complex, such as when an automobile seizure and search is conducted based on information gathered over the course of a long-term investigation. But that does not necessarily support retention of the per se exigency exception because, in the course of a long-term investigation, officers are likely to have time to apply for a warrant. time and other resources. tronic warrants show that such warrants are practicable and save agencies , See, e.g. Jason Bergreen, Utah Cops Praise Electronic , Salt Lake Trib. (Dec 26, 2008), https://www.police1.com/fugitive/ Warrant System articles/utah-cops-praise-electronic-warrant-system-umEE2WsodJ9mNKhv/ (reporting that officers using Utah’s e-warrant process say it saves time, is easy The experiences of law enforcement agencies that use telephonic or elec- [12] F. Conclusion Regarding Brown
For all the reasons discussed above, we conclude that it is necessary to overrule ’s exigency exception. The exception was not well founded or clearly reasoned; it was not intended to be permanent; it has not provided sta- bility or clarity; it is incоnsistent with other, more recent cases; given technological changes, it is no longer justified; and maintaining it might well diminish the incentives for jurisdictions to improve warrant processes and for officers *39 to seek warrants when practicable.
Therefore, in order to justify a warrantless seizure or search of a vehicle based on exigent circumstances, the state must prove that exigent circumstances actually existed at the time of the seizure or the search, each of which must be separately analyzed. That is, it must prove that there was a situation requiring swift action “to prevent danger to life or serious damage to property, or to forestall a suspect’s escape or the destruction of evidence.” Stevens , 311 Or at 126.
To prove that such an exigency existed, the state
must prove that it could not obtain a warrant through rea-
sonable steps, which include utilizing available processes for
electronic warrants. Officers “cannot create exigent circum stances by [their] own inaction.”
Matsen/Wilson
, 287 Or at
587 (internal quotation marks omitted);
see also id.
(“The
police cannot weave together a web of information, then
claim exigent circumstances when the suspect arrives and
can conveniently be snared.”). Similarly, law enforcement
agencies and courts cannot create exigent circumstances by
failing to take reasonable steps to develop warrant processes
that protect against the “invasion of the rights of a citizen,”
,
to use, and improves investigations); Heather R. Cotter, How the Traditional Warrant Process Impacts Officer Safety and a PD’s Budget , Police1.com (Aug 29, 2018), https://www.police1.com/police-products/ewarrants/articles/how-the-traditional- warrant-process-impacts-off icer-safety-and-a-pds-budget-rm0581PPArV- JGtYX/ (discussing the benefits to police officers of e-warrants, including improved officer safety, greater data integrity, and significant long-term cost savings). If an exigency exists, it may justify the seizure of a vehicle. But the seizure itself may eliminate any exigency that would justify proceeding further without a warrant. Once officers have seized a vehicle, their control over it may eliminate the need to search it before a warrant аpplication can be processed.
G. Application
Having concluded that the state must demonstrate an actual exigency, we return to the facts of this case. On review, we are bound by the facts found by the trial court if there is evidence in the record to support them. Bliss , 363 Or at 428.
The evidence before the trial court was that the stop occurred on a Monday afternoon. Multiple officers were at the scene and each of them used a telephone during the stop to communicate with others who were not present. The truck was legally parked in a parking lot, and defendant was in custody.
The trial court concluded that the state had failed to show that there was an exigency. It explained that the “state presented no evidence that anyone would move the *40 automobile from the scene while the police sought judicial authorization for the search.” It also explained that the state’s witness had failed to “adequately explain why the police could not observe the vehicle during the period of time needed to obtain a warrant and seize the vehicle only if there was an attempt to move the vehicle.” And, it explained that the state had failed to prove that it could not have obtained a warrant, commenting that it was “unreasonable under the circumstances in this case that no one even considered the idea of calling a judge from the site of the traffic stop to seek judicial authorization.”
The state presented evidence that it would take the officers four to five hours to obtain a warrant and that the officers did not know how to seek a telephonic warrant. But the trial court rejected the argument that it was imprac- tical for the state to obtain a warrant, noting the ubiquity of cellphones, the statutory process for obtaining telephonic warrants, and the number of judges and judicial officers in the county.
The trial court’s factual findings are supported by the record and its legal conclusions are correct. The state failed to establish that exigent circumstances actually existed at the time of the warrantless search. Therefore, the trial court correctly granted defendant’s motion to suppress.
The decision of the Court of Appeals is reversed.
The order of the circuit court is affirmed.