State v. Burr

901 P.2d 873, 136 Or. App. 140, 1995 Ore. App. LEXIS 1163

• Court: Court of Appeals of Oregon
• Decided: August 23, 1995
• Docket: 930258CR to 930261CR CA A83869 (Control) to CA A83872
• Status: Published

Opinions

EDMONDS, J.

Defendants were each charged with one count of manufacture of a controlled substance and one count of possession of a controlled substance. ORS 475.992(1), (4)(a). Before trial, defendants moved to suppress evidence seized following a warrantless search of a pickup and the admissions obtained from defendants thereafter. The trial court granted defendants’ motion, and the state appeals. ORS 138.060(3). The issue is whether the warrantless search violated defendants’ constitutional rights under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. We reverse.

The trial court found:

“1) On October 7, 1993, on highway 281 in Hood River County at approximately 9:50 p.m., Hood River Sheriffs Deputy Jim Tomson, while on patrol, observed a pickup truck parked on the east shoulder of the road. The truck’s lights were off and it did not create a traffic hazard. The deputy was in his patrol car and in uniform. He pulled up, parked perpendicular to the pickup and got out to see if any assistance was needed. The four defendants were present in the area of the pickup and said that the vehicle had overheated. Shortly thereafter, they said they had been hunting. The deputy noted that the pickup did not appear to be hot, even though the defendants said they had just pulled up to this area. The deputy noted a deflated rubber raft located at the rear of the pickup. The individuals were placing the raft into the bed of the pickup.

“2) It was dark at this time. The deputy noted there were no guns in or about the pickup. The defendants offered a third story to the deputy; they were looking the area over and had left their weapons at home in Gresham.

“3) The deputy asked the individuals for identification and papers on the pickup. They produced identification and the deputy ran an ID check through the Hood River County Sheriffs dispatch.

“4) Deputy Tomson was notified by dispatch that Noah Burr was wanted on a felony warrant for Menacing, Unlawful Use of Weapons, Delivery of a Controlled Substance and Tampering With a Witness and was told to use caution when dealing with Mr. Burr.

“5) Up to this point, the individuals were cooperative and friendly. The Deputy did not tell them they could not leave.

“6) Upon being informed by Dispatch of Mr. Burr’s warrant, Deputy Tomson placed Mr. Burr under arrest and put him in the patrol car.

“7) With Deputy Tomson was Jason Ritock, an unarmed reserve officer who.was not in uniform. After placing Mr. Burr in the patrol car, Deputy Tomson, standing at a distance from the remaining three individuals, asked them who owned the pickup. He was informed that the pickup belonged to Mr. Van Bergen’s grandmother.

“8) Approximately five to eight minutes after the time Deputy Tomson was informed of Mr. Burr’s outstanding warrant, Deputy Sheriff Paul Ufford arrived upon the scene.

“9) Deputy Tomson observed four Coors beers in the bed of the pickup that were partially covered by the rubber raft. Between the time that Mr. Burr was placed under arrest and Deputy Ufford arrived, Deputy Tomson discussed with the remaining defendants their various stories, and questioned them as to why they were really there. At no time prior to Deputy Ufford arriving did Deputy Tomson tell the defendants that they could not leave. There was some discussion about who would drive the pickup. Deputy Tomson was concerned about who was licensed to drive.

“10) When Deputy Ufford arrived, he had his overhead lights on and parked his vehicle parallel to Tomson’s and perpendicular to the pickup. There was room for the pickup to leave; it was not blocked by either patrol vehicle. Upon Ufford’s arrival, Tomson informed him of the three stories told by the remaining defendants. Deputy Ufford nodded and walked over to the three individuals by the pickup. Tomson was concerned about the status of the pickup in that neither the registered owner, nor the claimed owner was at the scene. When Ufford arrived at the scene, he noticed one of the individuals in the patrol car and the other three standing by the bed of the pickup. Tomson had not turned on his patrol car’s overhead lights or siren, nor had he drawn his weapon. When Ufford arrived, he left his car’s overhead lights on, but did not pull out his service revolver.

“11) Almost immediately upon getting out of his patrol car, Ufford smelled marijuana. Ufford testified credibly that he suffers severe allergic reactions when exposed to marijuana and after leaving the scene, he was unable to complete his duty shift as a result of this exposure. At the time Ufford smelled the marijuana, he stated, “Where’s the dope?” He walked around the far side of the pickup to check on the passenger side, opened the passenger door, looked on the floor board and didn’t see anything.

“12) Deputy Ufford then moved to the rear of the pickup and the smell of marijuana grew stronger. He moved the raft covering the pickup bed and uncovered two ice chests. When he removed the raft, the marijuana smell was even stronger. He noted a marijuana leaf sticking out of one of the ice chests. He opened the ice chest and observed marijuana protruding from backpacks inside the chest. The ice chest in which the marijuana leaf was visible to the deputy contained two packs with marijuana leaves sticking outside of the bags. The bags were approximately 14 inches wide by eight inches deep and 14 inches high and were stuffed inside the ice chest. They were full of freshly cut marijuana.”

We are bound by the trial court’s express or implicit findings provided that they are supported by evidence in the record. In this case, they are. In its conclusions of law, the trial court said, “The vehicle was neither occupied nor mobile at the time Deputy Therman first observed it.” Accordingly, our function is to decide whether the trial court erred when it concluded as a matter of law that the pickup was not “mobile.” State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993).

The state argues that the application of the “automobile exception” to the general prohibition against warrant-less searches was justified under the circumstances of this case. That exception provides that “if police have probable cause to believe that a person’s automobile, which is mobile when stopped by police, contains contraband or crime evidence,” they may conduct a warrantless search of the vehicle for those items. State v. Brown, 301 Or 268, 276, 721 P2d 1357 (1986). Defendants argue that the automobile exception does not apply to the facts of this case because the pickup was parked and they were outside its cab at the time the officers encountered it.

A review of the case law is instructive in deciding this issue. In Brown, the defendant was stopped while he was driving his automobile. When the defendant declined to consent to a search of his automobile, the officers searched the passenger’s compartment and the glove box for evidence that would support the accusation that he was in possession of a weapon. The Supreme Court held:

“This case presents for us the heretofore unanswered question: Is there an ‘automobile exception’ to the warrant requirement of Article I, section 9, of the Oregon Constitution? We hold that there is such an exception, provided (1) that the automobile is mobile at the time it is stopped by police or other governmental authority, and (2) that probable cause exists for the search of the vehicle.” 301 Or at 274.

The decision in Brown was followed by State v. Kock, 302 Or 29, 725 P2d 1285 (1986). In Kock, two police officers were watching the parking lot and entry area of a store where the defendant worked. The store manager had told the police before the surveillance that the defendant did not have permission to take merchandise from the store. The defendant customarily worked in the store between 4:00 and 6:30 a.m. The officers saw him come to work and enter the store between 3:30 and 4:00 a.m. He did not take anything into the store with him. At 5:42 a.m., they saw him leave the store with a box, which he took to his car. He removed a package from the box and put the package in the car. After smoking a cigarette, the defendant returned to the store, taking the box with him. When the defendant had left, the officers searched the car and seized the package.

The court held that the automobile exception did not apply. It said:

“[W]e elect to draw the so-called bright line of Brown just where we left it in that case: Searches of 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. Here, the prosecution failed to demonstrate any individualized exigent circumstances.” 302 Or at 32-33.

In the light of Brown and Kock, we decided State v. Cromwell, 109 Or App 654, 820 P2d 888 (1991). In Cromwell, officers responded to a report of a prowler near a residence. They located the defendant’s truck parked in the middle of the roadway, its engine not running and its parking lights on. The defendant and a companion were in the truck. Upon being contacted by the officers, the defendant voluntarily revealed marijuana that was located in separate containers under his jacket on the seat of the truck, and in his shirt pocket. We held that those facts provided probable cause to believe that other caches of marijuana would be found elsewhere in the truck. Subsequently, the officers searched the truck and seized methamphetamine in a container in the pocket of the jacket that was on the seat of the truck.

In analyzing whether the automobile exception permitted the warrantless search of the truck, we said:

“The automobile exception does not apply to a vehicle that is parked, immobile and unoccupied when police encounter it, unless there are exigent circumstances in addition to the vehicle’s ‘potentialmobility.’ State v. Kock, 302 Or 29, 33, 725 P2d 1285 (1986). Defendant’s truck was not unoccupied when the officers encountered it. Defendant and his companion were sitting in it, parked in the middle of a road, with the parking lights on. The truck was not actually in motion when police encountered it, but to say that it was ‘immobile’ draws too fine a distinction. The truck was ‘mobile’ in that defendant could have driven away at any moment. The fact that defendant had not yet turned the key was merely fortuitous. The search of defendant’s truck was lawful, and the trial court correctly denied his motion to suppress.” 109 Or App at 659 (citation and footnote omitted; emphasis supplied).

In State v. Warner, 117 Or App 420, 844 P2d 272 (1992), the defendant appealed his conviction for possession of a controlled substance and assigned error to the trial court’s denial of his motion to suppress evidence obtained in a warrantless search of his pickup. The arresting officer had information that the defendant might be carrying methamphetamine. He first saw the defendant’s pickup traveling in the opposite direction at a very slow speed. After the defendant’s vehicle went by, the officer saw it move onto the shoulder and stop. The defendant got out and opened the hood. The officer turned around and parked behind the pickup without turning on his overhead lights. The defendant lowered the hood and approached the driver’s door. The officer asked the defendant if he needed help, but the defendant did not respond. Instead, he got in the pickup and attempted to start it. The pickup’s engine sputtered and then died. Because the officer detected the odor of methamphetamine emitting from the defendant, he searched the vehicle. Subsequently, he seized controlled substances from it.

We reversed the trial court’s application of the automobile exception rule to those facts. We said:

“If the car is not moving, nevertheless, it is considered to be ‘mobile’ if it is occupied and operable when the police first encounter it. * * * In Cromwell, although the defendant’s pickup was parked when police encountered it, it was operable and the defendant was sitting in the driver’s seat. We held that the automobile exception authorized a warrantless search of the pickup, because the police had probable cause to believe that it contained evidence of a crime.

“In this case, the trial court found that defendant’s pickup was ‘sufficiently mobile (startable and moveable) to allow the vehicle’s immediate search at the time of the “stop.” ’ The evidence, however, is that the pickup was crippled when [the officer] first observed it and broke down shortly thereafter. Defendant tried to fix it, but the engine sputtered on the first attempt to re-start it and would not fire after that. The evidence does not support the trial court’s finding that the pickup was mobile at that time. The search cannot be justified under the automobile exception.” 117 Or App at 423-24 (citation and footnote omitted; emphasis supplied).

In the light of our interpretation in Cromwell and Warner of the meaning of the word “mobile,” we turn to this case. Based on the facts that it found, the trial court concluded that the pickup was not “mobile” within the meaning of the automobile exception. It reasoned:

“The vehicle was parked and the occupants were outside the vehicle. Additionally, the deputy testified that the hood of the pickup was cold, indicating it had not been driven for some period of time. The automobile exception does not apply to the facts in this case.”

The rationale underlying the automobile exception is to prevent evidence of criminal activity from being quickly moved out of the locality in which the warrant must be sought. Brown, 301 Or at 275. Here, defendants were observed loading a raft onto the pickup that was parked alongside a public highway. The fact that defendants were not in the cab of the vehicle is a mere fortuity. They need only have taken a few steps to have placed themselves in the vehicle in order to leave. In the light of the rationale for the rule, it would be a curious result to hold that the pickup was not mobile because defendants were standing outside the cab instead of sitting inside it when either circumstance would permit the driver to immediately drive off. In that sense, the pickup was “occupied and operable” when the police first encountered it. Warner, 117 Or App at 423.

The dissent believes that the facts of this case are indistinguishable from the facts in Kock and that our decision in Cromwell was wrongly decided. It would hold that the occupants would have to be inside the pickup and the engine running for the automobile exception to apply. In Kock, the defendant had left the locale of the automobile, which was parked in a parking lot adjacent to a store. When the police conducted their search, he was inside the store where he worked. Therefore, it was uncontroverted that his car was not occupied at the time of the search. Here, as in Cromwell, the vehicle was mobile because its occupants were in a position to operate it and leave in it immediately when the police first encountered it. Adopting the dissent’s position would require us to retract our interpretation of what the word “mobile” means as expressed in Warner and in Cromwell.

Also, under the dissent’s analysis, the officers would have been required to wait at the scene until defendants got into the vehicle and moved it before making a permissible stop and search. That analysis exalts form above substance because the probable cause to search existed as soon as the officer smelled the marijuana. It makes little sense to interpret the constitutions in a way that requires the officers to permit the vehicle to roll several feet before effecting the search. Under the circumstances of this case, the reason for the per se automobile exception exists whether the driver of the vehicle is seated behind the steering wheel or is outside the car door.

In summary, we conclude that the trial court erred when it concluded as a matter of law that the automobile exception does not apply under these facts. The pickup was parked along a public highway at night in an isolated area, and defendants were loading a raft into it when Tomson arrived. The requirement of mobility was met because defendants could have driven away in the pickup at any moment. Inasmuch as the officers had probable cause to search as a result of the smell of marijuana emitting from a mobile vehicle, the exigency of otherwise losing evidence of criminal conduct because of the delay inherent in procuring a search warrant justified an immediate search.

Reversed and remanded.