State v. RuizState v. Ruiz
The state appeals an order granting defendant’s motion to suppress evidence seized from a warrantless search of his automobile. The state contends that the seizure without a warrant was lawful under the state constitution because of the exigent circumstances of the automobile’s mobility or, alternatively, because the search was incident to defendant’s arrest. We agree that the search was reasonable under the state constitution because of exigent circumstances and reverse the order granting defendant’s motion to suppress.
Trooper Madsen stopped defendant’s vehicle because it was weaving for several miles in a southbound lane of traffic on Interstate 5. Madsen later testified that defendant appeared to be “very nervous,” his speech was “slow and lethargic,” he had “open sores on his arms and face” and “white foam” at the corners of his mouth, his eyes were “real droopy,” and he appeared to be having a hard time staying awake. Based on those observations, Madsen concluded that defendant was under the influence of either alcohol or a narcotic. Madsen obtained defendant’s identification and requested a warrant check. The dispatcher reported that defendant had an outstanding arrest warrant. Madsen removed
After patting down defendant for weapons and giving Miranda warnings, Madsen asked defendant for permission to search his vehicle, and defendant refused. Defendant did, however, consent to the administration of field sobriety tests. Defendant’s performance on those tests convinced Madsen that defendant was under the influence of narcotics. After defendant was placed in the back of Madsen’s patrol car, one of the troopers noticed a baggie on the ground where defendant had taken the field sobriety tests. The baggie contained a white substance that field tested positive for methamphetamine. Madsen asked defendant if the baggie belonged to him, and defendant denied ownership. Madsen then questioned defendant about drug use, and defendant responded that he was a “junkie” and that he had taken heroin just a few hours before being stopped by Madsen.
While defendant and Madsen were talking in the patrol car, a Salem police officer arrived with a police dog trained to detect drugs. After a canvass of the outside of the vehicle, the dog indicated the presence of drugs inside the rear passenger door. The police dog was deployed to investigate the inside of the automobile, and the dog directed attention to a black nylon toiletries bag lying on the floor behind the front passenger seat. The officer opened the toiletries bag and found a clear plastic bag that contained a brown substance that appeared to be tar heroin. Field testing confirmed that impression. A state trooper searched the center console between the front seats of the vehicle and found a Colt .45 automatic pistol and a Crown Royal bag that held $25,440 in cash.
Defendant was indicted for delivery of a Schedule I controlled substance (heroin), possession of a Schedule II controlled substance (methamphetamine), being a felon in possession of a firearm, and driving while under the influence of intoxicants. Before trial, defendant moved for the suppression of “all evidence, including derivative evidence, intended to be used against defendant at trial,” because “the search and seizure of any and all evidence was unlawful pursuant to Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution.”
1
His supporting memorandum of law cited authority that warrantless searches are unreasonable under the state and federal constitutions, unless conducted under a recognized exception to the requirement of a search warrant, and relied solely on
State v. Kruchek,
The state responded that the search was reasonable without a warrant under Article I, section 9, because the vehicle was not impounded before the search, and the exigent circumstances of mobility continue until its impoundment. Alternatively, the state argued that the search was proper as incident to defendant’s arrest.
Madsen testified at the suppression hearing that, at the time of the search, the automobile was “under [his] control,” that a tow would be ordered when the investigation was complete, but that he “wasn’t at that time going to call a tow at all.” The trial court commented at the suppression hearing:
“I don’t think this is an auto exception case because the police had possession of the car. In other words, the car was not going to drive off. They were going to impound it, so there wasn’t any exigent circumstances requiring search.”
Following further briefing, the trial court issued a letter opinion that stated:
“The Court has read all the cases cited by both parties and it is this Court’s opinion that State v. Kruchek, 156 Or App 617 (1998), and State v. Resler,163 Or App 328 (1999), apply and the search shall be suppressed.
“The attorney for the defendant shall prepare the order.”
The resulting order granted the motion to suppress, without further elaboration, “for the reasons stated in the [defendant's motion to suppress.”
We review the trial court’s legal conclusion that the search was unreasonable under Article I, section 9, of the Oregon Constitution for errors of law appearing upon the record. ORS 138.220. A trial court’s findings of historical fact are binding on review if there is supporting evidence in the record.
State v. Ehly,
The parties renew on appeal their contentions below. However, defendant adds the argument that there is a separate basis to affirm in this case. He contends that the trial court ruling was based on
both
the state and federal constitutions and, because the state failed to advance arguments in its opening brief on the federal constitutional question, it waived its right to object to the order on federal constitutional grounds. Defendant relies on two cases for the proposition that, when a trial court makes a decision on multiple theories, an appellant must show on appeal that all theories were erroneous.
See Roop v. Parker Northwest Paving Co.,
In
Roop, Duncan,
and
Stoudamire,
however, the trial courts explicitly decided the cases on alternative grounds that were not disputed on appeal. Here, the trial court ruling was based on “the reasons stated in the [d]efendant’s motion to suppress.” Defendant’s supporting memorandum to the motion references the Fourth Amendment but does not contain any distinct analysis of that federal constitutional provision. The memorandum states only that
Kruchek
“dictates this case.” The trial court’s letter opinion also cites only
Kruchek
and
State v. Resler,
Nor is this case an appropriate one to address any Fourth Amendment issue. On appeal, defendant does not argue that the search of the automobile might violate the Fourth Amendment if it satisfied the requirements of Article 1, section 9. Because the parties did not make any distinct federal constitutional arguments in the proceedings below, and because defendant does not pursue that argument on appeal, we decline to consider the federal constitutional question.
See Outdoor Media Dimensions Inc. v. State of Oregon,
The controlling law is stated in
State v. Brown,
We determined in
Kruchek
that an automobile ceases to be mobile when it is impounded and that a warrant is required for a search after impoundment.
In
Getzelman,
the defendant challenged the trial court’s denial of his motion to suppress evidence obtained from a warrantless search of his backpack, found in a car in which he was a passenger. The trial court denied the motion on the ground that the search was authorized by the automobile exception to the warrant requirement of Article I, section 9. The defendant argued on appeal that the automobile exception did not apply because, at the time of the search, he had been arrested and the narcotics team had secured the car. According to the defendant, the police possession of the automobile was a “seizure” and the functional equivalent of impoundment, and, therefore, the automobile exception did not apply under the logic of
Kruchek. Getzelman,
In rejecting that argument, we noted that, “[w]ith good reason, we did not hold in
Kruchek
that any police action short of actual impoundment or other confiscation of a stopped vehicle would extinguish its mobility. Such a conclusion would be squarely at odds with controlling case
law.” Id.
at 599 (footnote omitted). Instead, we observed that “[t]he automobile exception does not focus on the mobility of a vehicle at the time it is searched but, rather, on its mobility at the
time it was stopped.” Id. at 600;
see also State v. Kosta,
We held in Getzelman that an automobile ceases to be mobile only when it is impounded in accordance with established police procedures:
“In the end, Kruchek is reconcilable with Brown and Kosta based on the premisethat a vehicle that was mobile when stopped is no longer merely stopped once impoundment has occurred in accordance with established police procedures. Viewed in that light, Kruchek does not offend the aim of clarity underlying the per se nature of the automobile exception. By contrast, the rule of constructive impoundment advocated by defendant would return police to the complex task of legal fact-matching under dynamic field conditions that the court in Brown sought to avoid. Further, defendant’s theory cannot be reconciled with results in Brown and Kosta that were based on circumstances comparable to those found here. Unlike in Kruchek, there is no evidence that, when the search of defendant’s backpack occurred, the car was impounded or that the investigating officers had arranged for it to be towed. Because the stop of [the] vehicle had not been converted to an impoundment, the mobility requirement of the automobile exception was satisfied.”
Similarly, in
Forrister,
the defendant challenged the trial court’s denial of a motion to suppress evidence obtained as a result of a warrantless search of his car. He argued that his car was no longer mobile when officers searched it because he was under arrest and the officers planned to tow his car.
Based on Getzelman and Forrister, we hold that the search of defendant’s vehicle was subject to the automobile exception to the warrant requirement in Article I, section 9. Defendant’s vehicle was mobile at the time it was stopped. Defendant’s vehicle was searched before the officers had arranged for or secured a tow, in accordance with established police procedures. For those reasons, the warrantless search of the vehicle did not violate defendant’s rights under Article I, section 9. Therefore, the trial court erred in granting defendant’s motion to suppress.
Because the search was justified under the automobile exception, we need not address the state’s alternative argument that the search could also be justified as a search incident to defendant’s arrest.
Reversed and remanded.
Notes
Article I, section 9, of the Oregon Constitution provides, in part, that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * The Fourth Amendment to the United States Constitution provides, in part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * *
On appeal, defendant does not specifically challenge the existence of probable cause, so we do not address it.