State v. Andersen

346 P.3d 1224, 269 Or. App. 705, 2015 Ore. App. LEXIS 325

• Court: Court of Appeals of Oregon
• Decided: March 18, 2015
• Docket: C111600CR; A150872
• Status: Published

Opinions

ARMSTRONG, J.

Defendant appeals a judgment of conviction for unlawful delivery of methamphetamine that was based on evidence obtained from a warrantless search of defendant’s Jeep. Defendant assigns error to the trial court’s denial of her motion to suppress evidence, arguing that the automobile exception to the warrant requirement did not apply to the search of her Jeep and, hence, that the search violated Article I, section 9, of the Oregon Constitution. We agree with defendant and reverse her conviction.

A Beaverton police officer, McNair, arranged a drug transaction between an informant and Compton, a suspect in drug activity for whom an arrest warrant had been issued. Compton agreed to meet the informant to facilitate the purchase of half an ounce of methamphetamine. Compton served in the deal as a drug broker, telling the informant that defendant would supply the drugs. Compton told the informant to look for a silver Jeep or a red sedan in a WinCo parking lot.

Henderson, a plainclothes officer, circled the WinCo parking lot in an unmarked car, awaiting the transaction. When he returned to the front area of the parking lot, he saw a silver Jeep that had not been there a minute before. The Jeep had stopped some distance away from other vehicles and was positioned askew, across several parking spaces. Henderson watched Compton speak to the occupants and then lean through the open passenger window. Henderson advised other officers of what he believed to be a drug transaction. The officers approached and arrested Compton on the outstanding warrant. Defendant sat in the driver’s seat of the Jeep with the engine running while the police arrested Compton. Defendant asked if she could leave, and McNair said that she could not because she was a subject of a police investigation. Defendant told McNair that she did not want to get out of the Jeep. McNair was concerned, however, about a sheathed dagger on the rear passenger floorboard at the feet of a passenger and ordered everyone in the Jeep to step out of it.

Although she initially refused, defendant ultimately agreed to allow a drug dog to sniff the exterior of the Jeep. The dog sniffed the outside of the Jeep and twice alerted officers to the presence of drugs. Based on the dog’s responses, the officers decided to search the interior of the Jeep. Inside the Jeep, the dog alerted to defendant’s purse, in which the police found half an ounce of methamphetamine and a lipstick case containing additional drugs. The state subsequently charged defendant with both unlawful possession and unlawful delivery of methamphetamine.

Before trial, defendant moved to suppress all evidence obtained from the search of the Jeep, arguing that the automobile exception to the warrant requirement did not apply to the search and, hence, that the search violated Article I, section 9. The trial court denied defendant’s motion. It determined that the automobile exception applied because the Jeep was mobile when the police first encountered it even though it was not moving at that time. A jury convicted defendant of the charged crimes, which led the court to enter a judgment that merged the crimes into a single conviction for unlawful delivery of methamphetamine. Defendant appeals the judgment, assigning error to the denial of her suppression motion.

Article I, section 9, guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.”¹ Under that provision, a search or seizure conducted without a warrant is unreasonable and, hence, violates the guarantee unless it comes “within one of the few specifically established and carefully delineated exceptions to the warrant requirement.” State v. Bridewell, 306 Or 231, 235, 759 P2d 1054 (1988). One of those exceptions is the exigent-circumstances exception, which allows the police to conduct a warrantless search or seizure if it is supported by probable cause and conducted under exigent circumstances. For purposes of the exception, exigent circumstances are those that require the police to act to prevent the loss or destruction of evidence or contraband when they cannot get a warrant before acting.

The Oregon Supreme Court established the Oregon automobile exception as a subcategory of the exigent-circumstances exception in 1986 in State v. Brown, 301 Or 268, 721 P2d 1357 (1986). Before the court created the automobile exception, Oregon police officers who stopped a car that they had probable cause to believe contained evidence of a crime or contraband had to determine whether, in the absence of consent to search the car, exigent circumstances made it necessary for them to seize the car and obtain a warrant to search it or to seize and search the car without a warrant if it was not feasible for them to apply for a warrant.

The court established the Oregon automobile exception in Brown as a “‘per se exigency rule.’” Id. at 277. Under the exception articulated in Brown, police who have lawfully brought a moving automobile to a stop have authority to search it without a warrant if they have probable cause to believe that the automobile contains crime evidence or contraband. Id. at 276. It is the mobility of the automobile at the time that the police stop it that establishes the exigency.

The Brown court acknowledged the importance of the warrant requirement and anticipated that technological advances would likely soon allow “the warrant requirement of the state and federal constitutions [to] be fulfilled virtually without exception.” Id. at 278 n 6. It nonetheless chose to create the Oregon automobile exception because it believed that the police “need clear guidelines by which they can gauge and regulate their conduct rather than trying to follow a complex set of rules dependent upon particular facts regarding the time, location and manner of highway stops.” Id. at 277.

An automobile that is mobile can mean one that is movable, that is, capable of moving, as well as one that is moving.² Brown dealt with an automobile that was moving when the police stopped its driver and, hence, brought it to a stop. Three months after Brown, the court considered in State v. Kock, 302 Or 29, 725 P2d 1285 (1986), whether the Oregon automobile exception applied to an automobile that was not moving but was movable when the police first encountered it in connection with a crime.

In Kock, the defendant’s employer suspected that the defendant was stealing merchandise from the store at which the defendant worked and arranged for police officers to stake out the store parking lot during the defendant’s work shift, which was roughly from 4:00 a.m. to 6:30 a.m. while the store was closed. The officers saw the defendant park his car in the lot before 4:00 a.m. and enter the store without carrying anything with him. He came out of the store at 5:42 a.m. pushing a floor-washing machine with a two-foot long brown box on top that was covered by a newspaper. He left the machine at a loading dock, took the box to his car, removed a package from the box, placed the package behind the passenger seat of his car, and partially covered the package with a pair of pants. After smoking a cigarette, the defendant re-entered the store with the machine, box, and newspaper. Believing that the package that the defendant had placed in his car was merchandise that he had stolen from the store, the police opened the door to the defendant’s car and seized the package, which turned out to contain diapers. After obtaining additional police support, the police entered the store and arrested the defendant for theft. The trial court denied the defendant’s motion to suppress the evidence obtained from the warrantless search of his car, and we affirmed.

The Supreme Court reversed, concluding, among other things, that the search of the car did not come within the Oregon automobile exception. It explained:

“[W]e emphasized in [Brown] that we were not confronted with the search of a vehicle that was not mobile or that had not just been lawfully stopped by a police officer. We are now confronted with such a case. Although logically it can be argued that the rationale of the seminal case of Carroll v. United States, 267 US 132, 45 S Ct 280, 69 L Ed 543 (1925), and its progeny * * * would justify extending the automobile exception to automobiles that are capable of mobility, we elect to draw the so-called bright line of Brown just where we left it in that case: *** [Automobiles that have just been lawfully stopped by police may be searched without a warrant and without a demonstration of exigent circumstances when police have probable cause to believe that the automobile contains contraband or crime evidence. In this case, we assume for the sake of argument that there was probable cause for the search of the automobile. We nevertheless hold that any search of an automobile that was parked, immobile and unoccupied at the time the police first encountered it in connection with the investigation of a crime must be authorized by a warrant issued by a magistrate or, alternatively, the prosecution must demonstrate that exigent circumstances other than the potential mobility of the automobile exist.”

Kock, 302 Or at 32-33 (emphasis added).

In other words, the Oregon automobile exception established in Brown to which the court adhered in Kock applies to automobiles that have just been lawfully brought to a stop by the police, that is, to automobiles that are moving when stopped by the police. It does not apply to automobiles that are parked, immobile, and unoccupied when first encountered by the police in connection with a crime.

The Supreme Court next confronted the reach of the Oregon automobile exception twenty years after Brown and Kock in State v. Meharry, 342 Or 173, 149 P3d 1155 (2006). In Meharry, the fire chief of the City of Umatilla saw the defendant driving her van erratically in Umatilla and noticed that a child was moving from side to side in the back seat of the van. The fire chief called the Umatilla police department on his cell phone while following the defendant. The defendant eventually drove into the parking lot of a convenience store, parked her van, and entered the store. The chief followed the defendant into the parking lot and parked next to the defendant’s van.

A Umatilla police officer responded to the chief’s call and drove out of the parking lot of the police department as the defendant and the chief drove by him. The officer watched as the defendant pulled into the convenience-store parking lot. He followed the defendant into the parking lot in time to see her get out of her van and enter the store. The officer parked his patrol car behind the defendant’s van, saw the child in the van, spoke briefly with the chief, and then followed the defendant into the store. The officer ultimately arrested the defendant for driving under the influence of intoxicants and searched the defendant’s van for evidence of that crime, which led to the discovery of evidence that provided the basis for the state to charge the defendant with a number of crimes.

Before trial, the defendant moved to suppress the evidence obtained from the warrantless search of her van. The trial court granted the motion, and we affirmed. On review, the Supreme Court concluded that the search of the van came within the Oregon automobile exception and, hence, that the trial court had erred in granting the defendant’s suppression motion.

Both we and the trial court had concluded that the van was not mobile when the police officer first encountered it in connection with a crime because the van was parked in the store parking lot when the officer parked his patrol car behind the van and confronted the defendant in the store. The Supreme Court rejected that conclusion, reasoning that the officer

“first encountered defendant’s van in connection with a crime when he saw her drive by the police station. At that point, the van was mobile and [the fire chief’s] reported observations gave [the officer] reasonable suspicion to believe that defendant was driving under the influence of intoxicants.”

Id. at 179.

Further, although the officer had not stopped the defendant and, hence, her van while the van was moving, as the officer had done in stopping the car in Brown, the court did not believe that that difference affected the exigency on which the Brown court had based the Oregon automobile exception. The van in Meharry was as mobile at the time of the search as was the car in Brown notwithstanding that difference, in that both could readily be moved ‘““out of the locality or jurisdiction in which the warrant must be sought.’”” Id. at 180 (quoting Brown, 301 Or at 275 (quoting Carroll, 267 US at 153)).

As the Supreme Court subsequently confirmed in State v. Kurokawa-Lasciak, 351 Or 179, 263 P3d 336 (2011), the effect of Meharry was twofold. It established that the Oregon automobile exception does not require the police to bring a moving vehicle to a stop in order for the exception to apply. In other words, the exception is not limited to the search of vehicles that have just been lawfully brought to a stop. However, for a vehicle that was not moving when stopped by the police, the exception requires the vehicle to be mobile when the police first encounter it in connection with a crime and, as in Meharry, that means that the vehicle must be moving at the time of the encounter for the exception to apply.

The Supreme Court had to revisit the application of the Oregon automobile exception in Kurokawa-Lasciak because, relying on Meharry and several of our own cases, we had held in Kurokawa-Lasciak that “ ‘a vehicle is “mobile” for purposes of the automobile exception as long as it is operable,’” 351 Or at 185 (quoting State v. Kurokawa-Lasciak, 237 Or App 492, 497-98, 239 P3d 1046 (2010), rev’d, 351 Or 179 (2011)), and, based on that understanding, we had upheld under the automobile exception a search of a van that was parked, immobile, and unoccupied when the police first encountered it in connection with a crime. Neither the defendant nor the state agreed with our interpretation of Meharry. As for the state, it framed the question on review as one that was “left open” after Meharry — viz.,

“‘when officers first encounter a car in connection with a crime, does the automobile exception’s “mobility” requirement demand evidence that the officers saw the car being driven, or is it enough that (1) officers develop probable cause that the car contains evidence of a crime, and (2) no evidence exists that the car is inoperable?”’

Id. at 186.

In answering that question, the court undertook an extensive review of its cases that had created and applied the Oregon automobile exception, namely Brown, Kock, and Meharry. Its review led it to emphasize two basic themes. First, the Oregon exception is a narrow exception that is intended to create a bright-line rule to guide the police and citizens regarding the warrantless search of automobiles that are subject to the exception while otherwise recognizing the importance of “the constitutional requirement that a neutral magistrate, and not officers in the field, determine the existence of probable cause to search.” Id. at 193.

Second, the bright line that the court had drawn to identify automobiles that are subject to search under the Oregon exception — viz., that they had to be mobile when first encountered in connection with a crime — could logically be drawn elsewhere. As the court explained, the Kock court had acknowledged

“that, logically, the defendant’s parked vehicle was as capable of mobility as was a vehicle that was moving when it was stopped by the police, and that the United States Supreme Court had interpreted the warrant requirement of the federal constitution to permit warrantless searches of automobiles ‘capable’ of mobility. [Kock, 302 Or] at 32. However, the court specifically elected not to adopt the Supreme Court’s rationale or to extend the Oregon exception. Instead, the court chose to ‘draw the so-called bright line of Brown just where [it] left it in that case[.]’ Id. at 32-33.”

Kurokawa-Lasciak, 351 Or at 189-90 (footnote omitted).

Those principles provide the underpinning for the distinction that the Kurokawa-Lasciak court said was crucial to its decision in Meharry. The van in Meharry came within the Oregon automobile exception because of its status when the officer first encountered it in connection with a crime — viz., when it was moving. The van’s status when the officer parked behind it in the parking lot of the convenience store — viz., parked within moments of the officer’s arrival, occupied by a passenger, and with the driver running an errand in the store who would promptly have driven the van away had the officer not intervened — was insufficient to bring the van within the exception. Id. at 191-93.

The distinction in the van’s status that th eKurokawaLasciak court identified is strictly binary, which is consistent with the two meanings of the word “mobile,” viz., moving and movable. The van in Meharry was moving — not movable or capable of mobility — when the officer first encountered it. The van was movable or capable of mobility — not moving — when it was in the parking lot. Hence, although the court did not put the point this way, the answer to the question that the state had posed on review in Kurokawa-Lasciak — whether mobility for purposes of the Oregon exception requires officers to see the car being driven when they first encounter it in connection with a crime — is “Yes.”³

Here, defendant’s Jeep was parked in a parking lot when the officers first encountered it in connection with a crime. Although it had arrived in the parking lot within a minute of when the officers encountered it, had its engine running, and was occupied by a driver who presumably would promptly have driven it away had the officers not intervened, the Jeep was not moving when the officers encountered it, but, rather, was movable or capable of moving. It follows that the Jeep was not mobile for purposes of the Oregon automobile exception and, hence, was not subject to a warrantless search under the exception.

Although the search of the Jeep did not come within the per se exigency rule of Oregon’s automobile exception, the Jeep might nonetheless have been subject to a warrant-less seizure and search by the police under the exigent-circumstances exception to the warrant requirement. However, the state did not undertake to establish that the search was authorized under that exception or any other exception to the warrant requirement. Hence, the warrant-less search of the Jeep violated Article I, section 9, and the trial court erred in denying defendant’s motion to suppress the evidence obtained from the search.

The dissent disputes our conclusion. In its view, it is not necessary for a vehicle to be moving when the police first encounter it in connection with a crime — or, alternatively, for the police to bring it to a stop while it is moving — in order for the vehicle to come within the Oregon exception. According to the dissent, it is sufficient that the vehicle be one that has moved recently and that is occupied by a driver who would promptly drive it away if the police did not intervene.

As our discussion of Kurokawa-Lasciak and Meharry indicate, 269 Or App at 711-15, the dissent’s understanding of the Oregon exception cannot be squared with the Supreme Court’s conclusion in Kurokawa-Lasciak that the van in Meharry came within the Oregon exception because of its status when the police first encountered it in connection with a crime — that is, when it was moving — and not its status when the police encountered it in the parking lot. Kurokawa-Lasciak, 351 Or at 192-93. The driver in Meharry had parked her van in the convenience-store parking lot a minute or so before the officer arrived and parked his patrol car in the lot. By the time the officer arrived, the driver had left her van to go into the store to run an errand and had left a child in the van while she did that. The officer confronted and stopped the driver in the store, but, had the officer not stopped the driver at that point, she would have returned to her van and continued on her way. In other words, when the officer encountered the parked van in the parking lot, the van was not moving but it and its driver were in the midst of traveling from one place to another. Nonetheless, the court explained in Kurokawa-Lasciak that the status of the van in the parking lot was insufficient to bring the van within the Oregon exception. The van came within the exception only because of its status when the officer first encountered it in connection with a crime, which was when the van was being driven to the parking lot, that is, when it was moving. Id.

Here, when the police first encountered the Jeep in connection with a crime, it was parked in a store parking lot. It had arrived a minute before the police arrived, and the driver was in it with the engine running when the police stopped the driver. The only difference between the Jeep in this case and the van in the parking lot in Meharry is the location of their respective drivers. That difference bears on how quickly the two parked vehicles would have moved but for the intervention of the police, viz., perhaps seconds for the Jeep and a minute or two for the van, but that is not a difference that has (or can have) any significance to the application of the Oregon exception. Because the parked van in Meharry did not come within the Oregon exception based on its status when the police encountered it in the parking lot, it follows that the parked Jeep did not come within the exception, either.

The dissent disputes that the Oregon exception is based on a strictly binary distinction between vehicles that are moving and those that are movable when the police first encounter them in connection with a crime. However, the distinction is a necessary consequence of the Oregon Supreme Court’s decision to establish an automobile exception as a form of per se exigency that is not coextensive with the federal exception and that identifies the circumstances that bring automobiles within the Oregon exception.

The standard that the dissent urges is similar to the standard for the federal automobile exception that the Kock court rejected. The Kock court identified California v. Carney, 471 US 386, 105 S Ct 2066, 85 L Ed 2d 406 (1985), as a case in which the United States Supreme Court had extended “the automobile exception to a stationary but operational vehicle in a public parking lot as being as readily mobile as one just stopped on a highway.” Kock, 302 Or at 29. Tellingly, the vehicle in Carney was occupied by its driver in the parking lot when the police first encountered it in connection with a crime. Carney, 471 US at 387-88. Nonetheless, the Kock court rejected the federal standard embodied in Carney, which applies to vehicles that are movable when first encountered by the police in connection with a crime, for the Oregon standard established in Brown, which the Kock court identified as applying to “[s]earches of automobiles that have just been lawfully stopped by [the] police,” Kock, 302 Or at 33, that is, to vehicles that are moving when the police stop them. As applied in Kock, that meant that a vehicle that had been parked by the defendant in his employer’s parking lot two hours before the police connected the vehicle to a crime, and that would have been driven away by the defendant half an hour later at the end of his work shift, did not come within the Oregon exception. See id. at 31-34. The facts in Kock brought the vehicle within the federal automobile exception and would likely have provided a basis for the state to justify the search as one that came within the exigent-circumstances exception to the warrant requirement, but those facts did not bring the vehicle within the Oregon automobile exception.

Of course, contrary to the Kock court’s description of the Oregon automobile exception as one that applies to vehicles that the police have lawfully brought to a stop, see Kock, 302 Or at 33, the Oregon Supreme Court later made clear in Meharry that the police need not bring a moving vehicle to a stop in order for the Oregon exception to apply. However, as we have explained, the court subsequently made clear in Kurokawa-Lasciak that the application of the Oregon exception in Meharry depended on the status of the van when the police first encountered it in connection with a crime, which was when the van was moving.

By rejecting the application of the Oregon exception to vehicles that are movable or capable of moving when first encountered by the police, the Oregon Supreme Court necessarily was left with a standard of mobility that is focused on the alternative meaning of mobility, namely a “moving body or part,” here, a moving vehicle. Tellingly, no Oregon Supreme Court case has applied that term to a vehicle that was not moving when first encountered by the police in connection with a crime or that was not lawfully brought to a stop by the police.

The dissent contends that a strict distinction between moving and movable vehicles operates to exclude from the Oregon exception vehicles whose functional status is indistinguishable from vehicles that come within the exception. We do not dispute that a bright-line rule that distinguishes between vehicles that are subject to a rule of per se exigency and those that are subject to an individualized assessment of exigency under the exigent-circumstances exception has that effect. As noted earlier, the van in the parking lot in Meharry is functionally equivalent to the Jeep in this case in terms of the likelihood and imminence of their respective movement. Nonetheless, as Kurokawa-Lasciak made clear, the status of the van in the parking lot in Meharry — viz., parked, immobile, and unoccupied (by its driver) — did not bring it within the Oregon exception. 351 Or at 192-93. It came within the exception because of its status when the police first encountered it in connection with a crime, which was when it was moving.

Finally, the dissent contends that our application of the Oregon exception in this case undermines the exception by requiring the police and courts to make individualized decisions about exigency in circumstances that the exception is intended to avoid. That is not correct. Our application of the Oregon exception simply preserves the distinction that the Oregon Supreme Court established in Brown and Kock and adhered to in Meharry and Kurokawa-Lasciak. Vehicles that come within the Oregon exception are subject to its per se exigency rule. Vehicles that come within the more expansive federal automobile exception are subject to the exigent-circumstances exception, which requires an individualized determination of exigency. We simply adhere to the balance between those two categories that the Supreme Court already has struck.

Because defendant’s Jeep was parked in a store parking lot when the police first encountered it in connection with a crime and the police did not bring it to a stop, the Jeep was not subject to being searched under the Oregon automobile exception to the warrant requirement. The trial court erred in concluding otherwise and in denying defendant’s suppression motion.

Reversed and remanded.

1 Article I, section 9, provides:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

2 See, e.g., Webster’s Third New Int’l Dictionary 1450 (unabridged ed 2002) (defining “mobile” to mean, among other things, “a movable or moving body or part: one that is mobile”).

3 The court acknowledged that the distinction between a moving and movable car might seem somewhat contrived, but it nonetheless believed that the bright-line rule established in Brown and Koch had struck the appropriate balance under Article I, section 9:

“We acknowledge the logic of the state’s position — that it is just as likely that a person in control of an operable car will drive off with evidence or contraband as will a person in control of a car that was mobile at the time of the initial encounter and that remains mobile thereafter. But we also are cognizant that, when the court recognized the automobile exception in 1986, it was careful to recognize a limited exception to the constitutional requirement that a neutral magistrate, and not officers in the field, determine the existence of probable cause to search. The court drew the ‘bright line’ that it did to benefit both the police and the citizens of this state. * * * Therefore, we adhere, as the court did in Meharry, to the line that the court drew in Brown and Koch”

Kurokawa-Lasciak, 351 Or at 193.